BT & GT (Children : twins - adoption)

I am concerned with two children, BT and GT who are twins who were born in 2010. It is almost impossible to imagine the circumstances in which it would be considered appropriate to separate twins and place them for adoption by different prospective adopters. This is, however, what occurred in this case and I have before me an application by a couple, whom I shall refer to as A and B, to adopt BT and an application by a single carer whom I shall refer to as C, to adopt GT.

As I shall set out in some detail, I am satisfied and find that the court is in the position of considering applications to adopt the twins in two separate homes because of the incompetence and serial failings of the local authority, Herefordshire Council, and the egregious behaviour of some of its former staff.

The mother of BT and GT is BM. She has played no part in this hearing of the adoption applications and failed to file an application for permission to oppose the making of orders for the adoption of the children. She has attended only one directions hearing on 18 July 2018 in Worcester. The mother had been made an intervenor in these proceedings but because of her failure to engage with the same, I discharged her as an intervenor. The father of BT and GT is BF. He has played no role in these proceedings.

BT and GT have three older siblings, F, E and G. They are all under the age of 18. F and E applied to intervene in these proceedings. I granted them permission to intervene on 18^th July 2018 despite the opposition of all of the parties. They are represented by the Official Solicitor.

BF, the father, is serving a prison sentence having been convicted of multiple offences of abusing children. In 2016, he was sentenced to a term of imprisonment of 21 years.

The local authority and the children’s guardian supported the applications for adoption orders in respect of BT and GT. The Official Solicitor, having considered the evidence and the expert advice, has taken the view he cannot oppose the adoption orders on behalf of E and F.

BT and GT have two older paternal half siblings and two older maternal half siblings. The younger of the latter two half siblings was placed for adoption outside of the family before BT and GT were born. They have never met their two paternal half siblings.

Section 47 of the Adoption and Children Act 2002 provides as follows:

The provisions of section 52 provide as follows in subsection (1):

At all times when considering these applications for adoption I bear in mind the provisions of section 1(2) of the Adoption and Children Act 2002 which provides:

I also have regard to the welfare checklist set out in section 1(4) of the 2002 Act which provides:

I also, of course, have regard to the Article 6 and Article 8 rights of BT, GT, the parents, the older siblings and both sets of prospective adopters. I remind myself, however, that where there is a tension between the Article 8 rights of parents on the one hand and the Article 8 rights of a child on the other, the rights of the child prevail, Yousef v. Netherlands [2003] 1 FLR 210.

I have had regard to a number of authorities. The first is the case of Re W(A Child) [2017] EWHC 829 (Fam), a decision of the then President of the Family Division, Sir James Munby. At paragraphs 78 and 79 he said as follows:

Most regrettably all these admitted failures were not the end of this long litany of errors and misrepresentations. On the second day of the final hearing the local authority discovered there were documents and records, which contrary to previous orders and/or the local authority’s general duty of disclosure, had not been disclosed to the court or to the parties. When the disclosure was made it amounted to some 200 pages. I gave the parties the whole of the following day to read and digest the documents disclosed and to take instructions.

It caused the prospective adopters considerable distress to discover that within this disclosed material were matters relating to the children which had not previously been communicated to them by the local authority nor had it been communicated to the adoption agencies supporting the two sets of prospective adopters. [REDACTED TO PRESERVE CONFIDENTIALITY].

The emotional pressure on the prospective adopters was great enough without the added burden of having to receive and cope with the new information revealed. I do not understand the explanation offered as to why this material had not been disclosed earlier, other than it resulted from yet another error by an employee of the local authority. I received no explanation as to why the information revealed had not been previously communicated to the prospective adopters or their supporting adoption agencies.

It then emerged that the then social worker, D, the author of the sibling assessment had misquoted the opinions of Dr Mair Edwards, a consultant psychologist, who had prepared a report on the children for the purposes of the original care proceedings. The extract contained in the sibling assessment of July 2016 reads as follows:

“Dr Edwards concluded, “If GT and BT were not twins, I would be recommending separate placements for them as GT’s challenging and bossy behaviours do impact on BT’s abilities to express himself and he therefore tends to focus in on his love of mechanical objects and machinery, and withdraws from social interactions…Both GT and BT have significant learning difficulties and developmental delay and will have significant needs throughout their childhoods. Their long-term placement would therefore need to be fully aware of the high level of commitment that will be required, and the ongoing support that the children are likely to require from agencies and services throughout their lives””

It will be noted three dots appear about halfway down the extract indicating some material had been omitted. Counsel for the children’s guardian, Mr Kingerley referred me to Dr Mair Edwards 2014 report. The passage omitted from the above extract reads as follows:

“When observing them together there was very limited interaction (other than GT telling BT to “no talk”), and no real sense of a sibling relationship. However, they are twins, and the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together.”

The words omitted completely change the import and meaning of the quoted section of Dr Mair Edwards’ report. The social worker was not called to give evidence before me nor has she been given the opportunity to give an explanation. Therefore, I will not name her in this judgment. The prospects of this being an innocent omission are unlikely in the extreme. It is not an opening or concluding sentence that has been missed. It is a passage in the middle of the quoted passage from the report and the deliberate omission of some words was marked by three dots. Given also that the omitted section of Dr Mair Edwards’ report sets out an opinion wholly contrary to the ultimate recommendation of the sibling assessment, the only credible explanation for this omission is a deliberate act to mislead a reader of the assessment to conclude that the recommendation of separate placements for adoption was consistent with the opinion of Dr Mair Edwards. It manifestly was not.

I was informed by counsel for the children’s guardian that in another case, some years ago, the self-same social worker was alleged to have tampered with a document. I asked for the issue of the social worker’s role in drafting the sibling assessment to be referred to the Director of Children’s Services and to the Chief Executive of Herefordshire Council. The social worker had left the local authority in March 2018 but had later been re-engaged in some role on a zero hours contract. It was proposed, in the Adoption Support Plans, that this social worker would be carrying out life story work for the twins. The following day I was told by counsel for the local authority that her contract had been terminated with immediate effect.

The issue of separating the twins was considered by a child and adolescent therapist with the adoption team, in her report of 12^th April 2016. On the issues of separation and

In light of this clear recommendation I am at a loss to understand why the local authority did the exact opposite. Prior to placement with the prospective adopters the twins had a ‘see you later’ contact session and that over the succeeding eleven months they had contact on just two occasions. The local authority was unable to explain who had made this decision for there to be very limited contact between the twins post placement or why this decision had been made.

The catalogue of the local authority’s errors and failings in this case is troubling and hugely lamentable. I do not minimise any of the admitted breaches of human rights and/or the other admitted failures by highlighting what I consider to be the most egregious failures, namely:

The Anna Freud Centre, led by Dr Morris, a clinical psychologist, provided the court with a very comprehensive assessment of BT and GT. Dr Morris and Katherine Mautner, a social worker and play therapist, attended court to give evidence on behalf of the clinical team who undertook the assessment.

The assessment of BT concluded as follows:

“BT presents with many of the hallmarks of a child who has experienced inappropriate, neglectful, unpredictable and abusive parenting in his early years. Despite the clinically significant emotional (regulation) and behavioural difficulties he presents with, there is not convincing evidence at this stage to support a diagnosis of any major psychiatric condition; his symptoms are best understood in the context of both specific and general developmental trauma, including neglect, and global developmental delay. His behavioural and associated relational problems serve to protect him from the impact of overwhelming feelings, at the cost of his functioning and development. [REDACTED TO PRESERVE CONFIDENTIALITY].

There are several protective factors in BT’s life – he has some clear strengths and is a kind and playful boy with a great sense of humour. He has an emerging sense of self, taking pride in showing us his room, telling us about his likes and dislikes and, at times, asserting his needs. He appears to have made significant progress in his current placement, and the increasingly secure relationship we observed with the prospective adopters is, itself a protective factor. However, as we saw during the course of the assessment, the progress BT has made is very fragile and his strengths and abilities can quickly fall away when he is in touch with even fairly normal feelings of fear or vulnerability and/or traumatic memories.

It is possible that the global developmental delay observed is simply attributable to the neglect and abuse that he received in his early years, rather than a more biological explanation. Given the security stemming from benign but clear boundaries in the context of love in his primary carer relationship, and continued assessment and intensive therapeutic input (described elsewhere in this report), this delay might be expected to catch up in time. Our understanding is that there has already been significant developmental catch up since BT came into his present care setting. [REDACTED TO PRESERVE CONFIDENTIALITY].

The summary of the centre’s assessment of GT was:

“GT presents with many of the hallmarks of a child who has experienced inappropriate, neglectful, unpredictable and abusive parenting in her early years. Despite the clinically significant emotional (regulation), social and behavioural difficulties she presents with, there is not convincing evidence at this stage to support a diagnosis of any major psychiatric condition; her symptoms are best understood in the context of both specific and general developmental trauma (including neglect) and a global developmental delay. The disconnected way she relates to herself and associated relational problems serve to protect her from the impact of overwhelming feelings, at the cost of impaired functioning and development. Her early history, combined with her current presentation, place her at a very high risk for developing a major psychiatric condition in the future without significant and prolonged intervention (described elsewhere in this report).

There are several protective factors in GT’s life – she can be a warm, enthusiastic and playful girl with a quirky sense of humour. She appears to have made significant progress in her current placement and can now sometimes use others to help her understand her own internal experiences. The increasingly secure relationship we observed with her prospective adopter is, itself a protective factor. However, as we saw during the course of the assessment, the progress GT has made is very fragile and she can quickly resort to primitive defence mechanisms such as disassociation to segregate intolerable mental states when she is in touch with difficult feelings or memories. It is likely that such defence mechanisms helped her to survive her early trauma. However, their continued use had led to significant disturbance in the development of a coherent self-construct, as she appears to have an only just emerging sense of self. Lack of a coherent sense of self is a significant risk factor in difficulties in the development of personality.

It is possible that the global developmental delay observed is simply attributable to the neglect and abuse that GT received in her early hears, rather than having to evoke a more biological explanation. Given the availability of benign but clear boundaries in a context of love in her primary carer relationship, an continued assessment and intensive therapeutic input (described elsewhere in this report), this delay might be expected to reduce over time. Our understanding is that there had already been significant developmental catch up since GT came to her present care setting. However, it is impossible to say at this stage to what extent this is likely to occur, and in our view, it is quite likely that GT will retain some level of learning difficulty. At this stage we hypothesise that the autistic type behaviours observed during the assessment are primarily associated with GT’s disconnected states of mind and mistrust in the world/others. However, we recommend further assessment in the future.”

The report from the centre sets out in considerable detail the current and future needs of BT and GT, of how these can best be met, of the support services they and their carers will require and what should be contained in each child’s Adoption Support Plan.

On the central issue of whether BT and GT should continue to be placed separately or whether they should be reunited in one placement the advice was:

“As mentioned above, while BT and GT’s shared experience is important in relation to their identity, as well as their sense of continued connection, it is also marked by trauma and loss. There is some evidence that BT works to distance himself from that in the current contact and there is a history and complex and at times negative dynamics in their relationship with one another. It is likely that his would make living together and sharing resources very difficult for BT and GT and would set up the adults charged with this responsibility, with an extremely difficult task. GT and BT need to be able to regulate their experiences of connection with one another and with their early memories, which would be almost impossible if they were living as part of one family.

Placing the children separately but supporting them to maintain a meaningful and ongoing relationship allows them to maintain their connection and positive relationship with each other into the future, while allowing them to develop their own life narratives and have space away from the trauma they shared. Our assessment of the prospective adopters’ ability to support the sibling relationship going forward is positive.

There is evidence that both children have made significant progress in their current placements and are forming positive attachment relationships. To remove them from their current placements would, in our opinion, constitute a further severe developmental trauma and constitute significant harm…

In summary, it is our view that the benefits of placing the siblings together is outweighed in this case by the likelihood that their high level of need could not both be met in one placement, that their separate placement but continued relationship offers them the best opportunity for recovery, and that removal from what the children have come to view over the last 12 months as their parents, their family and their home, would constitute further developmental trauma.”

The centre considered the issue of whether BT and/or GT should have contact with their mother and/or their older siblings. They opined as follows:

“In our opinion, BT and GT remain very vulnerable and each child’s emerging sense of safety remains fragile. Direct contact with members of their birth family who they haven’t seen since before they moved into their current homes would likely undermine this progress and of the tentative sense of safety that they are each developing.”

“While it may be that incidents of direct abuse were largely perpetrated by their birth father, the evidence in both children (of their current emotional functioning) suggests that neither parent was able to provide a consistent sense of safety. In addition, it is likely that BT and GT’s memories of their early years are of a bodily/sensory type and perhaps audio/visual but are unlikely to be coherent or autobiographical in nature. As such, there may be things that they would notice about their birth mother (such as the sound of her voice/the way that she smells) that triggers responses related to traumatic experiences, even if these actually belong more firmly to their memories of their birth father.

On this basis, we can speculate that direct contact would likely be a frightening experience. Further, the trust that they are building in their carers to keep them safe and help them to regulate overwhelming negative affect would likely be profoundly undermined by this experience.

We do not recommend that direct contact with the birth mother should be considered until the children are old enough to explore this possibility for themselves (probably in adolescence) and even then, this should be approached with caution. In the meantime, we recommend that annual letterbox contact is appropriate to maintain a link for the purposes of BT and GT’s developing identity.”

“However, our assessment leads us to speculate that GT and BT might be more able to manage direct contact with their older siblings once their primary attachment relationships (with their adoptive parents) and their relationship with one another are more firmly established. This leads us to recommend that twice a year letterbox contact should be set up at this time (to include photographs if this is safely possible) and that the possibility of direct contact should be revisited in 2 years’ time. This contact reassessment should include a review of the quality of letterbox contact in the intervening period; an update on how settled GT and BT has each become in their adoptive families (for example frequency of emotional dysregulation, how they have managed minor difficult experiences or transitions, how they have been able to make and manage new relationship); an update on the circumstances of whichever birth sibling has requested contact (how settled they are in their own relationships, their emotional wellbeing, how close their relationships are with other birth family members and how well they would be able to maintain a level of safe confidentiality for example about the whereabouts of each twin’s adoptive family).”

Dr Morris and Ms Mautner, with the agreement of all parties gave evidence together. I wished to explore two matters with them:

I am immensely grateful to Dr Morris and Ms Mautner for the clarity of the evidence they gave and for the care and earnest consideration they had obviously given to the issues in this case. At the conclusion of their evidence I was persuaded to accept the recommendations they had made and their reasons for the same.

Dr Morris told me that both children were receiving a very high quality of care from their prospective adopters. BT and GT feel ‘ownership’ of their separate families. Living apart but coming together at regular contact visits offers them the best opportunity to enable them to build a positive and enduring relationship with each other. The recommendation was that contact should occur at a minimum of six times per year with indirect contact by Skype, Facetime and/or letters and cards taking place on a more frequent basis. Ongoing direct and indirect contact is so vital for BT and GT that Dr Morris advised that the court should make a contact order. This is required to make very clear the importance of contact for the twins and not because of any lack of commitment on the part of the prospective adopters. All three of them recognise and accept the children’s need for regular and indirect contact and are fully committed to ensure the same occurs.

On the issue of removal of BT and/or GT from their current carers Dr Morris and Ms Mautner made a number of important points:

In relation to the issue of whether an order short of adoption (e.g. a special guardianship order (‘SGO’)) would meet the needs of the children, Dr Morris and Ms Mautner agreed it was a very difficult question. They had not previously taken into account that the fact that by being adopted separately BT and GT would lose their legal status as brother and sister (I mention this not as a point of criticism but as a matter of fact). They both reflected. They then gave a very powerful reason for preferring an adoption order. BT and GT will be likely to remain vulnerable into early adulthood. They will need a legal family to provide for and to look after them beyond attaining the age of 18. An adoption would provide this forever family. A SGO, of course, would cease to have effect when they attain their majority. The carers would then have no relationship or connection with BT or GT in law. The only people who would have a legal relationship with would be their mother and their father: the very people who had harmed and abused them and caused them profound emotional, psychological and developmental damage.

I found this evidence to be powerful and compelling.

Ms Elgar, the assistant director of children’s services, and Ms Leader, the team manager, gave relatively brief evidence. Ms Elgar had been in post from June 2018 and Ms Leader became the team manager in July 2017. They both offered profuse apologies to the prospective adopters for the actions and failings of the local authority.

Ms Elgar could not explain how or why the material which had been disclosed at this hearing had not been disclosed at an earlier time or had been ‘lost’ by the local authority. She recognised the local authority’s serious shortcomings and sought to assure the court that action had been, and would continue to be, taken to resolve the identified and admitted failings of the local authority. She accepted the deletions from the CPRs and Adoption Support Plans resulted from a deliberate and wrongful act by an employee of the local authority.

It was Ms Leader who, having heard certain observations by me, checked the electronic records and discovered a considerable amount of material had not been disclosed. She readily accepted the decision to terminate BT’s adoptive placement in late 2017 had been wrong and the whole episode had been badly dealt with by the local authority. Mr Noble had noted that some of the documents disclosed in the hearing related to events some months or even up to two years before but had only appeared on the local authority’s computer system within days of each other in February or March 2018. When asked why this was, Ms Leader said that the previous social worker, D, had got seriously behind with her administration and had thus spent the last few days of her employment uploading two years worth of notes, records and other documents onto the system. When asked how this could have been allowed to happen, she could give no answer other than to say it was not good practice. This ranks as a masterful understatement and was a completely inadequate response. For the last seven or eight months of the social worker’s employment in children’s services, Ms Leader had been her line manager and had taken no effective steps to remedy this extraordinary state of affairs.

Finally, Ms Leader confirmed that no note, record or document had been found relating to the decision made on 10^th April 2016 that BT and GT should be placed separately for adoption.

I propose to say little if anything about the circumstances and background of A and B or of C. These details are not relevant to the issues I have to determine and I would not wish to take the unnecessary step of setting out details about them which might inadvertently lead to their identification by any person. The only material issue is the quality of care and commitment they have and will give to BT and GT if they are to remain in their care.

I unreservedly accept the evidence of the Anna Freud Centre, the local authority’s assistant director and of the guardian that A and B and C have given and would continue to give great love, commitment and superlative care to BT and GT.

No party wished to cross examine either A, B or C. I told counsel that I would be happy to hear from one or more of them if they wished to give evidence but I did not require them to give evidence. Unsurprisingly they did not wish to give evidence. Their witness statements were very helpful and comprehensive.

A and B painted the following picture of BT in their first statement:

“BT is a wonderful boy, full of kindness and enthusiasm. He wants to try everything and loves learning how to do things. He is happy and relaxed with us. We spend many days happily doing normal things that families do. Sometimes we just play and potter around at home together. Other days we might go out riding on our bikes or visiting family and friends. Sometimes, the court proceedings and conversations with the local authority, make it seem like our family life is constantly strained by BT’s behaviour and our ability to cope with it. In fact, this is far from accurate. Whilst BT’s behaviour has of course been very challenging, especially in the first months, we have in more recent months actually found most of our time with BT to be the family we wanted and expected it to be when we adopted. We feel that BT is also happy and feels like he is part of a family, living a positive family life.

We think that BT needs and deserves a family life with the permanency and security that only adoption can provide. Over the last year we have developed trust and family life with BT and worked consistently to increase his sense and understanding that his new family with us is forever, and that we will always look after him. BT refers to us as a family, wants family hugs and draws pictures of us all together. He is bonding with, and embracing of, our wider families. He is excited and is starting to understand that they are now his family. BT loves playing with his cousins and chatting with aunts, uncles and grandparents. For example, one of his favourite things to do is to sing along to the radio, especially with his grandmother who he refers to as ‘nan’.” But he does present challenging behaviour at times:

“The level of BT’s violence was a shock to us and it was not something we were prepared for. It certainly took us a while to learn the most effective ways to respond to it (and we are still learning each day). We have tried to understand BT’s behaviours and it causes, appreciating that due to his early years and his unprocessed trauma, that BT is a child who can easily be triggered into a fight or flight response. We have and continue to work hard to make BT feel safe and to distract him and reassure him as needed to reduce the times he triggers. We understand that once in the ‘fight or flight’ response that BT is no longer using his rational/thinking part of his brain and is lashing out to protect himself, the most basic of instincts.

We have been advised that at these times BT is functioning much more like a toddler having a meltdown and as such needs comforting, cuddling and containing. Where possible we do this with a cuddle and when necessary we wrap our arms around BT in a safe hold that keep BT and us safe. BT had always received from us the robust message that violence is not acceptable and he must not hit. He is very aware that it is not acceptable, the days when he has not hit, he will often at bedtime say ‘no hitting today’ and seem genuinely proud of himself.”

In respect of their view of this local authority they said:

“Given the above, we are sad to say that we have very little trust in Herefordshire and feel apprehensive about working with them moving forwards. We are fully aware that so long as BT remains in our care, we will need to work with Herefordshire in the future. We want this to be a positive and meaningful relationship for BT’s sake. However, we think it may be necessary for work to be put into that relationship, including us and the social workers attending mediation or other type of relationship building exercise, before this can be achieved.”

They gave the following reasons for seeking an adoption order as opposed to any other sort of order:

“In terms of what decision we want the court to make, we are clear that an Adoption Order is what is best for BT. We have been a family for a year now and our closeness and sense of family increases with each day. We want and have always wanted to adopt BT. Quite simply, he fits perfectly with us. We want to give him that permanent security for the rest of his life. For the first time in his life he has parents who will love and look after him forever. We are clear that only adoption will enable BT to have that. We don’t want BT to miss out on being adopted and having a forever family because of the flaws in other people’s actions. That would have a devastating impact on the rest of his life.

Finally, we would like to make it abundantly clear that we do not consider it to be in BT’s interests to move to a different placement now. We cannot bear the thought of him having to go through another move, and how that would destroy his ability to form attachments and develop trust, and how much he would miss us and how much we would miss him. He is our son and we are his parents.”

These are all very eloquent expressions of their intense love for and the commitment they have shown to BT.

C described GT in the following glowing terms:

“I am concerned that, in amongst the necessary legal negotiations and discussions, as well as those regarding GT’s needs, something of her personality is getting lost. I would like to take this opportunity to tell the Court about her. GT is not a child who is ‘easy’ to parent, but alongside the challenges is a fantastic, funny, caring, curious girl, who brings a great deal of joy and love into my life.

She has a sunny disposition when she is feeling secure, and likes to see other people happy as well. She enjoys trying new things, and will take herself out of her comfort zone to get such experiences. GT is proud of her achievements, especially when she had put in a lot of effort, and it was lovely to hear recently that she encourages her classmates to achieve as well.

Although she is sometimes hesitant to interact socially, she loves playing with other children, and frequently makes new friends at the play park. I am immensely proud of her.” However, life can be difficult at times:

“Once GT was placed with me it became clear very quickly that GT was not a little girl who would throw a tantrum. GT would rage and these rages would last for a couple of hours. She would become physically aggressive and it can be difficult to manage these outbursts. This has resulted in me having to restrain GT, and GT’s shouting and screaming has led to the neighbours raising concerns with child protection agencies.”

In respect of A and B, C described their relationship as follows:

“I have only known [A] and [B] for a short period of time but feel we have a good bond and are more than able to communicate with each other in respect of GT and BT. I would consider them friends.

I am confident that this relationship will help us in the future to arrange contacts between our children. My vision for future contact is that contact should be fluid and it should feel like a normal family dynamic. I truly believe in the future [A], [B], BT, GT and I will be a quasi-family and we will be able to make contact arrangements between us.”

C gave her reasons for seeking an adoption order in the following terms:

“I believe that an Adoption Order is the only Order which can provide GT with the security and knowledge that I am her parent and this is her ‘forever home’.

It is crucial for GT’s development of trust with me that she feels safe and secure in my care. I feel if GT does not consider this her permanent placement she would not trust me and that her behaviour will destabilise. I fear a result of this would be that GT reverts to her defiant and oppositional behaviour which she has used as her survival mechanism previously.

This behaviour, combined with GT’s continued growth in strength and size will mean I may find it difficult to cope and manage these behaviours in the future.

Due to her learning difficulty and emotional wellbeing, GT is likely to remain a very vulnerable individual throughout her life. I am concerned that an alternative to adoption will not offer sufficient safeguards or protection from those who have previously caused her harm. I cannot see myself in a position sharing parental responsibility with the birth parents, even if the birth parents’ parental responsibility is notional.

For GT her sense of belonging is very important. She identifies as GT [X] which is central to her emerging sense of self and allows her to feel part of a family, our family.”

I am grateful to the children’s guardian for his very helpful and thorough report. In his evidence he confirmed his opinion that given the children had been with the prospective adopters for some eighteen months and in light of the recommendations of the Anna Freud Centre, it was in the welfare best interests of BT and GT to remain in the care of their respective prospective adopters. He had carefully considered the issue of adoption against SGOs and had reached the clear conclusion that only adoption would secure the degree of permanence, security and stability which both BT and GT would require throughout the whole of their lives.

In relation to E and F he agreed with the recommendations of the Anna Freud Centre that they should have indirect contact with BT and GT twice per year and the issue of some direct contact should be reviewed in two years’ time. He had met with E and F on a number of occasions and had been impressed with their attitude on the issue of contact and with their acceptance of the limitations that there would currently be with contact to their younger siblings. He did not consider an order for contact was necessary given the agreement of the prospective adopters to the proposed contact but agreed it would be useful for the local authority to draw up a schedule of contact.

There was one issue in respect of contact between BT and GT and F and E, which related to the provision of photographs. F and E wanted to receive regular photographs of BT and GT which they could keep. The prospective adopters did not object to F and E seeing photographs of the children as part of their agreed indirect contact but opposed them taking and keeping the photographs; they asserted these should be held by the local authority.

The children’s guardian accepted there was a risk that photographs might come into the possession of the parents or might otherwise appear on social media. Given, however, his favourable opinion of F and E, he favoured them being permitted to take and keep any photographs provided.

I have struggled with the concept that a court could find that it was in the welfare best interests of twins to place them separately for adoption. From the time the case first came before me up to and during the course of this final hearing I was keen to find a route by which BT and GT could be reunited in a single placement. If this proved impossible to achieve, I was keen to find a legal framework, short of adoption, which could afford them the degree of permanence, stability and security which I entirely accept they both so desperately require.

For the avoidance of any doubt, as I observed in the course of the hearing, in expressing these views I did not for one moment doubt the love, commitment and care which A, B and C have afford to BT and GT: quite the reverse. I wholeheartedly commend both sets of prospective adopters for the enormous great love and devotion they have shown to BT and GT, for their unswerving commitment to them and for the superlative care they have given BT and GT. It is plain that, notwithstanding the grave harm and damage they suffered in their past lives, they are thriving beyond expectations in the care of A and B and C. The stoicism each of these adults have displayed in the course of these lengthy proceedings has been admirable.

Nevertheless, BT and GT are not just simply siblings they are twins. In making adoption orders in favour of two separate sets of prospective adopters, I would sever the legal relationship of BT and GT as brother and sister. Further I would sever their legal relationship with their elder siblings. Whilst the latter is very important, it is the former consequence of adoption that principally troubles me.

There is no question of it being a realistic option in the welfare best interests of the children for either of them to return to the care of either parent. The mother manifestly is not capable of caring for them and neither is the father. In any event, he is serving a very substantial custodial sentence and is convicted of offences of child abuse.

Is there any other realistic placement together or apart? On the basis of the powerful and compelling evidence presented by the Anna Freud Centre and the most impressive and persuasive oral evidence of Dr Morris and Ms Mautner, supported by the children’s guardian and the local authority’s assistant director, and the compelling evidence of the prospective adopters, the answer is a resounding no.

I am of the view that if this local authority had exercised good social work practice and exercised a modicum of child focused judgment in its decision-making processes, there was, in my judgment, a real possibility that the children could have been placed and lived together for a substantial period of their childhoods. They had, I note, lived together in their foster placement for nearly three years albeit not without presenting their foster carers with immense challenges from time to time. Whatever the possibilities of being placed together, I am completely satisfied that the actions of this local authority denied them the opportunity of this option being properly explored which is, to put it mildly, deeply regrettable and will have an impact, great or slight, for the whole of BT and GT’s lives.

I am satisfied on the totality of the evidence before me that I cannot now contemplate moving either BT or GT, or both of them, from their placements without causing them serious harm and, potentially, lifelong grave harm. They are well settled with their prospective adopters and are plainly well integrated into what they consider to be their respective families. They are, for the first time in their lives, allowing themselves to believe they have their forever family. If one or other of them or both of them were to be moved, I accept the evidence of the Anna Freud Centre, that one or both of them would be devastated. They would suffer a sense of considerable loss, their behaviour would undoubtedly regress and they are likely never to allow themselves to trust a future carer or others involved in their lives: even if not likely, there is a substantial risk this would be the consequence of a removal.

To embark on the removal of the children with all the attendant serious adverse consequences cannot, in my judgment, be in the welfare best interests of either BT or GT. Accordingly, I am now persuaded and satisfied that both BT and GT must remain in the care of their respective prospective adopters.

The next question is under what legal framework should BT and GT live with their carers? The only realistic options are adoption orders or SGOs.

The adverse consequences of adoption, namely the severing of the legal status of BT and GT as siblings and the severing of the legal relationship with the older siblings greatly troubles me. It weighs heavily in the balance against making an adoption order.

My concerns are to some degree mitigated by:

I recognise and take account of the fact that an adoption order would sever BT and GT’s legal relationship with their mother and father. This is a serious consequence but given their wholly adverse involvement in BT and GT’s past lives, it is not a consideration which weighs heavily in the balance.

An adoption order would bring considerable benefits to BT and GT. They would, throughout the whole of their lives, be permanent members of their new families. Importantly the order would have effect for the whole of their lives and not just until they are 18. I accept that BT and GT need and crave a permanent family where they will be and they will feel stable and secure in a loving, safe environment.

A SGO would confirm BT and GT’s placements with their respective carers and would grant their carers parental responsibility for them. It would enable them to determine the extent to which, if at all, BT and GT’s mother and/or father could exercise their parental responsibility. This order would not sever the legal status of BT and GT nor affect their legal relationship with their older siblings.

The singular disadvantage of a SGO is that would and could only last until the children attained the age of 18. Then the only people with a legal relationship with BT and GT would be the mother and the father (and their older siblings, of course). BT would no longer have any legal connection with A and B nor GT with C. This scenario would not be in the welfare best interests of either BT and GT. They will need to be reassured that they are safe from any future involvement with their mother or father. Such reassurance is unlikely to be engendered by them knowing they have a legal relationship with their birth parents but no legal relationship with the people whom they consider to be their parents and who are their psychological parents.

I accept the evidence of the Anna Freud Centre that even when they attain 18 years of age, BT and GT will be vulnerable young people who will still need the reassurance of

Taking into account all of these competing factors, I am satisfied that making adoption orders in respect of BT and GT is the only means of securing their future care and are the only orders which are in their welfare best interests. In the circumstances of this case at this time I am satisfied that adoption orders are necessary and are a proportionate response to the overwhelming needs of these children.

Neither the mother nor the father consent to the making of adoption orders. BT and GT were, however, placed with their respective prospective adopters by an adoption agency, Herefordshire Council, and under placement orders. The mother and the father have not applied for nor been granted leave to oppose these adoption applications. Accordingly, the second condition of s.47 ACA 2002 is satisfied and I do not need to consider the issue of dispensing with either parents’ consent to the making of adoption orders: s.47(4) & (5) ACA 2002. If I had had to consider the issue of dispensing with their consent, I am wholly satisfied, for the reasons given above, that the welfare of BT and the welfare of GT would have required me to do so: s.52 ACA 2002.

E and F were represented by the Official Solicitor. They did not attend court but a

The one issue in dispute was whether they should be given and keep photographs of BT and GT. I am in no doubt of the great and sincere love F and E have for their two younger siblings. I accept they are both in stable placements and, as the guardian described, I accept they have demonstrated a significant degree of maturity and insight into the limitations of their future contact with BT and GT. I further accept neither would willingly show any photographs of BT and GT to their parents or place any of them on social media.

In these circumstances I accept the guardian’s view that nevertheless there must be some risk that these events might occur in the future. Whether significant or small this is a risk which will be borne by the prospective adopters. The consequences of any photograph of BT and GT coming into the hands of the parents or put on to social media could potentially be catastrophic. Accordingly in my judgment the issue of whether F and E should be permitted to take and keep photographs of BT and GT is for A and B and C to decide: it is not for me to impose my assessment of the risk identified upon them.

It may well be that once A and B and C have been able to put the distress and pressure of these proceedings behind them and have settled into a routine of indirect contact with F and E, one or both sets of carers will feel able to change their view on this issue.

I have referred in paragraph 3 above to the local authority issuing and then purporting to withdraw the notice in November 2017 in respect of BT’s placement with A and B. At an earlier stage in these proceedings an issue was raised as to whether an adoption application could validly be made by BT’s prospective adopters in light of the service of a s.35(2) notice. The matter was not pursued by any party at this final hearing. Nevertheless, Ms Reed, counsel for A and B, was concerned that the issue could be raised at a later time in the context of a challenge to any adoption order made in respect of BT in favour of A and B.

I shared the concerns expressed by Ms Reed. Accordingly, and to put the matter beyond doubt, with the consent of all parties and sitting as a judge of the Administrative Court, I gave A and B permission to issue a claim for judicial review to challenge the decision to terminate the placement and to issue to s.35(2) notice. I then deemed them to have made an application for judicial review.

I considered the decision of the local authority to seek to remove BT from his prospective adopters’ care to be so demonstrably unreasonable as to be irrational. This conclusion is reinforced by the local authority reversing its decision and purporting to withdraw the s.35(2) notice just two days after the decision was communicated to A and B and the notice was issued. Therefore, I am satisfied that the decision to remove and the issue of the notice was unlawful and both should be quashed.

The HRA claims brought on behalf of the children and by the prospective adopters were made wholly outside of the application for adoption being determined in these proceedings. They are in my judgment wholly unconnected with these proceedings. I make mention of the claims in this judgment so as to ensure it gives a comprehensive account of the circumstances and events surrounding these children and these prospective adopters.

As I mentioned earlier in this judgment the children’s legal costs in issuing Part 8 claims and negotiating a settlement are to be met by the local authority as are the legal costs of the prospective adopters in negotiating a settlement.

The breaches of the human rights of the children are encapsulated in Annexe 1 to this judgment. The breaches relied upon by the prospective adopters and admitted by the local authority are in like terms: they are set out in Annexe 3, in respect of A & B, and in Annexe 4, in respect of C, to this judgment. The breaches are extensive and relate to almost every aspect of this local authority’s involvement with the children and the prospective adopters.

The damages agreed in satisfaction of A and B’s HRA claim were £5,000.00. The same sum was accepted by C in respect of her HRA claim.

When considering the infant settlement approval of BT and GT’s respective claims for breaches of their human rights I had the benefit of advice on quantum by Mr Kingerley dated 16^th November 2018. The local authority offered in settlement of the children’s claims the sum advised by counsel, namely £20,000.00 each. I was satisfied in all the circumstances of this case and having regard to recent authorities on the issue of HRA damages, that these were entirely reasonable damages to offer just satisfaction to both children. Accordingly, I approved the settlement achieved for BT and for GT. Further I made the declarations of the breaches of human rights of BT, GT, A & B and C in the terms agreed and set out in Annexes 1, 3 and 4 to this judgment.

The children’s guardian made an application for an order for the children’s costs in these proceedings against the local authority: no other party made an application for costs. The local authority did not actively oppose the application but submitted the issue of costs was a matter for the court.

When considering this application I have had regard to the decision of the Supreme Court in Re T [2012] UKSC 36, affirmed in the case of Re S (A child) [2015] UKSC 20, and in particular to the judgment of Lord Phillips where he said, at paragraphs 42 to 44, as follows:

“In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him. The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made.

Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate "in the vast run of these cases to make an order for costs in whole or in part by reference to the court's determination of issues of historical fact". But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant.

For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse's costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.”

My initial reaction to the costs application was that the conduct of the local authority had been so poor that it amounted to reprehensible behaviour. On reflection, however, this behaviour relates principally to conduct prior to the commencement of these proceedings. Moreover, whilst the failure to make full disclosure prior to this final hearing was deeply unfortunate, to say the least, and for reasons which the local authority has been unable to explain, their stance in this litigation could not be said to have been unreasonable: it has fallen on its proverbial sword.

I also take into account that the reprehensible behaviour of the local authority has been marked by the agreement to pay £20,000.00 in damages to each child for serial breaches of their human rights and the local authority has borne the costs of these claims.

When considering whether it is just to make a costs order against the local authority I have regard to the competing demands on the limited funds of this authority.

Accordingly, whilst the actions and failings of this local authority are utterly appalling, considering matters in the round, I have concluded it would not be just to make an order for costs against the local authority in favour of the children’s costs of these proceedings. The local authority’s funds would be better spent in securing the reforms that are so urgently needed to be implemented in the children’s services’ department.

I am wholly satisfied, albeit in quite exceptional circumstances, that it is in the welfare best interests of BT and GT to remain in their respective prospective adoptive placements subject to them having regular direct and frequent indirect contact with each other now and for the future.

For the reasons I have given, I am also wholly satisfied that only an adoption order will bring the permanence, security and stability that they both now require and are most likely to require throughout the whole of their lives. An adoption order is pre-eminently in the welfare best interest of BT and GT even when taking account of the fact that a consequence of the orders will be to sever the legal relationship between them as siblings and between them and their older siblings.

The high importance, indeed the imperative need, for regular direct and frequent indirect contact to take place is such that I will make a contact order in the terms sought. I do not make a contact order because I entertain the slightest doubt about the dedication of these prospective adopters to ensure this contact takes place, indeed, I am satisfied that the prospective adopters are committed to this contact and recognise that it is in the welfare best interests of BT and GT. I make a contact order (i) to mark for the twins the importance this court places on their ongoing relationship notwithstanding they are adopted separately and (ii) to fortify the adopters in the event that one or other twin is reluctant to the attend contact in the future.

The mother and the father do not consent to the adoption of BT and GT but the second condition of s.47 ACA 2002 is satisfied and, therefore, the issue of dispensing with their consent did not arise.

I make an adoption order in respect of BT in favour of A and B and I make an adoption order in respect of GT in favour of C.

I invite A and B and C to continue to reflect on whether now or in the future F and E could be permitted to be given and to keep photographs of BT and GT. As I have said, I consider this a decision for them to make and not for the court to impose upon them.

I shall not make an order for costs against the local authority.

I am all too aware of the financial constraints imposed on this local authority’s children’s services and the difficulties encountered in recruiting and retaining social workers. These difficulties do not explain, still less excuse, in this case the actions and failings of the local authority.

The failings of this local authority have been utterly appalling. Whilst I accept the assurances of the director of children’s services and of the assistant director that significant and substantial reforms will be made and effected, no child should ever again be cared for in the manner BT and GT have had to endure at the hands of this local authority nor suffer the woeful lack of rational care planning. Further no prospective adopter should ever again have to endure the treatment meted out to A, B and C in this case.

I shall order that a copy of this judgment shall be sent to the Secretary of State for Education, the Senior Social Worker, Ofsted and the Chief Executive of Herefordshire Council.