AW (A Child: Application to Revoke Placement Order: Leave to Oppose Adoption)

The circumstances which lay behind the local authority’s application to revoke a Placement Order made by the Justices on 7^th September 2013 were unique in my experience.

The legal framework in the period leading up to the beginning of this hearing was, to say the least, complex. Leaving legal issues to one side for a moment, no party suggested there should be a hearing without oral evidence; indeed most of the represented parties positively encouraged a process in which the parents, in particular, should give evidence from the witness box.

I was intent, as I had been at the interlocutory hearings in early July, to ensure a fair and just decision-making exercise, mindful of the troubling chronology relating to the parents’ thwarted attempts to first appeal and then discharge the placement order during the autumn, winter and early spring of 2012 / 2013. In short, I was determined to do justice and not injustice. A summary process, limited to legal argument focused on satisfying certain criteria, would not have been sufficient. It would not have achieved fairness or been proportionate given the importance of the question at issue. The parents would have felt that they had been denied a proper hearing and with cause.

The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order, was based on pragmatism and a desire to achieve a swift but procedurally fair outcome to the proceedings. Mr Alistair Perkins of Counsel, so I believe, was instrumental in formulating the local authority’s legal strategy, anxious as it was to circumvent an application by the parents for judicial review which, almost certainly, would have taken many months to reach a conclusion.

Thus, the case was listed for hearing during this week in August, the only three available days in my diary before October, so as to resolve the key question as to whether or not the child should continue on the path towards adoption. If I were to decide the parents’ claim should prevail then the only proper course would be to enable them to participate at what would be a fully contested adoption application at which they would argue for rehabilitation.

When the hearing began on Monday, Ms Fottrell, who represents AW’s prospective adoptive parents, Mr and Mrs A, had filed a lengthy and erudite Skeleton Argument. She invited me to dismiss the local authority’s application on the basis it was misconceived, arguing that if it were to proceed I would effectively be permitting a parent to apply to revoke the order in a way which circumvented both s.24(2) and s.47(5) of the Adoption and Children Act 2002.

Last week, on 7^th August 2013, Solicitors representing Mr and Mrs A issued an application for adoption. That fact enabled Ms Fottrell to go on to submit that the parents might achieve their central aim of securing a substantive hearing by making an application for leave to oppose the making of an adoption order. No party disagreed. Ms Fottrell suggested it was the only remedy in the current factual circumstances which does not offend the letter and spirit of the statute. And whilst that contention is almost certainly correct, it has to be said that until proceedings for adoption were begun there was no other available legal vehicle so as to enable the court to be seized of the issues.

Ms Fottrell also contended that an application for leave to revoke the placement order and an application for leave to oppose the adoption are analogous. In order to succeed in relation to the former, and at a time before the child had been placed for adoption, a parent would have to demonstrate there had been a change of circumstances since the order was made. The court would then go on to consider whether or not to exercise its discretion and also whether the application has a real prospect of success (Re F (a Child) EWCA Civ 439).

In relation to the latter, an application for leave to oppose the adoption, a parent would have to satisfy the court there has been a change of circumstances which is relevant or material to the question of whether or not leave should be granted. The change in circumstances must be of an nature and degree sufficient on the facts of the particular case to open the door to the exercise of judicial discretion; and the paramount consideration must be the welfare of the child throughout her life (Re P (Adoption: Leave Provision) [2007] 2FLR 1069).

Miss Fottrell’s Skeleton, between paragraphs 38 and 41 relates the applicable law by reference to the authorities. I am very grateful to her and have no hesitation in adopting her analysis which, in the circumstances, requires no repetition here.

So as to reconfigure the legal ambit of the hearing, Ms Fottrell drafted an order on Monday reciting that the parents’ deemed application for leave to oppose the adoption would be heard at the same time (these three days) as the local authority’s revocation application. Thus, it was possible to make progress in a way which did not offend the statutory code whilst at the same time meeting the parents’ desire for a substantive hearing.

Against that procedural background, I turn to consider the chronology as relevant to my conclusions.

AW is almost exactly two years old. She was born in August 2011. Her mother, NT, is 26. Her father, AA, is almost 24. They have been a couple since about May 2010. In addition to AW, they have a baby daughter, MT born in November 2012. By the end of October this year, so in a little over two months from now, the mother will give birth to their third child. Currently, she is 28 weeks and visibly pregnant.

The mother has older children as the result of an earlier relationship. Those two children, both boys, (now aged 5 and 3) were made the subject of full care and placement orders in June 2011 essentially because of exposure to domestic violence, neglect and the mother’s problems in managing aggression. Expert assessments concluded that neither the mother nor AA had the capacity, maturity or motivation to parent. Nor did they demonstrate by their sporadic attendance at contact that they were committed to the boys.

The mother and AA did not attend the final hearing of the care proceedings relating to her older two children because, by then, she was heavily pregnant with AW and wished to conceal the pregnancy from the local authority.

AW’s existence was eventually discovered and she was taken into care in December 2011 when almost four months old after a brief period when the parents had absconded with her. Between early December 2011 and April 2013, AW lived with foster parents and had frequent contact with her parents, reducing after the final hearing of the care and placement applications in September 2012.

At that hearing, there was agreement as to the way in which the Justices would be invited to approach the threshold criteria. The local authority’s assertions came under several headings as follows – the mother’s history; neglect; domestic violence; anger management; drugs and illicit substances misuse; learning disability / parenting capacity; insight / capacity for change and failure to address personal difficulties; as well as failure to engage with professionals.

In relation to the welfare decision for AW, the Justices found that although the parents had begun to make various changes to the way in which they ordered their lives and were to be commended for that, the improvements were in their infancy and would need to be consolidated. It was said by the professional witnesses that AW’s timescales were such that she needed permanency imminently so as to safeguard her present and future welfare needs. The Justices agreed with the experts that any changes the parents may have made had not then stood the test of time; and there was a requirement for about two years of therapeutic work which was outside AW’s timescales. She needed to be placed, without delay, in an adoptive placement.

Care and placement orders were made against an evidential background which included information about an already identified prospective adoptive family. AW was to have been presented to the local authority’s matching panel in October. There was a plan for reducing and then a final contact visit prior to AW’s placement within her adoptive family.

The plans for an early placement did not materialise. AW continued to live with her short term foster parents.

In late November 2012, the parents lodged a Notice of Appeal against the Justices’ orders asserting that the court had erred in its findings.

On 5^th December, Judge Atkins gave the parents leave to withdraw their application for leave to appeal out of time on the basis, as I understand it, of an indication that the appeal was misconceived and that the parents should apply instead for revocation of the placement order.

On 6^th December, the mother’s Solicitors promptly prepared, but did not issue, a Part 18 application for revocation.

On 7^th December, a letter was sent to the local authority’s legal team by the mother’s Solicitors notifying and serving upon them the mother’s application for revocation of the care and placement orders.

Further letters followed from the mother’s Solicitors repeatedly drawing attention to their client’s ambitions and seeking a reasoned response to the application for revocation (7^th January, 2^nd February, 15^th February, 12^th March and finally 23^rd March in which it was said this was “the fourth time … this information (had been) requested..”).

On 2^nd April 2013, the Adoption Matching Panel met and approved Mr and Mrs A as suitable adoptive parents for AW. The Panel Minutes reflect that “both parents are aware AW’s placement is imminent. They have lodged an application with their Solicitor to have the care and placement order discharged…. The current plan is for introductions to start on 11^th April but it is hoped to bring this forward… AW is subject to a care order and a placement order. It is unlikely once AW is in placement that the birth parents’ application to have the … orders discharged would be successful.”

On 4^th April, the local authority’s Solicitor wrote to the mother’s legal team saying that AW had been “matched with adopters on Tuesday this week and introductions started today with a view to her being placed next Thursday.” That same day, the Agency Decision Maker signed approval.

On 8^th April, the parents’ Part 18, application for revocation of the placement order was sealed. The following day, Tuesday 9^th April, the mother’s Solicitor sent a fax to the local authority confirming that the revocation application had been submitted and asking that AW should not be placed until the outcome of the hearing.

On 15^th April, the local authority’s Solicitor wrote saying she had informed the parents’ Solicitors on the 9^th April that the child was due to be placed for adoption on Thursday 11^th April. However, the letter went on, “we informed you on 10^th April that the child was placed on that morning.”

On 18^th April 2013, the South London Family Proceedings Court determined that there was no jurisdiction to proceed with the parents’ revocation application.

Small wonder, in the circumstances, that the parents planned (a ‘Letter before Claim’ was sent on 20^th May) and the local authority feared judicial review.

The only adequate response to those events was to enable a full hearing at the earliest opportunity to resolve the key question.

Before turning to the critical issues, it is right that I should relate the parents’ strength of feeling about AW and the heartfelt desire each of them has to see her reunited within their family. The mother said that AW is “her beautiful little princess. She is a very clever, happy, talkative, bright little girl; and (she) loves her dearly. She is playful, funny and brilliant.” She and the father love her just as they do MT.

The mother wishes for AW to be living with her, the father and their younger daughter, MT, so that they would be “a little family.” They have, she said, made their own family and she wants all the children to be raised together. If she does not win, then said the mother she “will keep on fighting for her.” She cannot bear the thought of losing AW – it “eats (her) up inside.” The father, very obviously, has identical feelings and shares the mother’s determination to see AW returned to them.

Both parents believe they could cope with three children. The mother said the children would be healthy, appointments would be kept, they would go to groups; the children would be clean and have all their ‘check-ups.’ She does not see “much difference between (them) raising three children to … raising one.” In similar vein, the father said they “could easily cope with three children.”

Now I move to consider the merits of the claims made by the parents and whether they have established, for the purposes of s.47(5) of the 2002 Act, that since the placement order was made there has been a change of circumstance of a nature and degree, sufficient on the facts, to open the door to the exercise of judicial discretion.

I bear in mind as I ponder that question that wherever possible, consistent with their welfare needs, children deserve an upbringing within their natural families (Re KD [1988] AC 806; Re W [1993] 2FLR 625) and also that care plans for adoption are “very extreme” only made when “necessary” for the protection of the children’s interests, which means “when nothing else will do”, “when all else fails.” Adoption “should only be contemplated as a last resort” (Re B [2013] UKSC 33; Re P (a child) EWCA Civ 963; Re G (a child) EWCA Civ 965).

There were, it should be said, signs that both parents were apparently intent upon making what seemed to be significant changes in the period preceding and since final orders were made in relation to AW.

By the time of the September hearing, it was believed that they had engaged and were communicating well with social services. Tangible signs of change were reflected in the way they interacted with AW at contact and their attendance was consistent. The quality of contact was assessed as having been exceptionally good.

Since the September hearing, the parents appeared to be continuing, in various ways, to make progress and improvements in their functioning. There has been almost no concern about the well being of their daughter MT who has lived with them throughout her life. Although initially subject to a child protection plan under the category of ‘neglect,’ MT’s name was removed from the register on 22^nd May this year. MT is making very good progress under a Child in Need plan. Her health and developmental requirements are being met. The home environment is clean, safe and secure. Both parents have attended core group and review meetings. It was thought they had been fully engaged with professionals – doctors, the midwife and social workers.

At the review meeting in June 2013, MT was described as a very healthy and well looked after child.

The father has completed both a domestic violence and also an anger management course.

The mother engaged in some counselling with three different agencies. Her mental health had been assessed by Dr Seneviratne, consultant adult and perinatal psychiatrist, as stable with no emotional instability. For about four months last year, the mother had been attending a particular project for people with personality difficulties and emotional instability. Since June 2012, she had been going to another agency for group therapy; and she was also seeing a drug support worker every week for substance misuse work.

The parents had also enrolled and did attend at parenting classes which began in September 2012. During October and November last year, the mother attended for assessment and then two appointments for one to one therapy with a Youth Counselling Service.

The situation now, it has to be said, is rather different. The mother withdrew from engagement with the project after about four months in October 2012. Her participation in group therapy also came to an end in October. Her one-to-one sessions likewise concluded in November. Asked in evidence about her reasons for stopping the psychological work, the mother said she had “felt (she) was doing so well.” She didn’t think she had a personality disorder any more and did not need to be going on a weekly basis. Moreover, she had been told by social services to “take 6 to 8 weeks off from everything” after MT was born. More generally, the mother said she did not feel the need to be amongst people at the group sessions who are suicidal.

The advice first given by Dr Seneviratne in October 2012 was that the mother should continue with psychological work; and it was on that basis she was able to recommend there should be a parenting assessment in relation to the unborn baby, MT. Moreover, her more recent advice is that that the mother “should continue to have psychological work to help with her underlying personality difficulties so that she can continue to be stable in her mental health, understand the triggers to her difficulties and continue to develop healthy coping mechanisms.” Dr Seneviratne recommends that the mother should continue with the Sun Project and also suggested Dialectical Behavioural Therapy … “for at least a year to effect and maintain change.”

Against that background of what the mother herself regards as wise advice, it is dispiriting to note how participation in psychological work dropped away and has not been resumed even although the local authority’s clear expectation was that when MT was about two months old, the mother would return to counselling sessions. The mother said the project was “always there” for her and “open to (her) whenever (she) needed it.” She would go back if someone gave her an actual time and said she should keep to a schedule.

During his evidence, the father said that since Monday of this week, he and the mother had started again to do all the things in which they had been involved before. But in relation to the mother’s mental health, he said, “she copes really well; she has strategies; she will walk outside and get some fresh air for five minutes and … then she is fine.”

There were other, albeit slight, decreases in the parents’ compliance with the Child in Need plan as discussed with them at a meeting on 6^th June. There had not been a medical check for MT since her name had been taken off the Child Protection Register and she had not been taken to a clinic appointment, though those omissions were remedied fairly swiftly. The parents were no longer attending any play groups with MT. The father had ceased to go to the ‘Dad’s Group’ and had only been to one of four meetings.

As Ms Wofford, manager of the local authority’s Looked After Service, said in evidence, although these might look like “little drops” the department had been concerned that they were seeing only veiled compliance. “Was this real?” Ms Wofford asked rhetorically, “Was this internalised, were they (the parents) really moving forward?”

Overall, in relation to those areas already mentioned, I would have to conclude that although there were some positive signs of the potential for emerging change, the broad picture would not have substantiated a conclusion that such improvements as there had been were of a nature and degree sufficient in this case to open the door to the exercise of judicial discretion.

But there is, of course, more that has to be said about the issue of change in circumstance. I refer to the parents’ decision – as they have each conceded it was – to deliberately seek to conceal the mother’s current pregnancy from their own lawyers, the social work team, Ms Newton the children’s guardian and me. Each parent recognises now what a serious mistake it was to try to keep such important information secret. Each knows of its likely impact upon their claim to have a chance of opposing AW’s adoption. The mother said she was “terrified”; she was not “going to try to say (she) was in the right” but she had wanted AW to come to her and thus had not told the authorities.

The mother had intended to come to court this week and pretend she was not pregnant. She said it was one of the biggest mistakes she had made and she is “disgusted” with herself. The father, said the mother, had not agreed with her but she had asked him not to mention the pregnancy. All the mother had wanted was for AW to return to her care.

The father’s evidence was to the same effect. He said they had tried to hide the pregnancy because they had known there would be an impact for AW. They had thought the only thing to do was “lie to the court.” It had been a hard decision whether to have an abortion or not. They had to decide between AW and the unborn child; did not want to abort and had therefore decided to conceal the pregnancy.

The concealment, represents in the clearest way possible, how in truth there has been no change at all in the parents’ ability to work openly, honestly and in a transparent way with the local authority. Some things may have appeared to be different but recent events demonstrate that, in essence, the parents remain the same. The relationship of trust and mutual respect which the social workers believed they had successfully built with the parents was, in truth, erected on the weakest of foundations.

Inevitably, and very properly, comparisons are drawn between this concealed pregnancy and the events of June 2011 and December 2011 when the parents avoided attending at court at all so as to conceal the pregnancy with AW. After she was born, they went to enormous lengths to keep her existence a secret for more than three months.

I cannot avoid finding that the first hurdle – establishing the necessary change of circumstances – has not been achieved and by a very wide margin. I am impelled to say the evidence comes nowhere close to satisfying me there has been change of a nature and degree sufficient on the facts to open the door to the exercise of judicial discretion.

The sadness is that the parents could not have been more fortunate in the standard of social work provided to them by the local authority. Ms Wofford has managed the team. She has supervised two junior and one student social worker and has had what she described as “tight management” of the cases involving AW as well as MT. Ms Wofford described how she personally has met with the parents and believed she had a “good, open and honest relationship” with both of them.

In relation to their care of MT, she had sat down with the parents, had very long conversations. She had talked about how the department had been willing to take a chance and how the team had had to “fight quite hard” to enable MT to remain with her parents.

Now, said Ms Wofford, she was concerned the team had “called it wrong” for MT. All the apparent progress was in question. She struggled, she said, to understand the parents when they’d said in evidence they were frightened to reveal the pregnancy. She had spent more time with these parents than with others and knows the conversations she’s had with them. She has been clear that she has been willing to work with and has had a desire for them to be “good, healthy parents.” Ms Wofford can speak to the experience they have had from her team. There has been “honesty and integrity” from the social workers – Juliana, Maria and Rose – so that Ms Wofford is disappointed the parents could not bring (the fact of the pregnancy) to them. She thought the parents had taken lessons on board so that whilst she understands their “extreme motivator” she is having a “hard time holding it.” Her disappointment, she explained, is for the parents because of some of the progress she had thought was there. Then, addressing the parents directly, Ms Wofford said, “Boy I am disappointed in and with you!”

I was enormously impressed by Ms Wofford not only for the supremely thoughtful, focused and fluent way in which she gave her evidence but also for her obvious humanity and compassion. She has, as she said, had some very “difficult conversations” with the parents about the plans for AW. The mother has made it plain she would challenge the local authority “every step of the way”. Ms Wofford had been very clear with the parents that in her view, it was too late for AW, the risks too high and the parents’ situation too fragile.

The parents were fortunate to find themselves as part of the caseload for which Ms Wofford held managerial responsibility. Moreover, she managed not from afar or ‘on high’ but at the forefront of her team. The parents had the benefit of her wise judgment, her proper encouragement, her honesty and integrity in keeping them informed as to what was expected of them under the various plans as they developed for AW and MT. The parents could not, in my judgment, have had better quality social work; and therefore it is extremely disappointing that they have failed to achieve even basic honesty in their dealings with the local authority.

Finally, in relation to Ms Wofford, I should say that she provided expert evidence of the highest calibre. And one of the reasons she was able to do so was because she knows these parents extremely well as the result of her ‘hands on’ involvement. Moreover, she was supremely well able to articulate her thoughts and opinions in a way which many other professional witnesses, including experts with a capital E, would struggle to match.

I turn then to consider the second limb of the process, the exercise of discretion. I do so for the sake of completeness and even although I have found emphatically against the parents in relation to sufficiency of change.

The discretionary exercise depends upon a consideration of AW’s welfare needs informed by the checklist factors set out within s.1(4) of the 2002 Act. It is trite to say that my paramount consideration must be AW’s welfare throughout her life.

AW’s needs are those of any child who has had a disrupted start in life, a history of being removed from her family to foster parents and thence to what was believed to be her permanent home. AW needs security, stability, consistency and predictability. Her physical, emotional and developmental requirements should be met by individuals who are not only attuned to her but also have the opportunity to expend considerable energy in ensuring she thrives.

AW is the only child within the home of Mr and Mrs A. She has made a very pleasing attachment to them as the result of the good connections earlier made with her ‘short term’ foster parents. Ms Newton, who has seen AW within her current home, in the company of both prospective adopters, reports her as already being “their child.” When Mr A and Ms Newton entered the house together, AW’s face had lit up, she jumped off a chair, rushed towards him saying, ‘Daddy, Daddy.’ AW, said Ms Newton, is very comfortable with Mr and Mrs A. They know her very well; she will seek out each of them for different tasks; she gets very good attention, one-to-one, and thus she has been able to attach very easily.

AW’s overwhelming need is to be able to continue to live in the home of Mr and Mrs A as a permanent member of their family, to consolidate the progress she has already so pleasingly made and, in due course, to be adopted by them.

The likely effects upon AW, throughout her life, of ceasing to be a member of her original family and having become an adopted person are that she will lose her links with her natural parents, her younger sibling MT and will not have a relationship with the baby, another full sibling, who – all being well – will be born in late October.

There is no denying that for AW it will be necessary to sensitively and age appropriately explain her ‘life story’ placing proper emphasis upon her parents’ strong and heartfelt desire to have her restored to them. She will know, as she grows and at suitable intervals, just how much her mother and father love and cherish her as well as how hard they fought to stop the adoption process.

AW will also come to understand that her place within the home of Mr and Mrs A is utterly secure and that nothing will happen so as to unsettle her placement with them. She will come to realise how she was specially chosen by them to be their adopted daughter; that they are fully committed to her and will be throughout the whole of her life.

AW will be two years old next week. Little more needs to be said about her background than already emerges from the chronology. She has already had a series of moves. Throughout her time with foster parents and until 8^th April this year, AW saw her parents at contact. Between September and April, she was enabled to adjust to a reducing relationship with her mother and father. Now, since her placement with Mr and Mrs A, she is with the couple who are intended to be her adoptive family.

She is putting down roots, treating Mr and Mrs A as her parents and they see her as their child. It is a measure of their empathy and determination to ‘do the right thing’ by AW that if I had decided to set about a process of reversing the process towards eventual adoption, they would have been prepared to keep her within their home rather than see her moved into a foster placement. All the signs are that AW has been quite exceptionally fortunate to find herself with such a superlative couple.

I turn to consider any harm which AW would be at risk of suffering. She is, according to Ms Newton, an adorable, easy going child. Ms Newton has 110% sympathy for the parents and agreed that the mother does understand it would be difficult for AW to be moved again. Ms Newton believes the mother’s focus has been upon herself rather than AW; and I would have to say I agree with that assessment in relation to both parents.

Ms Newton has balanced the various competing factors – that when she is 13 or 14, AW may have a real desire to know where she comes from (and why she did not grow up with her natural family) against her worry that if AW is moved again she may end up as a “very disturbed child” because of her multiple changes of placement. Ms Newton’s view is that it would “just not be fair” to put AW through the disruption of a further move and assesses the chances of a negative outcome at 50:50 if she is returned to her parents.

With the greatest of respect to Ms Newton, who is both immensely experienced and extremely wise in all things associated with children’s development, I feel constrained to voice my disagreement with her assessment of the probabilities. If eventually, at the end of a contested adoption hearing, AW were to be moved back to her parents she would be faced with the most demanding of circumstances. From being an only child with no competition from others for the attention of her ‘parents,’ she would be the oldest of a group of three. MT is 15 months younger; the new baby will be two years and two months younger than AW. Any consideration of that situation would cause an outsider to have enormous fears for AW’s emotional wellbeing given her history, unable as she would be to make sense of what was happening and why. Moreover, she would be looked after by a young couple whose resilience and capabilities, thus far, have been untested save in relation to one still very young baby, MT.

I doubt very much, however innately amenable she is, AW would be able to cope with a fourth move without incurring very significant harm to her emotional and psychological development. In her welfare interests, I could not expose AW to that risk.

The last matter for discussion is the relationship AW has with relatives and with any other person in relation to whom the relationship is considered relevant including (i) the likelihood of any such relationship continuing and the value to her of its doing so; (ii) the ability of and willingness of her relatives, or any such person, to provide AW with a secure environment … and otherwise to meet her needs; and (iii) the wishes and feelings of any of AW’s relatives, or of any such person, regarding the child.

I have said enough already for it to be plain that AW’s overriding need is to remain with Mr and Mrs A on the basis that she will become their adopted child. Her welfare demands that the relationship she had with her parents should be brought to an end by the making of an adoption order. Her parents are unable to provide AW with the secure environment she deserves. Any process of assessing the potential for AW to be reunited with them would be wholly outside acceptable time limits from AW’s perspective.

Mr and Mrs A very firmly wish to adopt AW. With equal emphasis, the parents resist. Their consent to a placement order was dispensed with by the Justices at the hearing in September last year on the basis that her welfare demanded she be placed without delay within an alternative permanent home.

The wishes and feelings of the two opposed couples are irreconcilable. In AW’s interests I cannot do other than deny the parents their desires and uphold those of Mr and Mrs A. The application for leave to oppose the adoption of AW is refused.