BC & Anor v IA & Ors

On 12th February 2014, I gave the First Respondent, IA (hereafter “the Father”) permission to oppose the making of an adoption order pursuant to section 47(5) of the Adoption and Children Act 2002. I am now dealing with the hearing of the application for an adoption order, made by BC and CC (hereafter “the Applicants”).

The application for an adoption order relates to N, who was born in 2008. She is therefore five years of age. A relevant feature of this case is that she has serious disabilities which require that she receive a high and committed level of care.

The history of this case is set out in my original judgment which I incorporate into this judgment. It is a sad and potentially relevant fact that there has been virtually continuous litigation since the Second Respondent, the London Borough of Croydon (“the Local Authority”) issued care proceedings in January 2009. On any view, the litigation needs to be brought to a final conclusion.

N was born prematurely at 27 weeks gestation. She spent the first seven months of her life in hospital due to her severe disabilities. Amongst other significant problems, she was suffering from glottic stenosis, which required a tracheotomy. Fortunately, the tracheotomy has subsequently been removed although she still has a stoma. It is hoped that it may be possible to close this later in the year.

Whilst she has made excellent progress in many respects, she remains a child with serious disabilities. I have a report from Dr OI, a community consultant paediatrician dated 14th March 2014. She tells me that N’s disabilities include cerebral palsy (spastic diplegia), autism, global developmental delay and speech and language delay.

N’s Mother, CW has had serious mental health problems as well as difficulties with alcohol and drugs. She has played no role in N’s life since February 2009 and her whereabouts are unknown. It has been impossible to find her to serve her with these proceedings. Her four older children are all living with paternal relatives pursuant to special guardianship orders. N’s Father is not the father of any of these children.

N’s Father lives with his mother, IT (“the Paternal Grandmother”). Although I did not join her to this application as there was no conflict between her and the Father, she has been present in court throughout the hearing.

N has never lived with either of her parents. She has had regular supervised contact to her Father and Paternal Grandmother. This has taken place once per month for four hours per session since a placement order was made on 17^th February 2012 by HHJ Atkins.

N was discharged from hospital in May 2009. She was placed with the Applicants. She has therefore resided with them for almost exactly five years. It is the only home she has known. She is a delightful child. She is very loving and affectionate. She is extremely well attached to the Applicants and clearly views them for all purposes as her parents, even though she describes the Father as her “other Daddy” when in the Applicants’ home. The Applicants are devoted to her and have given her an extraordinarily good level of care. They are extremely committed to her and her welfare. She also has a very strong bond with their fifteen year old son. It is clear that it is mutual. She is described as having “high energy.” Her behaviour can be challenging at times. She finds change very difficult. She needs consistent vigilant care and firm boundaries. There can be no dispute that she gets this and more from the Applicants. They are very strong advocates for her.

I have absolutely no doubt that the Father and Paternal Grandmother are also devoted to her and love her very much. I make no criticism of them in this regard at all. It is, though, a fact that they have been ruled out as potential carers for N. Whilst I will return to the issue in due course, there is agreement from everybody that, whatever order I make, N should continue to have contact with the Father and Paternal Grandmother as this is in her best interests in the long term. The Applicants are completely signed up to this. Indeed, the most recent contact on 8th April 2014 took place in the community at Kidspace, a children’s indoor play area, at the instigation of the Applicants. They were both present. Afterwards, everyone went to McDonalds. The Applicants recognise the importance for N of her paternal Nigerian heritage. Indeed, they go further. They have also instituted contact for N with her four half-siblings, recognising the importance of this to N and the Jamaican heritage she has through her Mother.

The Applicants seek an adoption order in relation to N. They want her to become a full member of their family for the rest of her life. They see this as particularly important in view of her disabilities and the likelihood that she will be dependent on them long after she has attained her majority. They want to be able to change her name to theirs and for her to become legally their daughter. They make it clear, however, that they are fully committed to her whatever the outcome of this application. They say they recognise the importance of contact and will commit to this, in writing if necessary. They envisage contact four times per annum as long as it meet’s N’s best interests. They oppose, however, a formal contact order on the basis that it is unnecessary and inappropriate.

They are strongly supported in relation to their application for an adoption order and their approach to the issue of a contact order by the Local Authority and the Guardian, Denise Hart.

The Father and Paternal Grandmother vigorously oppose the adoption application. They say that it is inappropriate both on the law and the facts. They urge me to make a special guardianship order in favour of the Applicants. Whatever I decide, they also urge me to make a contact order. I am asked to do so on the basis that the minimum level of contact remains as it is now, namely once per month for four hours. It is clear, however, from the Father’s statement that he seeks in due course to increase this significantly. He says that, in the future, he would like N to have unsupervised contact at his home. It seems tolerably clear that he would like this to start as soon as he has moved from his current one room property which he shares with his mother to a three bedroom property that he suggests is close to fruition. He adds that he would like this to progress to staying contact one weekend per month and that, in the future, he would love to be able to take N to Nigeria so she can meet her extended family, including her great grandmother.

The application for an adoption order is made pursuant to the Adoption and Children Act 2002. Section 1(2) of the Act provides that, when a court is coming to a decision relating to the adoption of a child, the child’s “welfare throughout her life” is the paramount consideration. When determining what is in the welfare of the child, the court must have regard to the checklist set out in section 1(4). Section 1(6) provides that the court must always consider the whole range of powers available to it (whether under the 2002 Act or the Children Act 1989) but must not make any order under the 2002 Act unless it considers that making the order would be better for the child than not doing so.

The conditions for making an adoption order are set out in section 47 of the 2002 Act. I have given the Father leave to oppose the making of an adoption order. This means that I can only make the order if I dispense with parental consent. So far as the Father is concerned, pursuant to section 52(1), I can only do if I am satisfied that N’s welfare requires his consent is dispensed with. This is to be done afresh and in the light of the current circumstances (see McFarlane LJ in Re B-S [2013] EWCA Civ 813 at Paragraph [13]).

In relation to dispensing with consent, Wall LJ said in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at Paragraph 126:-

“Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child’s welfare “requires” adoption as opposed to something short of adoption. A 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. They may or they may not. The question, at the end of the day, is whether what is “required” is adoption.”

The case goes on to set out that “required” in this context means the connotation of the imperative. It is what is demanded rather than what is merely optional or reasonable or desirable. It is a stringent and demanding test. The court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of children unless there are cogent reasons to the contrary (Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760.

Adopting a child is a draconian order. It is an extreme order, only to be made as a last resort when there is no other order compatible with the child’s long term welfare (Re B [2013] UKSC 33). In short, nothing else will do (per Lady Hale at paragraph [198]). I entirely accept that this is because the interests of the child self-evidently require her relationship with her natural parents to be maintained unless no other course is possible in the child’s interest (Lord Neuberger at Paragraphs [76] to [77]). Cutting off all contact and the relationship between the child and her family is only justified by the overriding necessity of the interests of the child (Lady Hale at Paragraph [198]).

The Court of Appeal has recently considered the application of Re B in Re B-S (Children) [2013] EWCA Civ 965 and re-emphasised the stringency of the welfare test when considering whether to dispense with parental consent. The President, Sir James Munby, said that there is a necessity for a “holistic” and rigorous evaluation of all placement options before coming to a decision. I remind myself that Article 8 of the ECHR is engaged.

The President stated that the Court of Appeal had real concerns about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption both in the materials put before the court by both local authorities and guardians and in too many judgments. He said it was time to “call a halt”. The evidence placed before the court must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option and, in particular, the nature and extent of the risk of harm involved in each of the options (Paragraph [34]). The need for analysis of the pros and cons and a full reasoned recommendation was essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met (Paragraph [36]). There must be adequately reasoned judgments (Paragraph [43]). The court rejected a linear approach whereby each option other than the most draconian is considered and rejected in isolation. Instead, a balancing exercise is required in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives. Each option should then be compared, side by side, against the competing option or options (Paragraphs [49] – [50]).

It is not sufficient merely to pay lip service to adoption being the most draconian order without engaging with the detail of the option as to do so would be nothing more than “formulaic window dressing.”

It is also right to remember that an adopted child is treated in law as if she had been born as a child of the adopters (section 67 of the 2002 Act). The parental responsibility of the birth parents is extinguished (section 46). An adoption order is irrevocable except in exceptional circumstances. Post-adoption, the Father would have to seek the leave of the court to apply for a contact order to N. He would not have the right to make such an application (section 51A).

Mr Macdonald for the Father made much in his submissions that the effect of the adoption would be to extinguish the Father’s “family life” with N and that this would have the likely effect of depriving him of the ability to make an application to the immigration authorities to remain in the United Kingdom on Human Rights grounds.

I cannot accept this submission. Both the Father and the Paternal Grandmother had the benefit of counsel’s written opinions on this very matter which were disclosed into the original proceedings in the Croydon County Court prior to the placement order being made. Mr Hugh Southey advised the father that the crucial issue was whether the court found that it was in N’s interests to have contact with her birth father. If the court so found, Mr Southey advised that the Father would then have reasonably strong arguments that his removal would be unlawful as contrary to Article 8. It is, of course, agreed by all that such contact is in N’s interests regardless of the order that I make. I agree. It is in N’s interests to continue to have contact with her Father. I make it clear that my view can be relied on by the Father in connection with any such application for permission to remain here.

The Paternal Grandmother had very similar advice from Ms Nativa Atreya. Indeed, she has since been given leave to remain in this country for two years, albeit it that I understand this was achieved without reference to N.

Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child. The court must consider any existing or proposed arrangements and obtain the views of the parties to the proceedings (section 46(6) of the 2002 Act).

There is a new section 51A of the 2002 Act which has been inserted by section 9 of the Children and Families Act 2014. It provides that a court making an order for adoption may make an order requiring the person in whose favour the adoption is made to allow the child to visit or stay with a person named in the order or for the named person and the child to have contact with each other. Under the new provisions, parents must seek the leave of the court to apply for such post-adoption contact. Article 3 of the Transitional Provisions Order provides that this section does not apply to applications for a contact order commenced but not disposed of prior to the commencement date. Nevertheless, I accept that the section is relevant because it would apply to any future application made by the Father.

I propose to proceed on the basis that Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 62 at Paragraph 154 remains good law in so far as Wall LJ said that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.

The Father argues that I should make a special guardianship order pursuant to section 14A of the 1989 Act. I should also note that, pursuant to section 14B, I can additionally direct that N is to be known by a new surname if I make a special guardianship order. I further accept that pursuant to section 14C, the effect of a special guardianship order is to give the special guardian parental responsibility for the child concerned and, subject to any other order that may be in force, that person is entitled to exercise such parental responsibility to the exclusion of any other person with parental responsibility for the child. The basic legal links between the child and her birth family are preserved.

There are, however, two very important caveats. First, a special guardianship order can always be varied or revoked. An application can be made for such variation or revocation by a parent of the child concerned (section 14D) although the parent requires leave to do so and the threshold for obtaining a variation or revocation is clearly higher than for a section 8 order. Second, however, the order only lasts until the child’s 18^th birthday. The child does not therefore become a permanent and full-member of the special guardian’s family for the rest of her life.

The main features of special guardianship were set out in S (A Child) [2007] EWCA Civ 54, [2007] 1 FLR 819. The carer is given clear responsibility for all aspects of caring for the child and for making decisions to do with their upbringing, whilst retaining the legal link between the child and their birth family. Paragraph [11] quotes from the White Paper entitled “Adoption: A New Approach”. It says that children who cannot be adopted for whatever reason require an order (special guardianship) that “provide(s) a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person.” I can only interpret this to apply in a non-legal sense because special guardianship certainly does not create such a lifelong permanent legal relationship. Indeed, it seems clear to me that on N’s 18^th birthday she would retain no legal connection with the Applicants were such an order to be made. I take the view that this is important, particularly given the fact that she is likely to remain dependent on them at that point.

Paragraph [47] of S states that the key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be which order will better serve the welfare of this particular child. It seems clear to me, however, that this must be subject to the law as set out in Re B that an adoption order is to be made only where nothing else will do. In this regard, it is a material feature of the special guardianship regime that it involves a less fundamental interference with existing legal relationships. I further accept that I have power to impose a special guardianship order on an unwilling party to the proceedings if I am satisfied that, applying the welfare checklist in the 1989 Act, a special guardianship order will best serve the welfare interests of the child concerned.

As it is clear that the choice in this case is, in reality, confined to adoption or special guardianship, I do not need to consider the other possible orders that a court can make in relation to N (such as long term fostering).

Written evidence was provided by the Applicants, the Local Authority (via the Social Worker, Holly Mann), by the community consultant paediatrician, Dr OI, by the Father and by the Cafcass Guardian, Denise Hart. I heard oral evidence from Holly Mann and Denise Hart. I have already outlined the written evidence of Dr Ojo and do not need to repeat it now.

The Applicants statement is dated 25th March 2014. It says that N is part of their family in their hearts and souls as if she was their own daughter. She looks to them as her parents and to their fifteen year old son as her brother. They want the adoption order as they want N to have an established identity in their family for the rest of her life, free from doubt and worry. They also want to change her surname to their name.

They are clear that they are prepared to commit to contact four times per annum for at least two hours as long as it meets N’s best interests. They are happy to supervise it and will make their commitment in writing to the Home Office if called upon to do so.

Holly Mann, the Social Worker, provided two statements. She was the social worker for N until 4^th April when she left the Local Authority’s employment. Her evidence strongly supported the making of an adoption order. She confirmed that N still requires constant consistent and vigilant care. This will almost certainly need to continue beyond her childhood. She needs to have the security of understanding that the prospective adopters are her forever family. Any move would be catastrophic. A special guardianship order would not provide her with the permanence she deserves and, in particular, a sense of belonging. She says that she understands that an adoption order is one of last resort but she considers it is essential in this case. She confirms her clear view that the Applicants will retain and nurture Ni’s relationship with her birth family. It should be made clear that her second statement sets out in detail the advantages and disadvantages of all possible orders before coming down firmly in favour of adoption as the necessary order.

The Father filed two statements. He says that if N is adopted, he will have no legal right or relationship with her whatsoever. He sets out his contact and says that he does not see why it should be reduced from monthly to four times per annum, making the point that N does not need to settle as she has been with the Applicants for five years. He adds that the Applicants gave evidence before Judge Atkins that this was not sufficient in their view. He says that N’s health has greatly improved and that she calls him “Daddy” and the Paternal Grandmother “Granny”. He acknowledges that the Applicants have looked after N well and have bonded with her. The point is made on his behalf that he has always been courteous and respectful in his dealings with the Applicants. This does indeed go to his credit. I have no doubt that it has been very important in the Applicants’ decision to promote contact with him even after adoption.

Finally, the Cafcass Officer, Denise Hart, reported on 21^st April 2014. She reminded the court that N has been subject to years of litigation. The first seven months of her life were spent in hospital with no primary carer. She has been living with the Applicants ever since. She has formed secure attachments to them and feels loved, secure and safe. Her care needs to be higher than average. The Applicants provide vigilant, detailed and exceptional care. Any removal from them could be catastrophic. She spoke to the Applicants’ fifteen year old son. He said that he regards N as his sister not a foster child. He wants her to be his sister legally and to know with certainty that they will be able to care for her forever rather than just until she is 18.

The Cafcass Officer also performs the balancing exercise required by Re B-S. She comes down firmly and squarely in favour of adoption arguing that N needs permanence. She says that adoption is the only order that adequately and sufficiently meets all of N’s needs.

When she gave her oral evidence, she told me that the Applicants are passionate about N’s welfare. Part of that is her emotional development but part is an acknowledgment of her whole being and background. She said the Applicants have great respect for that and seek to promote it. They have, unusually, forged a decent working relationship with the paternal birth family and seek to continue that relationship in N’s best interests. They gave Ms Hart no indication that would lead her to feel remotely concerned that they would not honour any agreement they make as to direct contact.

In relation to a possible contact order, she added that, if the Applicants become her parents, they should be trusted to parent her, with everything that means, including honouring their agreement as to contact without the need for an order. She felt that making a contact order would not reflect the fundamental effect of adoption and the change in her life and circumstances. She was concerned that a very rigid contact order would not meet N’s needs which were likely to change over time. The situation, she said, needed to be more fluid and adaptive.

She said that making an adoption order was not just about extinguishing the birth family. It would make a huge difference to N as she would become the child of her carers. It would be a huge benefit for her entire life, particularly as she won’t be a fully functioning member of society at the age of eighteen. This would be a huge benefit to her for her entire life. She did not consider a special guardianship order would be remotely sufficient. Whilst legally there would be a change to the status of the Father and a severance of his parental responsibility, she was satisfied that, on the ground, his relationship with N would continue in exactly the same way as before. It would mean that she would be gaining immeasurably from the adoption order without losing her contact to her father. I accept her evidence in its entirety unreservedly.

Applying the law as set out above, I have come to the very clear conclusion that the only order that is right for this case is one of adoption for N. Nothing else will do. Special guardianship will not meet N’s needs for permanence throughout her life. Although it does have the advantage of not severing the legal tie between her and her paternal family, in every other respect it is an unsatisfactory and inappropriate order in view of the circumstances of this case.

It follows that I am satisfied that I should dispense with the Father’s consent. I have formed the absolutely clear conclusion that N’s welfare requires it. The reasons are exactly the same as my reasons for concluding that an adoption order is the only order that will do. Although I have not heard argument, I am minded to dispense with the Mother’s consent on the basis of section 52(1)(a), namely that she cannot be found.

I accept that adoption does have the disadvantage of severing the legal tie between N and her paternal family. In every other respect it is the preferable order to make in this exceptional case. Some of these reasons for adoption are so important that they lead me inexorably to the conclusion that it is the only order that can be made. In any event, the combination of all these factors is overwhelming such that it is abundantly clear that nothing else will do. Notwithstanding the draconian nature of the order, adoption is necessary and proportionate given the huge advantages that it provides to N for the rest of her life.

I have formed the view that an adoption order is overwhelmingly necessary. N has only ever known one home. She has significant special needs. She is a vulnerable child. She will become a vulnerable adult. She has received a very high quality of care from the Applicants. She has thrived with them. She now needs the security, trust and confidence of being made a permanent legal member of their family such that the Applicants will be fully and solely responsible for her needs throughout her life.

I have already indicated that this is an exceptional case. If it were not an exceptional case, I doubt whether an adoption order would have been appropriate. My reasoning is as follows:-

I now turn to the issue of contact. I have already indicated that it is accepted by the Applicants unreservedly that N needs to continue to see her Father and Paternal Grandmother. They propose four times per annum which I accept is a high level of contact in the context of an adoption. Even this is not agreed. The Father seeks a continuation of the order for monthly contact.

I reject outright the submission made by Mr Macdonald that there is some relevance to the fact that the Applicants, in answer to written questions, told Judge Atkins prior to the placement order that they thought four times per annum was not sufficient. Judge Atkins rejected that and approved a care plan that provided for quarterly contact. The Applicants have now come to that conclusion as well. This not a cause for criticism of them. They are immensely committed parents who will do what is in N’s best interests. If they come to the conclusion that the contact should increase, I am sure they will increase it in the same way that they told the court they intended to set aside the whole day so that it can be extended beyond two hours if it is going well.

I am also mindful of the evidence from the Social Worker, Holly Mann, that because of N’s disabilities, she is not aware of the frequency of contact. She knows who her other Daddy is but, unlike most children, she does not have the concept of time to know that she sees him in any form of particular frequency.

I therefore reject the suggestion that the contact should be any other than that proposed by the Applicants, subject to the flexibility that they stress is vital.

Mr Macdonald for the Father says, however, that I should make a contact order. I do not agree. I am giving the Applicants sole parental responsibility for N by the adoption order. They become her parents and are to be trusted to do what is right for her as any parent would do for their child. Applying section 1(6) of the 2002 Act, I am quite satisfied that it is not better for N to make such an order. Apart from anything else, there must be finality to this litigation. The ability to apply to vary a contact order would be very deleterious to N’s welfare.

Mr Macdonald makes the valid point that it would not be satisfactory if I made an order based on there being continuing contact if it were, for whatever reason, to stop after the order was made. I have already found that the Applicants are to be trusted in this regard but, in any event, I remind myself that there is still the ability of the court to grant the Father permission to make an application for contact. In this particular case, if the contact was to stop, I have no doubt that a judge would, at the very least, want an explanation from the Applicants. The safety valve of being able to make that application is fatal to Mr Macdonald’s submission that there needs to be a contact order.

It follows that I dispense with the Father’s consent to the adoption order on the basis that N’s welfare requires it and the Mother’s consent on the basis that she cannot be found. I make an adoption order. I decline to make a contact order.

I very much hope and expect that there will now be a complete end to this litigation.