W (Gifted Child: SGO / Adoption), Re

It is rare after a legal career spanning some 38 years to come across a novel family problem. In this case a baby (W) was ‘gifted’ as an act of love and compassion by one sister (Mrs L) and her husband (Mr L), who already had two boys, to another ‘sister’ and her husband (Mr and Mrs N) who were desperate but unable to have their own family. And so baby W has been raised by Mr and Mrs N since he left hospital. He views them as his mum and dad. Mr L and Mrs L and their 3 children (another son was born after W) were to W his uncle, aunty and cousins although in truth they are his biological parents and his brothers. An SGO was made in 2019 but in November 2022 Mr and Mrs N made an application to adopt W. Mr L and Mrs L do not consent to his adoption. In the course of the adoption proceedings W has been told the truth. I am to determine whether to make an adoption order or to maintain the Special Guardianship order. It is agreed whatever substantive order I make that a spending time with order should also be made which specifies the time that W should spend with his birth family. It is clear from both sets of parents that they were motivated by noble but short term and adult-centric emotions when they made the decision that W should be ‘gifted’. From what I have seen and read, none of them appreciated the magnitude of the possible consequences for themselves and W and his brothers of that gifting but they have lived the consequences and will continue to do so for the rest of their lives. They were adults when they took the decision and so they must bear their own responsibility. W was a baby who had no say in a decision that has set his life on a near unique and uncharted trajectory where the consequences for him are very hard to predict. His brothers had no say. W most of all will live with the consequences of that compassionate but adult-centric decision. It will surprise no one reading this that within a very short space of time the decision began to create distortions in the fabric of the families lives which continue to this day and will likely continue. Mrs L experienced what seems like quite serious post-natal depression and in the fullness of time she and Mr L concluded that to fill the W shaped gap in their lives another child was needed. That seems to have worked to some degree. Mr L is demonstrably torn by regret and honour; he has thought deeply about what he might be confronted with from W and his own sons as they grow into adolescence and adulthood. He has become emotionally distanced from Mr N who was his best friend for some years. Mrs N and Mrs L are still close and the impact on their relationship has not been much illuminated in this hearing; I sense it must be profound, but their love and respect provides a protective veneer which masks what has happened to their relationship at a more profound level. At an instinctive level Mr and Mrs N sense the absence of the blood tie to W and his blood tie to Mr L, Mrs L and his brothers and this underpins their insecurity and anxiety and their yearning to be a family like any other with all the joys and responsibilities associated with that bond.

In amongst that maelstrom of adult emotion is a little boy whose world axis was altered by the revelation that it was not as he had thought. He was said to be distressed and confused trying to adjust to this strange new world. The evidence suggests that at his current age and stage of development the revelation has not disrupted his attachment to his mum and dad or led to any significant behavioural or developmental changes. That is perhaps not so surprising given what is important to him psychologically at this stage of development, which are more the physical and material realities of his daily life. He continues to live with his mum and dad; goes to school, lives in the same wider family environment and sees his uncle, aunt and cousins monthly. It seems from what he says that he would like to become his mum and dads blood child – to be completely theirs and they to be completely his. I think he understands adoption in this sense and in the short term that might have some meaning to him.

It hardly needs to be said that nothing I do will really affect any of those feelings although I hope that the outcome will be a positive one and will add to the foundations already laid so as to continue the development of a structure which will promote W’s welfare throughout his life.

The parties’ positions at the commencement of the hearing were as follows

I have sought in the body of this judgment to incorporate the main points advanced by each of the parties in their Position Statements, Skeleton Arguments, Evidence and Closing Submissions but inevitably this will be an incomplete recitation of all that I have heard and considered.

A Special Guardianship order was made in 2019. It will endure until W reaches 18 unless I make an adoption order or unless an application is made to discharge it. Mr and Mrs N can apply without leave, Mr L and Mrs L would require the leave of the court; s.14D Children Act 1989.

The PLWG Guidance on SGOs says

There are clear differences in the effect of SGO’s compared to adoption. The Table attached to the letter of instruction to Dr Duffy identifies the legal differences. An SGO maintains the legal link between the child and the birth parents – he remains their child legally and they remain his parents legally, likewise sibling status is preserved. Inheritance rights are thus unaffected and for W to inherit from the Applicants wills would be required. He would not inherit their estate automatically on intestacy. The SGO enables the SG to exercise parental responsibility to the exclusion of all others with PR. There are limited exceptions to the rights of the SG to exercise PR and these relate to removal from the jurisdiction for more than 3 months and change of name. For W the latter is not relevant as the birth parents identified his surname as on the birth certificate.

In relation to the adoption application, I must treat as my paramount consideration in accordance with s.1(2) of the 2002 Act, W’s welfare throughout his life.

Section 1(4) of the Adoption and Children Act 2002 provides:

“The court or adoption agency must have regard to the following matters (among others)-

(a)

the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding),

(b)

the child’s particular needs,

(c)

the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)

the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant,

(e)

any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,

(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.

Section 1(6) also requires the court to consider the whole range of powers available to it and the no order principle applies.

This case graphically illustrates the reasons why the state has enacted detailed statutory provisions in relation to adoption which are reflected in primary and secondary legislation and in much guidance. Significant state attention has also been given to alternatives to Adoption including Special Guardianship and surrogacy. Ensuring the welfare of the child concerned lies at the heart of all of this. Individuals making their own arrangements as these families did by-passes all of those safeguards. As it happens they have until now managed the situation relatively well through the strength of the personal relationships and their commitment to the agreement they reached but also because W has been sufficiently young not to have started to ask his own questions. It is ironic that the application issued by the Applicants intended to consolidate the strength of their family unit by legalising their de facto mum and dad status has had the effect of introducing a degree of instability to them and an element of unhappiness to W.

In the context of a private adoption application such as this, s.47(1)-(2) of the Adoption and Children Act provides that:

Section 52(1)(b) ACA provides:

“The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that-

(b)

the welfare of the child requires the consent to be dispensed with.”

In Re P (Placement Orders: Parental Consent) [2008] 2 FLR 625, the Court of Appeal held that the word “requires” has a connotation of the imperative i.e. what is demanded rather than what is merely optional or reasonable or desirable. What has to be shown is that the child’s welfare throughout her life requires adoption as opposed to something short of adoption. The child’s circumstances may require statutory intervention, perhaps may even require the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily require that the child be adopted. The question at the end of the day is whether what is required is adoption. In determining whether to dispense with the parents’ consent the parents’ reasons for withholding consent will also need to be taken into account. Where the reasons are adult centred, a reflection perhaps of a rejection of the courts conclusion that parents present a serious risk of harm and that rehabilitation of the children is not possible, the weight the reasons are given in the overall evaluation will be different to that where, as here, consent is withheld for a child-centric reason. A well-founded objection is not a trump card but a welfare based reason will obviously be of some weight in the exercise.

The proportionality of the decision is central to dispensing with consent. At paragraphs 54 – 60 of Re P (A Child) [2014] EWCA Civ 1147, Lord Justice McFarlane says this:

Before making an adoption order, s.46(6) ACA 2002 provides that:

“..the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.”

The judicial task is always to evaluate all the options and undertake a holistic evaluation of the child’s need in the context of the specific facts of the case before it.

I take account of the Article 6 and Article 8 rights of the children and the parents. I remind myself that, where there is a tension between the Art.8 rights of the parents on the one hand and the Art.8 rights of the child on the other, the rights of the child prevail: see Yusuf v. The Netherlands.

There is little if any research or case-law which assists with cases such as this where a child has been gifted. There are some examples of adoption applications in respect of older children (The Prospective Adopters (AA AND BB) v CC [2017] EWHC 3506 (Fam) and Re N (Adoption - Surrogacy) [2024] EWFC 41) which illustrate older children wishing to have their need to have their social and psychological parentage legally recognised into adulthood. W may have the same need although he is not yet able to articulate it and is unable to articulate any thoughts on competing considerations such as remaining legally bound to his brothers – a fact that would exist (in the usual course of life) long after his parents and his birth parents have passed on.

In Re N [2024] EWFC 41 in which Mrs Justice Theis considered whether to make an adoption order in respect of an 18-year-old, born as a result of a surrogacy arrangement, whose birth parents opposed the making of the order. Theis J notes that:

Shortly before Re N in Re Z (Surrogacy: Step-parent Adoption) [2024] EWFC 20 Theis J considered what orders to make where a surrogacy arrangement had gone wrong and a parental order had been set aside and where the surrogate fathers sought a step-parent adoption order which was opposed by the child’s birth mother. In that case Theis J was asked to consider many of the arguments which have arisen in this case including the contention that adoption would make the child feel more settled, that it would reflect his lived experience past and future and that some form of contact order would promote his identity needs in respect of his mother. On the facts of that case she concluded that adoption should not be granted because the child’s welfare did not require his mother’s consent to be dispensed with.

The Bundle on Caselines runs to about 450 pages. I do not intend to set out here a lengthy recitation of that evidence. Much of the evidence is not in dispute. There are relatively few issues of fact which need to be determined. This case revolves largely around the evaluation of agreed evidence. To the extent that evidence is in dispute it is largely expert or professional evidence which is disputed. For instance, the Applicants and The Local Authority submit that Dr Duffy and the Guardian have approached the case with the wrong threshold in mind and that they have failed to give due weight to certain factors. The birth parents and the Guardian submit for instance that the social worker has placed too much weight on the usual benefits of adoption and has failed to give due weight to the interference with the legal relationship between W and his brothers and that they have placed too much emphasis on the legal issues including special guardianship ending at 18 rather than the substantive relationships.

In this judgment I shall therefore seek to explore those areas which seem both most significant and most in contention rather than the full range of matters. The Annex A report of the social worker runs to some 76 pages and contains a huge mine of information about both families most of which is not in dispute.

Mr and Mrs N both filed statements and gave evidence with the assistance of a Punjabi interpreter. This appeared to enable them to give their evidence satisfactorily although it may be that some subtlety was lost although I also conclude that Mr N thinks and expresses himself in more black and white or concrete terms than engaging with the complexities and subtleties of the emotional consequences. Their commitment to W is unquestionable and will be lifelong; their love and pride is that of his parents. His evidence about ‘psychological parents’ was to acknowledge the concept without being able to articulate much which illustrated an understanding of it as a distinct form of parenthood. He did not think W would feel any sense of rejection from his birth family – the reason it seemed for his belief was that he had been their son from Day 1 which fails to grasp the importance of biological roots or the likely feelings he will develop as he enters adolescence, Mr N took the lead in the evidence. He said they would accept support rather than seeing that almost certainly they need support in understanding the consequences for a child of not being brought up in their birth family and in this case of the consequences for them all of the gifting. The impression he gave – as did Mrs N – was that this was very simple; W had lived with them since a baby, viewed them as his mum and dad and that adoption would make it permanent and that maintaining some contact and some knowledge of how he came to be with them was the start and the finish. I obviously summarise but within this there was really very little reflection of how complicated things might become for W and them as he grows up. He sought to answer the questions as best he could although was somewhat defensive but more significantly his evidence was very much focussed on actions or practicalities rather than on any emotional content. The impression he gave was that he either could not or chose not to engage with the complexities of the emotional consequences of the gifting rather than on day to day life. He could for instance see there was a benefit to W in seeing his birth family but was unable to explain why and what the consequences might be for W or he and Mrs N if there wasn’t such contact. The lack of emotional connection or insight into the complexities that this gives rise to contrasted strongly with the depth of consideration Mr L has clearly given and was able to articulate. Giving all allowance one can for the stress of giving evidence and the impact of interpretation it seems probable that for Mr and Mrs N they have been able to avoid facing the difficult questions which W will have (and which they themselves might have of themselves) because their lives are filled with living life as a family rather than living each day in the knowledge that a child is missing. To say that they don’t think he feels rejection by the birth family in relation to what he said to the Guardian and to say that they will explain and everything will be clear in front of him seems to me to significantly under-estimate what he may be feeling now but much more importantly to fail to see the potentially far more complicated questions likely coming down the line. To answer a question about how he might feel about being adopted by saying he might question why we didn’t adopt him is to avoid the subject. Much of what they say about the background and the trail which has led to this hearing is not controversial. Whilst it is clear that W was gifted to them to bring up as their own child it is less clear that it had always been the intention that he would be adopted. The issue of adoption is referred to in the special guardianship report of 2019 albeit in terms which do not suggest that it had always been the Applicants’ intention to adopt W. The substance of the discussions at that time suggest adoption was a recent suggestion and the fact that an SGO was only applied for in late 2018 points to the likelihood that the question of W’s legal status in the care of the Applicants had not really featured in the discussions about the gifting. That would be consistent with the lack of thought given to the medium to long-term implications for the families or for W of the gifting. In 2019 the Applicants said they would like to adopt him, but the birth family made clear that they would not consent and considered the issue should only be considered when W was of an age to give a view. The making of the adoption application itself in November 2022 seems in part to have arisen because of the tension that had developed over contact. In their initial statement they refer to wishing to apply for a passport so they can visit extended family in India and preferring the permanency and security of an adoption order as W’s official legal parents. It was not motivated by a need to reassure W or to settle matters from his perspective because at this stage he believed Mr and Mrs N were his parents and the totality of the evidence suggests that a significant part of the motivation arose from their adult insecurity. Mr N was able to agree that contact should be a priority and that W and the family might need to make sacrifices to their routines but this was rather superficial and had not been matched over Covid or more recently where W’s commitments in the South East have dictated the nature of contact in the Midlands which suggests that the Applicants do not really understand the medium to long term importance of developing and maintaining those relationships for W in terms of the value of the relationships but also so that when the almost inevitable questions come they are able to answer them in the knowledge that they have promoted the relationship to the fullest extent commensurate with getting on with the other part of their lives. I did not detect in their statements or their evidence an acceptance or recognition that the unique nature of how they became parents determines that they will never have a family life of the sort they may have contemplated or wish for and that whilst they can live that ‘ordinary’ life in the day to day activities and interactions they will always be living an ‘extraordinary’ life and that this will inevitably shape them. The observation that they had dealt with Mr L and Mrs L’s one concern about adoption illustrates their distance from impact of the gifting. Their observation that adoption would give ‘us the permanency, stability and security that other parents take for granted and they would not have to worry about our status and relationship’ also illustrates a sense that adoption is a panacea which it almost certainly is not. Mr N works 6 days a week and so is less involved in the day-to-day interactions with W, others and the birth family. It is Mrs N who has had to deal most directly so far with the consequences of the disclosure to W of his history. Mrs N I think found the process of giving evidence harder than Mr N and there were sections of her evidence where there was significant confusion or a lack of clarity about events. One illustration was over who had first told W about her not being his tummy mummy and [Aunty L] being it. At one stage she seemed to say he had been told by the Life Story worker and had been happy but on further enquiry it seemed she had told him, and he had been distressed. There was similar difficulty in establishing whether she had told the school of the revelation to W so that they could look out for any signs of its impact. She seemed eventually to say she had told W’s teacher it was best not to tell the other children but had told her. There could be a miscommunication in this regard but it seems less likely. She seemed to deny that there had been any event such as that described by Mr L of W getting his Life Story book and wanting to talk about it and Mrs N shutting it down and it seemed she denied calling Mrs L and asking her not to talk about W’s origins with him. In so far as they are in dispute I preferred the evidence of Mr L as it was clear and persuasive but also because it fits in with Mrs N not telling the school and the general impression I took from their evidence that they are searching for normality for their family unit which involves them ‘being’ W’s mum and dad and that when reality intrudes on this that they tend to push it away or suppress it.

Overall Mr and Mrs N are plainly and deeply committed to their son. They are bringing him up in a family environment which priorities him and meets his needs. They are clearly very good parents. The evidence illustrates a flaw in their ability or willingness (or a mix of the two) to embrace and incorporate the consequences of the unique way in which W became their son. Their tendency is to put their heads in the sand save where it is unavoidable and that I think derives from a wish that W was their biological son not a son gifted to them. To all intents and purposes, he is their son and will remain their son but the less they are able to acknowledge his real origins the more likely they are storing up trouble for the future. W’s origins clearly do not need to be part of the daily routine but when he does have questions they need to be answered sensitively, and frankly and from a position of self-confidence. If W detects anxiety and upset associated with such questions he will likely not ask them and internalise any feelings of worry or curiosity and down that road lies the risk to his attachment, feelings of rejection, uncertainty with the consequent risks to his emotional or psychological well-being. In the context of this case that is an important flaw and one which at present seems more likely to be preserved by an adoption order rather than addressed. I acknowledge that the security of adoption could make them less anxious but at present I am concerned they see it as a panacea which might lead to the maintenance of their current attitude so that questions are answered simply by ‘well you are our son we adopted you’. The reality is that adoption does not deal with all the more complex questions which likely lurk in the background.

Mr L gave evidence on his own behalf and that of Mrs L. He gave evidence without an interpreter and was articulate, measured and insightful. His recall for detail and his apparent connection with events suggested he was a reliable historian on factual disputes. His account of the occasion when W raised the subject and went off to get his Life Story book and was given an angry look by Mrs N and told not to discuss the Life Story book seemed a real memory as did the subsequent telephone call. The core of their evidence is that they gifted W out of love and that they always intended him to be raised by the Applicants as their son but with their involvement in his life. It was to be permanent and irrevocable. They maintain that the issue of adoption should not be dealt with until he is of an age where he is big enough to make his wishes known. They said ‘To be clear, if it was ever his express, informed wish for the Applicants to adopt him, then we would fully support this’. It is clear that for Mr L that whilst he adheres to the decision made in 2017 and that they say they do not regret that decision that is only part of the story. It was evident that Mr L carries with him a sadness for what they have given up which is mitigated to a degree by the satisfaction they get from having helped to make their sister and best friend a complete family but which endures, nonetheless. He was clear and I do not doubt for a moment that the decision which they took is one they will never seek to resile from however hard they have found it. Nor will they seek to exercise parental responsibility or to interfere in any way in how W is raised by the Applicants; save that if they felt a decision was seriously harmful to him they might seek to intervene but even on permanent relocation they would support this if it were part of the Applicants plan for life. Mrs L suffered quite serious depression after the gifting although the arrival of their 4^th son and the happiness of their family of 5 has enabled them to chart a way forward. It is clear that none of the 4 adults had really any notion of what the impact of the decision would be. Although Mr L described children gifted within their community, the reality of those examples was that the child’s parent had been incapable of caring for them and so they were far removed from the gifting of W. That sense of sadness and indeed of guilt underpins their position that they will now take no further step which might add to the sense of rejection that they think W might have arising from the gifting and the fact that his birth mum and dad chose not to raise him themselves along with their other children. It is clear that the enormity of this decision was not evident to them at the time and their awareness of the consequences for W has developed over time. The evidence of Mr L suggests no real thought was given to the legal aspects of the gifting but by 2018/19 it was clear that he and Mrs L had concluded that W should have some say in the decisions about his adoption. It is clear that the perspective that Mr L and Mrs L have informs their thinking and perspective on events as that of the Applicants does. Their daily experience of W not being a part of their family has clearly led to them thinking very deeply about the issues which will arise for W and that would seem to have equipped Mr L well to be able to answer even very challenging or hostile questions that W might ask in a way that the Applicants are very far from in terms of their ability to answer them in a helpful way or their willingness to engage with them rather than cut off discussion. I did not sense that Mr L and Mrs L actively want to discuss the issue with W outside the context of Life Story work but rather that they were prepared for questions (including difficult ones) when W wanted to ask them. Their experience in explaining the situation to their own children must also have contributed to their ability to articulate now how they would deal with it. He thought when W was about his eldest’s current age he would be able to cope with the discussion over the reality of his situation and to address some of the consequences. However, that regret also leads them to interpret any issues over contact from the perspective that the Applicants now see them as a hindrance to getting on with their daily lives and that contact is a tick box exercise. Whilst they are right to some degree in that perception there have also been some real practical issues. They also tend to overlook the fact that it was their decision to move to the Midlands (for good reasons for their family) but in consequence contact involves a 5 hour round trip rather than a 1 hour trip. For Mr N, if he has worked 6 days, a 5 hour round trip to the Midlands on his day off is probably not attractive and if his back is causing problems (as Mr L acknowledged it sometimes did) there are bound to be some occasions when contact simply will not be practicable or when the Applicants prefer to prioritise another event. His account of a call with Mr N when they discussed the fact contact was not happening in accordance with the expectations of the SGO and whether it would need to go to court also rang true but as it happens was not actioned by Mr L although it seems to have played a role in the Applicants issuing their adoption application. That sense of regret is also a contributor to an adult need for contact with W, a need to maintain knowledge of him and closeness to him both physically and emotionally which will not necessarily always be needed from W’s perspective. Knowing he is loved by Mr L and Mrs L, feeling close to them and thus not abandoned will no doubt promote his sense of well-being and support his ability to process the fact of his being gifted by them to the Applicants. Striking the right balance will be difficult and my sense of the position of Mr L and Mrs L is that they might over-estimate W’s needs, eliding it with their own, whilst the Applicants would tend to under-estimate his needs, they perceiving themselves as fulfilling them all and W only needing the love of an aunt and uncle and the engagement with cousins rather than something closer to minimise his sense of exclusion or abandonment.

Mr L and Mrs L’s management of the situation so far has been impeccable and has undoubtedly played its part in how happy and secure W is with the Applicants. The fact they have come to terms with the loss and addressed their guilt and regret has put them in a good place to help W deal with the questions which arise. Going through the process of answering questions with their own elder sons must have added to this capacity although the nature of the questions they have faced from their children will be materially different in quality and depth to questions W might have but in so far as they could be prepared without professional support they are there. They would continue to treat W as the son of Mr and Mrs N and would not seek to undermine that. They would deal with questions in an open and supportive way. Insofar as one can gauge the position their sons have also been brought on board although there may be changes in their attitude as they move from 13 into mid-teens and their early adulthood. They have much to offer and their ability to support W should be utilised.

Dr Duffy, is a clinical psychologist who was instructed as a Part 25 Expert as I considered it necessary to have expert evidence on W’s psychological presentation, his attachment and the likely impact on him psychologically of making an adoption order or maintaining a special guardianship order and issues relating to contact. The Letter of Instruction contained 15 questions. She gained her doctorate in 2007 and has worked in the NHS specialising in Child and Adolescent Mental Health and developmental trauma in Looked After and Adopted Children. She currently works in the private sector. She filed a report on 30^th May 2024 which runs to some 55 pages [E127] and subsequently answered supplementary questions [183]. She gave oral evidence over the course of about 3.5 hours on the first day of the hearing. Her report and her evidence demonstrate that she undertook her task with conspicuous attention to detail and thoroughness including the extent to which she met with or spoke to those with knowledge of the family. One of her meetings with the Applicants was hampered by the interpreter being of the wrong Punjabi dialect but apart from that hitch her enquiries were as complete as one could hope. She acknowledged that the situation of a child being gifted from one family member to another was not something she had dealt with in her clinical work and that she could not draw on any research which dealt with the situation and so she gave her opinion based on her understanding of child development and psychology and on her accumulated experience. Ms Gray criticised her for approaching the evaluation from the standpoint of the legal test being adoption could only be approved ‘if nothing else will do’ and submitted that her conclusion on the risk of psychological harm to W arising from adoption failed to properly evaluate the strengths of his attachments and the mitigations which would be in place to minimise any adverse impact. One has to take the report and her oral evidence in its entirety rather than isolating individual paragraphs which might on a detailed textual analysis open a window for criticism. Overall I thought that in her written evidence and in her answers, Dr Duffy was thorough, considered, balanced and that in matters which related to child psychology demonstrated her expertise in that field. Inevitably in a report of this sort and particularly having regard to the 15 questions asked her evidence included more than pure child psychology but to the extent that she went beyond pure psychology this was part of her remit and she did not trespass into areas in which she might not have had relevant expertise. Her evidence included the following:

The Social Worker completed the Annex A report [E1-76] and filed a statement. She is clearly a very experienced social worker in the area of adoption and fostering and like the others she acknowledged her work was almost always with children who could not live with their birth family for some reason. This underpinned her approach to why permanency was needed for them and what best met that need. Although she acknowledged the unique factor in this being that W was gifted from a family perfectly able to care for him her evidence was essentially founded on an approach which derived from children removed from their parents and I thought she had wrestled with the potential complexities that the gifting variant presented. Of course, when she prepared her main report which took place over many months her understanding had been that the birth family consented subject to satisfactory arrangements for contact being in place. Her core reasoning is expressed as follows:

In her evidence she acknowledged that the draft Life Story book had wrongly suggested that W had been adopted and that it had to be amended. As the Annex A social worker I was unsure why she did not have responsibility for the liaison with the life story work but I accept she did not. There was therefore an unfortunate breakdown in communication which led to W getting a premature message about his adoption and that has led to more confusion than the revelation of his birth alone might have produced. She thought that confirming his adoption would add to his security rather than emphasising his abandonment and that Life Story work would help redress that possibility by explaining his gifting was an act of love not abandonment. Over the years he will process it in different ways and at present it does not appear to have had a significant impact on him because his stability comes from his daily life. She emphasised that openness and honesty in answering his questions was critical to helping him process the gifting and that the issues were likely to emerge more as an adolescent. She considered that his feelings of rejection would arise because of his gifting and were unlinked to the nature of the order. She thought Dr Duffy had under-estimated the value added by adoption and the sense of belonging it would bring. That security is certainly a usual and established advantage of adoption but I thought the social worker relied heavily on the usual benefits which accrue but she had not gone through the process of seeking to test whether this usual assumption applied as fully to this unique situation. She was concerned about W being left at 18 without legal ties to the Applicants and foresaw both emotional and practical disadvantages of this both of which are potentially true but can be addressed by W having the opportunity to express his views in his adolescence. Thus I thought her analysis did not have the nuance that emerged from the Guardian’s or Dr Duffy’s. She considered the Life Story work to be a very important component in making adoption a success which makes it more surprising that the situation developed as it did. She also thought he would be caught in the middle and exposed to tension if the adoption was not made because it would lessen the Applicants anxiety and would bring a finality which the birth family could adjust to whereas an SGO would leave open the issue of a future return to the issue of adoption. That is certainly a possibility although since the SGO was made the tension has not been around issues of the adoption/parenting but around maintaining the contact relationship. She considered that seeking his views would cause problems for him as it would cause conflicted loyalties. In a sense this must be true although it does not take into account that the birth family are neutral as to outcome and would not be advocating a position but rather supporting him in saying what he really wanted.

The Life Story worker did not give evidence but had filed a statement. In it she said the following about how W had the news broken to him about his family.

The Guardian had filed three reports. She had commenced as a court reporter to obtain the consent of the birth parents but when it appeared they did not consent she became W’s Guardian. She has extensive experience in social services of Kinship care and adoption and as a guardian in adoption breakdown situations. She has experience of one other ‘gifting’ case. She gave evidence in a reflective and considered way and seemed to have been better able to adapt her thinking to the highly unusual circumstances of W’s situation which made clear that she was not applying generalised principles applicable to adoption and special guardianship but a nuanced and fact specific analysis. In particular she had been able to capture the life-long aspects of W’s welfare in a way which added extra weight to her analysis. Significant aspects of her evidence include the following:

The opening positions are set out in their Position Statements filed for the commencement of the hearing and the overall positions did not alter much although the basis for the positions did develop.

In support of the contention that an adoption and contact order would best promote W’s welfare on behalf of the Applicants Ms Gray made the following essential points.

On behalf of Mr L and Mrs L and in support of their contention that W’s welfare was best promoted by the continuation of the SGO and a contact order Ms Geddes made the following essential points.

The Local Authority maintain the position they took arising from the Report completed by the social worker. Ms Conroy Harris emphasised the following

On behalf of the Guardian’s position that the SGO should endure in conjunction with a defined spending time with order, Ms Darian made the following points

The nature of the background to this application is unusual if not unique. Importing any generalities is inapt. This decision must be made on the very specific facts of this case by which I mean not the gifting alone but looking at the penumbra of facts about W, the Applicants, the birth family, facts which surround the gifting and which stretch into the past, which feature in the present and which one can foresee in the future. The personalities of the adults which are fully formed and unlikely to shift much given their ages and that of W which will undoubtedly develop and change significantly as he moves from childhood into adolescence and in due course adulthood.

I am conscious that the novelty of the case poses a challenge to all involved – mostly those living the daily reality but also for the professionals and myself. Inevitably in a case as unusual as this the court brings its own accumulated experience to bear in seeking to discern how the fundamental – or basic – principles of the welfare of children can be best served. I have little doubt that different judges would see aspects of a case such as this differently but as we all must be guided by the framework that is provided and which guides and shapes our decision making that must be my starting point.

Whilst this is not unique it is certainly a sufficiently rare situation that no one apart from the Guardian has any direct experience of a gifting case. The child welfare learning derived from state pursued adoptions arising from care proceedings through to step-parent adoptions is of some but only limited help as is the knowledge base arising from failed surrogacy. Special Guardianship is sufficiently new on the landscape that there is limited learning to be gleaned from that on whether it has worked better than adoption. All the professionals involved are feeling their way forward in the case as to some degree as are the two sets of parents; Mr L and Mrs L particularly. For Mr and Mrs N, they like W, have lived the life of a nuclear family and it seems through that lived experience they have been able to push to the sides the consequences of the choice they made in terms of how it would be addressed in the future. Their application was not made because W knew his position and they wanted to give him a permanency he was missing.

Looking at the factors included within the s.1(4) welfare checklist the following must be factored into the ultimate paramount welfare conclusion, the decision on the necessity of dispensing with parental consent and the proportionality of the interference with the article 8 rights of all the relevant family members.

It appears from what W has read in the Life Story book and from what he has said that he has some conception of adoption and that he may see it as remedying the unwelcome news that he was not in fact the biological son of those he regards as his mum and dad. He may also think that he has already been adopted although it is not clear to me whether he thinks that the fact that he lives with people who are not his tummy mummy and dad already makes him adopted. Given he is only now rising 7 and when he was spoken to by adults about his position he was somewhere between 6 and 7 his understanding of adoption as a legal concept is likely to be very limited indeed and as a form of family is likely to be a fairly simplistic one. I think it is fair to conclude that W at present wishes his family unit to be as close to a typical bio-social one as can be achieved and that currently he regards ‘adoption’ as achieving that ideal standard. Looking at the decision in the short term he wants to be adopted. Although it is difficult to extrapolate much directly from the learning in relation to children who have been the subject of state led adoption whether as a baby or as an older child who has some experience and memory of life with the birth family I think Dr Duffy is right to identify and to lay weight upon the likelihood of W’s views developing as he grows older particularly in adolescence and young adulthood when his thinking about who he is will likely be at its most turbulent or active. Any attempt to look into the future can always be said to be speculative but one must draw on such expertise as exists in relation to child development and on such experience and common sense as can fairly be brought to bear in a novel situation. The rarity of his situation may very well make his questions about himself and of Mr and Mrs N and his birth parents more pointed, challenging or critical than might often be the case with a child brought up outside his birth family whether in an adoptive family or not. It is possible, although I think less likely, that his experience of life with life story work may not generate any difficult questions for him or for others and that he will make the transition to adolescence and adulthood with no more troubling issues than the average teenager (if there is such a thing). I think it is more likely that he will have questions related to why he was gifted by his biological parents and why that gift was accepted by Mr and Mrs N. Those questions might be posed in a relatively benign way out of curiosity but there is a real possibility that they will be asked in a very challenging and hostile manner. The way in which Mr and Mrs N and the birth family have been able to deal with such curiosity as W shows in the intervening years will almost certainly in the view of the professionals influence the way in which it emerges in adolescence. At present as I set out below, the approach of Mr and Mrs N is such that he is less likely to be able to discuss this openly and productively with them and so the risk of him internalising his feelings and them emerging in a more negative or harmful way is magnified. The range of his wishes and feelings in the future may therefore be wide indeed. At one end of the spectrum he may feel entirely satisfied with his life with Mr and Mrs N and may wish to be their adopted child. If that is so then adoption now would have been to deliver what he might subsequently wish for. There is of course an interplay between the order that is made now and how W and the adults deal with questions in the future. My assessment is that adoption now would likely reinforce the tendency of Mr and Mrs N’s to view themselves as a nuclear bio-social family and thus reduce their openness to exploring the implications of adoption. At the other end of the spectrum might be intense hostility and anger towards Mr and Mrs N for taking him from his birth family and his brothers and a strong desire not to be their adopted child but to return to his biological roots. Another possibility would be ‘A plague on both your houses’. What seems to me to be an important component in the overall welfare evaluation is to recognise this range of potential future views and to identify that W has a right to have a say. Although that right exists now it is an attenuated right given his age and his lack of understanding. Adoption because of its irrevocable nature will prevent his right to express a view being convertible into a legal reality although of course he will be able to choose with whom he lives or socialises regardless of the legal outcome. A special guardianship order provides legal security in the meantime but leaves open the possibility of W being able to actively contribute to the legal outcome when he is able to express a more informed view. As a decision with lifelong consequences which is fundamentally different to a child arrangements order and where the adult decision-making in 2017 was taken essentially in disregard of the welfare consequences for W it seems to me that his right to be consulted requires recognition.

W’s needs are in many respects those of any six year old. In many ways his emotional needs match those of any 6 year who is not to live with his birth parents but with another family member. The gifting adds a different dimension to his emotional needs though. This is not a child who cannot live with his birth parents because they have died, are physically or mentally incapacitated, are imprisoned, are in the grip of addiction or who are for other reasons unable or unwilling to look after him. There is no straightforward explanation which can be proffered to him as it can to most children. The evidence, in particular that of Dr Duffy but also from others, together with common sense, suggests that he has a particular emotional need for attuned carers who will be able to deal in the most sensitive and supportive way to the fact that his birth parents were perfectly capable of caring for him but they chose to give him away as an act of compassion to fulfil a need that Mr and Mrs N had to create a family outside the parameters of biology or of the systems the state has created to facilitate the establishment of non-biological families. His psychological well-being as he grows into adolescence and into young adulthood and perhaps beyond will be shaped by how well this need is fulfilled.

One can identify a range of possible outcomes for W some of which I have identified in terms of the questions he may have in the future. It is much more likely that he will experience a feeling of rejection or abandonment by his birth family than not. Quite how this will emerge is harder to define. It is easier to explain to a teenager and probably more understandable to the teenager that their parents were unable to look after them because of their own problems and that they were not abandoned because they were not wanted. Although the birth family and Mr and Mrs N may find it easy to rationalise their decision it may be seen very differently by W. The extent of the heartache which was detectable in Mr L’s evidence gives a hint of the possible impact on W. Whilst this will be a fact whether W lives with Mr and Mrs N under an SGO or an adoption order I have no difficulty in accepting the evidence of the birth family and the opinion of Dr Duffy that there is a risk that the termination of the legal links between W and his birth parents and his siblings may add a further and significant layer of harm. Of course the termination of the legal relationship will have the usual consequences in ending the birth parents’ parental responsibility, the legal relationship of parent/son and of brothers and of creating new legal relationships between the Applicants and W. Whilst in the short term it may be the case that the likely effect on W of adoption as compared to special guardianship is limited, and perhaps more positive in cementing his feeling of belonging with the Applicants the medium to long term effects are harder to predict but are undoubtedly significant and possibly profound. Practical matters such as inheritance or next of kin status can be addressed with wills and Powers of Attorney. Defining the effect of ceasing to be the brother of his three siblings in W’s 20’s or 60’s is much more nebulous but could be profound. Likewise, the impact of being the child of Mr and Mrs N when he is 40 compared to being the legal child of his birth parents. I accept that some, perhaps all, of the accepted benefits of the permanence that adoption provides might accrue to W although I do not think that those benefits are as readily inferable in this case as in others. Or at least if they are they are more nuanced or have potential detriments which would not be present in many other situations. The difficulty in defining the effects at this point in time suggests that a decision with irrevocable consequences may not be the best for W.

It was said that gifting a child was not unknown within the community from which the birth parents and Mr and Mrs N come. It was also said that adoption is less well recognised and perhaps carries more stigma. When it came to examples of gifting however neither Mr L nor Mr N gave the example which was akin to the gifting of W but which was more characteristic of children being placed with relatives because of the unavailability a birth parent. I do not think that the reluctance of Mr and Mrs N to be more open about W status with the school is necessarily a cultural issue as opposed to a reflection of a desire that Mr and Mrs N have to normalise their position vis a vis the outside world. His background being gifted though is unique and relevant in ways discussed elsewhere.

W appears to be prospering in the care of Mr and Mrs N. Any harm done by the revelation of who his birth parents are and the fact that his mum and dad are not his biological parents appears to have been short lived; at least that is the outward impression. Inevitably, W carries with him a latent risk of harm arising from his gifting. Clearly he is at risk of suffering future harm as he emerges into adolescence and adulthood and questions as to his identity, origins, his self-worth etc begin to arise. At its lowest level the harm may be modest, his life experience may moderate his desire to ask or answer those questions. However the stark facts of his origins also carry with it the risk of profound emotional instability with potentially lifelong consequences for his mental health, trust in others, personality formation and psychological well-being. This risk is materially different it seems to me to that which exists with a child removed from his parents by the state due to the harm they have caused or are likely to cause or to the termination of a relationship involved in a step parent adoption.

A key component in Dr Duffy’s thinking is that an adoption order carries with it a message of abandonment. Added to the inherent difficulties that will arise for W from his being gifted and the very challenging emotions that may generate for him, the maintenance of the legal tie is a form of commitment to him by his birth family which ameliorates the sense of abandonment. That sounds fairly abstract but it seems to me that it potentially has substance. This case is most unusual in the ranks of children living away from their birth family. In most cases there is a clear explanation which can be given which has child centred welfare at its heart. Even in such cases the impact on the child emotionally may be very significant. In a case such as this where W cannot be given any reason which explains a benefit to him of his being placed with the Applicants it seems to be that the risks to him of psychological fallout may very well be compounded. A child can at least grasp something about their parents being unwell or in prison as a reason or that in a step-parent adoption the other birth parent has played no role in their life and so there is a clear benefit to them in adoption. But for W there is no such reason. This is purely about satisfying the Applicants’ desire for a family (but not an external adoption) and the L’s wish to help them. W’s needs are nowhere to be seen in this decision making and so things which might reduce the impact of that are significant. He may adjust to this fact without problems. But he may struggle and experience suggests that accepting that reality will present challenges. His brothers are similarly blameless in the story and so the maintenance of a legal link to them, the birth family’s wish to ensure he remains a part of them legally which may be symbolic to a degree has the potential to be of considerable significance to W it seems to me. When he and his brothers are long past 18 perhaps all will be reconciled to the decision their parents made but that is far from guaranteed and it may be that the legal relationship of remaining brothers could be very important to W and to his brothers.

The loss in terms of PR for Mr & Ms L is limited. However the status issue for W and the birth family is a much more significant component, Status can be hard to define in terms of weight but is significant. The loss of relationship with his brothers is modest at the present time but there are short, medium and long term elements which need to be considered.