IN THE FAMILY COURT AT [TOWN STATED]
[Court stated]
B E F O R E:
THE HONOURABLE MR JUSTICE BODEY
Re W
Ms Randhawa for the Local Authority
Mr Todd for the proposed adopters
Ms Ward for the paternal grandparents
Mr Ainsley for the Children's Guardian
JUDGMENT
MR JUSTICE BODEY:
INTRODUCTORY
The decision required in this case will inevitably cause great pain and heartache to one or other of two families who are in no way responsible for the situation in which they find themselves. This is something of which I am acutely conscious but for which there is, unhappily, no solution. The case has correctly been described by one of the experts as ‘tragic’ and as ‘very distressing’. It requires, in the perhaps overused phrase, something of a judgement of Solomon.
The child at the centre of the case is a little girl A who was born on the 1 st May 2014 and is now therefore two. She lives with a couple who have called themselves “Mr and Mrs X” (which I will continue to call them) who are the proposed adopters. She has lived with them since 5 th December 2014, a period of some 17 months and is thriving with them. Their application is for an adoption order which they earnestly hope to achieve at this hearing. It is, however, opposed by A’s paternal grandparents who wish to care for A within her extended family. They seek either a Special Guardianship order or a Child Arrangements order granting them residence. I will explain shortly how this unhappy situation has arisen.
The parties before the court have been represented at this hearing as follows: the Council (“the local authority”) by Ms Randhawa; Mr and Mrs X by Mr Todd; Mrs G and Mr G (“the paternal grandparents” or “the grandparents”) by Ms Ward; and A’s children’s guardian, by Mr Ainsley. I am grateful to them for the sensitive way in which they have conducted this matter. I have read and re-read their written submissions; my notes of their oral submissions; the full court bundle of documents; my notes of the oral evidence and the authorities to which I have been referred. I heard oral evidence from Pauline Fairbairn (independent social worker); Beth Miller (Special Guardianship reporter); the paternal grandmother; and the children’s guardian. I have also reminded myself of the relevant provisions of the Adoption and Children Act 2002 (“the Act”). The underlying question is whether it would better serve the interests of A’s welfare throughout her life to remain within the family of Mr and Mrs X and be adopted by them, or to be removed from them now and be united with her extended birth family? At the present time, for reasons to which I will come, she knows only the family of Mr and Mrs X and has never met the paternal grandparents, nor any other member of the extended family of her birth. Her natural parents I should add have never engaged in her life and play no part in these proceedings.
On the 21 st December 2015 the circuit judge who has case managed this case granted the paternal grandparents:
permission to oppose the adoption application under S47(5) of the adoption of the Act and
permission to apply for a Special Guardianship order or a Child Arrangements order.
It is agreed that the first of these permissions got into the order by mistake because S47(5) of the Act (enabling opposition to the making of an adoption order on the basis of changed circumstances) applies only to a parent or guardian. However it is sensibly and pragmatically accepted all round that, since the grandparents have permission to apply for a Special Guardianship order or a Child Arrangements order, the court will have to decide which of the two ‘competing’ families should bring A up; and therefore whether it would be ‘better’ for her under S1(6) of the Act that the court should make an adoption order or not do so. No technical point therefore arises on the proper constitution of these proceedings and the decision which falls to be made is simply (although it is not simple) a welfare based one.
BACKGROUND
The mother of A is ‘S’ who was born on the 11 th October 1986 and is therefore 29. She is considered to be learning disabled although she has never submitted to any formal assessment. The father of A is ‘L’ who was born on 29 th August 1975 and is therefore aged 40. He is the eldest son of the paternal grandparents. He is learning disabled and has an IQ of below 60 meaning that he has significant cognitive disabilities. He has an apparent history of violence within relationships and has been in trouble with the Police, including for disorderly behaviour, battery, theft and assault.
S and L have been in a relationship for about four years. They have had two other children who are younger than A. Their second child is E who was born on [date] June 2015. They have never cared for him. On 3 rd July 2015 he was placed with the paternal grandparents and has remained with them to date. At birth or soon after he was found to have a serious medical problem, which required an operation and which the grandparents saw him through. S and L’s third child is F who was born very recently on 17 th April 2016. Again L and S have never cared for him. He is placed by the Local Authority under an interim care order with one of L’s sisters whom I will mention shortly. Turning to the paternal grandparents, Mrs G is aged almost 58 and Mr G is 59. They were married in the 1970s and remained together in what is clearly on all the evidence a very stable and enduring marriage. Mrs G has six older siblings, some of whom have children who also have children. Mr G has an elder sister who has two daughters, both of whom have children.
Turning to the paternal grandparents’ own children, their eldest is L (father of A, E and F). Their second is a daughter who is in her late 30s and has one teenage son. There is then a son in his early 30s who has one teenage son. Next comes a daughter Z in her late 20s who has two children, aged 7 and aged 5. Last there is a son who is in his mid 20s. He has by his first partner a child aged 7 and by his current partner, a child aged 2 (a few weeks older than A herself).
As regards Z, I need to mention one thing merely for completeness. In 1999 when L was 24 and had moved out of the paternal grandparents’ home, there was an occasion when she, Z, aged 11 went to L’s accommodation and he sexually assaulted her. On returning home she told her parents (the paternal grandparents) what had happened. They promptly reported the matter to the Police and L was arrested but not, in the event, charged. It is Z with whom S and L’s third child F has recently been placed following his birth in April 2016. She, Z, and her husband hope to be able to bring him up as part of their family with their own two children.
As far as Mr and Mrs X are concerned, they too have a large extended family to whom A is very close and with whom she has bonded. I do not have the same amount of detail about their family as I do about the paternal grandparents’ family (probably because of the information required for the Special Guardianship report). In Mr and Mrs X’s statement, they mention grandparents who live close by and cousins for A ranging from 17 down to 3 ‘all of whom worship her and have had regular contact with her’. So they too, like the paternal grandparents, have a large extended family.
A was born as I have said on 1 st May 2014. A police protection order was made almost immediately in the light of L’s inappropriately controlling behaviour on the hospital ward. This led to an interim care order being made in respect of A on 2 nd May 2014, whereupon she was placed in foster care (not at that stage with Mr and Mrs X). S and L had contact with A twice in May 2014 but then never turned up for contact again. They disengaged from the care proceedings relating to A and went missing. In spite of its efforts, the Local Authority was unable to find them in order to make enquiries about extended family members who might be able to care for A. They tried to engage S’s mother, the maternal grandmother, without success and it is further recorded that L told them, the Local Authority, that the paternal grandparents lived in [a town], whereas they lived and do live [elsewhere].
The unsurprising consequence was that the Local Authority progressed the care proceedings relating to A on the basis of a final care plan for permanence by way of adoption. The final hearing came before the District Judge on 21 st October 2014. In a short judgment he recorded the ‘considerable efforts’ made by the Local Authority to locate A’s parents, S and L, which had proved unsuccessful. There being no known family members to care for A, he made a care order and a placement order.
A few months later on 5 th December 2014, A, then aged 7 months, was moved from the foster placement where she had been placed at birth to Mr and Mrs X with whom she is still living. They have therefore been caring for her under the placement order for some 17 months. Their adoption application was lodged in June 2015.
On [date] June 2015, E was born. The relevant Local Authority [not this Local Authority]made the usual enquiries to see if there were any extended family members who could care for him, since it must have appeared unlikely that L and S would be able to do so. It was in this way that a social worker came to know of the existence of the paternal grandparents and arranged to meet or telephone them. In the process of discussing E with them, she mentioned E’s older sister A. This was the very first time that the paternal grandparents had ever heard of A’s existence. They had not even known that S had been pregnant, since they were not in touch with their son L at that time. They described themselves as devastated to learn that they had a granddaughter who was the subject of pending adoption proceedings. They took legal advice and determined to try to have A live with them if that could be achieved.
On 2 nd July 2015, the circuit judge managing this case had listed before him a directions hearing in the adoption application made by or on behalf of Mr and Mrs X in respect of A. Counsel for L, the father (although not L himself) and the paternal grandmother acting in person attended. They made known to the court and all parties that it was the wish of the paternal grandparents to care for A and so to oppose an adoption order being made in favour of Mr and Mrs X. At this stage A had been with Mr and Mrs X for some 7 months. Various directions were made with a further directions hearing a fortnight later on 16 th July 2015. Subsequently, the paternal grandparents issued a notice of application for a Child Arrangements order in respect of A (seeking residence of her) which has since ‘morphed’ into an alternative application for a Special Guardianship order. On the 29 th September 2015, a Children’s Guardian was appointed for A.
On 16 th October 2015, following a favourable Special Guardianship report, the paternal grandparents were granted a Special Guardianship order in respect of E. His position is therefore secure with them and there is no doubt that he is thriving in their care.
On 21 st December 2015, as already mentioned, directions were given by the case management judge granting the paternal grandparents permission to apply for a Special Guardianship order or a Child Arrangements order. Permission was granted to the Local Authority to instruct an independent social worker, Pauline Fairbairn, to report on a number of agreed questions. A Special Guardianship report was also directed. The final hearing about A’s future was set down before Mr Justice Cobb in March 2016. However that hearing had to be adjourned owing to the illness of the children’s guardian, hence it has come on before me on 26 th April 2016. A few days beforehand, F was born and as I have said has now been placed with his Aunt Z.
THE EXPERT EVIDENCE
There is a fair body of expert evidence which ideally needs to be read in full, as it is quite difficult to summarise. However I will try to do so.
Mrs Pauline Fairbairn, Independent Social Worker
Mrs Fairbairn’s CV embraces over 40 years of her professional experience in social work including in fostering and adoption. She has been a CAFCASS Children’s Guardian. Last year in her current role as an independent social worker, she completed 47 assessments. She gives each of the paternal grandparents a glowing report when assessing their parenting capacity. She discusses the grandmother’s health which has raised questions at this hearing and to which I will revert at part D below.
As part of her enquiries, Mrs Fairbairn discussed the case with other professionals who have been involved with the paternal grandparents’ family. She spoke in particular to Deidre Ryan, A’s social worker in the care and placement proceedings ending with the placement order regarding A made on 21 st October 2014. They agreed with each other that there is here a loving extended birth family prepared to care for A and that, although there would be the detriment of removing her from Mr and Mrs X, the only parents she knows, there could be no justification for her to be adopted outside of her natural family.
Mrs Fairbairn had a similar conversation with the children’s guardian, including their sharing the opinion that the grandparents would be able to care for two young children (A and E) given the level of family support and commitment which they would have. Mrs Fairbairn and the Children's Guardian agreed with each other that the close attachment formed by A with Mr and Mrs X would help her to form close attachments with the paternal grandparents if this should be the court’s decision.
Mrs Fairbairn also spoke by telephone to E’s social worker, Susan Stewart, who was responsible for him during the Special Guardianship proceedings which culminated on 16 th October 2015 with the Special Guardianship order in favour of the paternal grandparents. Ms Stewart confirmed that E is thriving in the grandparents’ care and stated her opinion that A would receive an equally high standard of care, particularly as there would be ‘very high levels of family support’. She mentioned that both E’s paternal aunts mentioned above had attended at a recent Looked After Children Review in respect of E and she confirmed that they are ‘actively involved in E’s life’.
Last, in terms of obtaining the opinions of other professionals, Mrs Fairbairn spoke to E’s health visitor, Doreen Cothay. She, Ms Cothay, described the grandparents’ family as ‘very close-knit, kind and loving’. She reported having ‘absolutely no concerns’ about E and said that he was thriving in their care. She described the grandmother as having ‘endless patience’ and said that she had seen nothing to suggest that the grandmother’s depression (see below) had impacted on her ability to care for E. She said that the grandmother is a person who likes to be busy and expressed the opinion that ‘they would manage to give both E and A, a high level of parenting, particularly as the two paternal aunts would be actively involved in supporting them’. She felt confident that the grandmother would ask for help if she needed it, stating that the family are ‘very close and very supportive’ and that the aunts ‘play an important role in E’s life’.
Mrs Fairbairn visited Mr and Mrs X and saw them with A. She describes A as ‘a delightful, happy, secure child who related to both parents (Mr and Mrs X) equally’. She records that A clearly shares ‘a close, loving relationship with both of them and that there was no doubt of their love for her’. They referred to A as ‘the centre of their world’ and were clearly devastated at the possibility that they might have to give her up. They told Mrs Fairbairn that they felt it would be extremely distressing for A to be removed from their care since she had grown up to know them as her parents. In the concluding pages of her report, Mrs Fairbairn describes this as ‘an extremely sad case’ and acknowledges that A currently presents as a happy, secure child with her ‘mummy and daddy’. She refers, again, to the fact of A’s close attachments with Mr and Mrs X as enabling her to form other close attachments with the extended birth family, (although I know this not to be the universally held opinion of experts).
Mrs Fairbairn continues at paragraph 12.17 of her report, second sentence:
“… it is my opinion that despite the level of distress that A will suffer in the short term her long term interests would be met by knowing that she was not rejected by her family and that, even though her own parents were unable to care for her, she was able to remain a child of the family for the remainder of her childhood and into adulthood, when her [own] children will also have a family identity. It is therefore my view that A should be removed from her prospective adopters and moved to the care of her grandparents.”
At paragraph 12.20 of her report, Mrs Fairbairn acknowledges the feelings of separation and loss which A would feel and discusses aspects of A’s development thus far where there would be likely to be a regression in terms of the most recently acquired skills, but such regression being ‘only likely to last a few months’. At paragraph 12.25 Mrs Fairbairn concludes as follows:
“… clearly the prospective adopters and their respective families will be devastated by any decision to remove A from their care and A will feel loss and separation for a period of time, but I feel confident that she will soon form close attachments to her loving family with whom she has a basic right to be brought up.”
In her oral evidence Mrs Fairbairn confirmed these views, including in the light of Mr Richardson’s statement (see below). She agreed with Mr Todd that A would suffer ‘a bereavement’ which would have a significant effects ‘initially’ (Mrs Fairbairn’s word). She told Mr Todd that moving young children is an area in which she has experience, expressing the view again that A’s strong current attachments will make it more likely that she will attach again on moving on. She emphasised her concern that, if adopted then when she grew older, A would suffer from knowing that she had been denied a childhood with her two siblings E and F. She accepted that because of A’s sense of loss, she would or could regress ‘temporarily’ (again, Mrs Fairbairn’s word). Whilst acknowledging that the removal of children from foster care is different in kind from removal from proposed adopters (as here), she made the point that such children removed from foster care settled surprisingly quickly. She did not think that the paternal grandparents would have difficulty dealing with such things as A’s crying, bedwetting, tantrums or not eating. She added that “… it always amazes me how quickly children settle in and how resilient they are …” ( although she stressed that in so saying she was not seeking to detract from how difficult A would find the removal from Mr and Mrs X). Asked by Mr Ainsley if A’s upset and unsettlement would last ‘for weeks, months or years’, Mrs Fairbairn answered with words to the effect: “… more months than years.” She said:
“… I do think she would be unsettled, but not for long.”
Mrs Fairbairn told me that she is 100% confident that A would settle in the extended birth family, confirming how very impressed she was with the family. She did not think that there was a risk of a transfer of A going so badly wrong that it would need to be reconsidered. It would in her opinion be ‘devastating’ for A to realise later in her life that her siblings had been allowed to live in the birth family when she had been denied this.
Beth Miller, Special Guardianship Reporter
26. Ms Miller, social worker, has assessed the paternal grandparents as proposed Special Guardians for A. Because the format of the report required her to consider the relative merits of Special Guardianship and of other possible orders, she was drawn into reaching some sort of conclusion about A’s welfare, although she never met Mr and Mrs X, as that was not part of her remit.
27. Ms Miller’s report on the paternal grandparents is very positive. She describes them as working ‘very much as a team’ with Mr G being ‘a hands-on dad and grandad’. Again, I will come back to the question of the paternal grandmother’s health below. Ms Miller discussed with both the paternal aunts their taking over A’s care if it were necessary and says she is ‘confident that this is something they are completely committed to’ and would do ‘wholeheartedly and unconditionally’. She describes the grandparents as having regular contact with all their children (except L) and grandchildren, stating that the grandmother’s interactions with E which she, Ms Miller, observed were ‘indicative of someone who is comfortable around very young children and at ease in their presence’. They have ‘high levels of involvement in the care of their grandchildren including overnight stays’.
28. Ms Miller obtained glowing reports from Susan Stewart and Doreen Cothay, as Mrs Fairbairn had done, with E being referred to as a happy and contented little boy, meeting all his developmental milestones. Ms Miller describes the grandparents as recognising the potential risk which S and L might pose to E and A and reports that they would be vigilant about ensuring their safety, if there were to be any future contact. She expresses confidence that they would not allow either parent unsupervised contact. She records having observed the emotional warmth shown to E by the grandparents and says they speak of their grandchildren in a supportive and caring manner. They refer to their son L with great sadness and heaviness of heart, often wondering what went wrong and what they may have done wrong.
29. Ms Miller records in detail the favourable comments of the grandparents’ three referees. I merely extract a few of the referees’ comments. The grandmother is described as ‘strong and determined’; the grandfather as ‘placid and patient’; and S is described as ‘a lost soul, whose learning difficulties have resulted in his inability to show care and consideration for others’
One referee is recorded by Ms Miller as saying that:
“… they are not going to have the energy of a 20 year old couple and it would be silly to say they had. However they have knowledge, skill and experience and there are plenty of others in the family to do the physical stuff, such as swimming, running around a football pitch and such like. Mr G is very fit and walks for miles with E in the pram, regularly going to the gym.”
(Mr G goes to the gym three times a week with one of his sons). A former work colleague of Mrs G, the grandmother, told Ms Miller of the strength of the grandparents’ family support, especially from the paternal aunts ‘… who are always in and out of their house’. The grandmother is described by that referee as ‘a very strong woman, but one who would say if she was struggling and would ask for support’. As a couple they are described as having a ‘can do attitude’.
30. Ms Miller observed E with both of his grandparents and with both his paternal aunts. She says there is no doubt that he is dearly loved by them. She expresses ‘every reason to believe’ that in time A would be able to make attachments with the paternal grandparents, given the positive attachments she has formed with Mr and Mrs X. She records the grandparents as saying that they would welcome contact from A’s maternal relatives, but for which they feel that there would be a big gap in A’s family history. In her closing paragraphs Ms Miller concludes that ‘there is no evidence to indicate that a Special Guardianship order should not be made’. Cancelling out that double negative, she told me that this amounts to her support for a Special Guardianship order being made to the paternal grandparents.
31. In her oral evidence Ms Miller accepted that E was not yet ‘mobile’ when she saw him with the paternal grandparents. She did not consider that two young children (A and E) would be too much for the grandparents, since she told me she had raised this issue with Ms Cothay, Ms Stewart and Mr Mills (who undertook a Special Guardianship report in respect of E) none of whom had anything adverse to say about the grandparents’ capacity to care for two small children.
Paul Richardson, Social Worker to Mr and Mrs X
32. Mr Richardson is a social worker of 12 years experience who is allocated to and supports Mr and Mrs X. Eight years of his professional career has been in fostering and adoption. He has worked with Mr and Mrs X since July 2013, supporting them and the placement by way of regular visits since A was placed with them in December 2014. He highlights their complete emotional investment in A from the outset and their unconditional love and acceptance of her. Strong bonds have been formed between them and her. She was moved to them (December 2014) from excellent foster carers and has been throughout an only child both in that foster placement and now with Mr and Mrs X. He considers that A has gone ‘far beyond the levels of normal care and attachment experiences in a foster placement, to the significantly higher levels of care and attachment with reciprocal, emotional interactions with Mr and Mrs X’. He says he regards the proposition that A’s attachments can be ‘transferred between carers’ (as he puts it) as too simplistic ‘and not applicable to this case’. He expresses very deep concern about the distress which would be caused to A at having to be handed over by Mr and Mrs X, which he considers would leave her (A) extremely anxious and traumatised. She would in his opinion suffer ‘a severe and intense bereavement with the loss of her primary care givers’.
33. In his oral evidence, Mr Richardson went through how a transfer would be carried out if that were to be the decision of the court. Typically it would be completed within seven days or less, lest the child should become confused and the emotional stress become too much for the carers. There is no need to set out the various steps in such a transfer here, as they would depend in any event on how things went in practice. Mr Richardson sees particular difficulty in the adopters being emotionally unable to give their ‘approval’ to A moving, such emotional ‘approval’ being a very important part of the process. He recorded that Mr and Mrs X have said that they would do their best to assist in the transfer of A (if this were the court’s decision) but he did not know if they would have the emotional strength to do so.
34. In cross-examination by Ms Ward, Mr Richardson agreed that his statement was not intended to look at all the options for A. He accepted that, quite understandably, he sees the case from only one perspective. He agreed too that it is his task to support the adopters (Mr and Mrs X) and not his role to consider any of the longer term benefits of a move. He accepted from Ms Ward in cross-examination that the good care which A has received to date is positive as regards a possible move. However he thought that a transfer would be ‘fraught with difficulties’, since A would see the anguish of Mr and Mrs X every day until she actually moved to the grandparents. He has seen A about every four to six weeks and has noted that her idea of ‘mum and dad’ is becoming more focused.
35. Mr Richardson accepted in cross-examination by Mr Ainsley that he himself could do the necessary work in a transfer process, saying:
“… I would do anything necessary to make it work. It is all about A. She knows who I am and she interacts with me.” – (or to that effect).
He confirmed that he knows well A’s social worker Deirdre Riley. They have worked together many times on cases and he said he would have no difficulty working with her in this case if the court’s decision favoured the grandparents. In that event he said he would support Mr and Mrs X in their loss. He explained that potential adopters are warned that there is always the possibility, until the adoption order, of a natural family member coming forward and objecting to an adoption, but he made the fair point that adopters usually put this to the back of their minds.
The Children’s Guardian for A
36. The Children's Guardian has 22 years’ experience in social work, having qualified in 1994 and has spent some five years working in fostering and adoption. Following other roles with children within social work, she has been a CAFCASS children’s guardian for the last 10 years. She has similar work experience as Mr Richardson as regards fostering and adoption including the moving of children between carers.
37. The Children's Guardian accepts that A is settled with Mr and Mrs X, has established a close and loving attachment to them which is reciprocal and has made appropriate progress in all areas of her development. She accepts that A is thriving where she is and is in receipt of a high level of care. Nonetheless, she came to the conclusion in her report that the paternal grandparents could provide the necessary level of permanent care needed by A, where she could grow up with an awareness of her origins. She concluded that adoption would not be in A’s best interests and that she should be brought up by the grandparents within their extended family.
38. In her oral evidence, having read all the up-to-date information and heard the paternal grandmother regarding her (the grandmother’s) health, the Children's Guardian did not change her recommendation. She recognised that Mr and Mrs X would be devastated if A had to move. She stated that they had impressed on her their wish to do everything possible to help in such a move, although she thought that (understandably) they may not have the emotional resolve. Thus she considered it would be possible and necessary to use Mr Richardson’s existing relationship with A, such that he would be the facilitator (my word not hers) in the transfer process. She approved of the paternal families’ proposal that E should stay with one of the paternal aunts in the initial stages and only be reintroduced into the grandparents’ family home once A had become more settled.
39. Asked about her experience as to the likely duration of upset for A, the Children's Guardian described it as difficult to set a timescale, since all children and involved adults are different. She said words to the effect:
“… it’s certain that there will be a degree of disruption more intense in the early weeks; but after a period of months it will be less acute.”
She accepted that to start with A would be bewildered and completely confused. She would have to try to understand why her parents, Mr and Mrs X, would no longer be caring for her and this would have an effect on her. She agreed that the element of ‘permission’ from Mr and Mrs X might well be missing from the transfer process, but commented:
“… but we have to deal with realities. Children are often moved from their families when their carers find it impossible to give permission and we deal with what we have.” (or words to that effect).
She accepted in answer to Mr Todd that such moves are generally made because of the existence of unacceptable risks in the current placement, but she went on to say that many children being moved do not see it as such, their lifestyle involving such risks being the norm for them. She agreed that she had seen the paternal grandparents and their family twice but had only met the adopters once, namely earlier this month. She said she had been waiting before doing so to see whether leave would be granted to the paternal grandparents. In her last answer to Mr Todd, she repeated her opinion in her written report, namely that since the paternal grandparents can in her view meet A’s needs, adoption is not the best outcome for her.
THE GRANDMOTHER’S HEALTH
[In the next following paragraphs the Judge considered detailed aspects of the grandmother’s health, continuing]:
53. The conclusion which is apparent from these updated statements by Mrs Fairbairn and Ms Miller, taking account of the evidence which the grandmother gave about her health and mobility, is that they adhere to their original opinions about the outcome which will best serve A’s best interests throughout her life, namely a Special Guardianship order to the grandparents. I will state my own conclusion about the impact of the grandmother’s health and mobility on the issues before me under part E below.
DISCUSSION AND CONCLUSION
54. As I said earlier, the court’s paramount consideration under S1(2) of the Act is ‘the child’s welfare throughout her life’. In evaluating that welfare the court must have regard amongst other matters to those matters set out at S1(4). These are in brief summary: the child’s wishes and feelings; the child’s needs; the likely effect on the child throughout her life of having ceased to be a member of the original family and become an adopted person; the child’s age, sex, background and any relevant characteristics; and any harm which the child has suffered or is at risk of suffering. Then importantly at S1(4)(f), a court must have regard to the relationship which the child has with relatives including the likelihood of any such relationship continuing and the value to the child of its doing so; the ability and willingness of any of the child’s relatives to provide the child with a secure environment in which the child can develop and otherwise meet the child’s needs; and the wishes and feelings of any of the child’s relatives. Under S1(6), the court must then consider the whole range of powers available and:
“…must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.”
55. There are various indications within statute and case law, as to the (unsurprising) importance to children of their being brought up in their natural family where this is safe and not otherwise contraindicated. Authority is hardly needed for this proposition but it can be seen from YC v The United Kingdom [2012] 2 FLR 332, a decision of the ECHR; from S52 of the Act whereby the consent of a parent to an adoption order can only be disposed with if the welfare of the child ‘requires’ it ( Re P [2008] 2 FLR 625 - the connotation of the imperative); and from Re B [2013] 3 FLR 1075 - adoption as ‘a last resort’. Similarly, the Children Act 1989 casts on every Local Authority a duty to promote the upbringing of children (within their area and who are in need) by their family. In Re B-S [2013] EWCA Civ 1146, the Court of Appeal set out in the context of leave to oppose adoptions, a number of relevant considerations at paragraph 74 (i) to (x), all of which I have considered on this and other occasions. Of particular relevance is perhaps subparagraph (vii) where Sir James Munby P said:
“The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the passage of time. On the other hand the older the child and the longer the child has been placed, the greater the adverse impacts of disturbing the arrangements are likely to be.”
He continued at paragraph (viii) to observe that the expression ‘throughout the child’s life’ may now mean for upwards of 80 or even 90 years and that:
“… judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose (an adoption) is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham said in Re O [1995] 2 FLR 124 that ‘the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems’. That was said in the context of contact but it has a much wider resonance.”
I am also aware that other judges have had to grapple with similar problems to that which arises here, for example Mr Justice Holman in A & B v Rotherham Metropolitan Borough Council and Others [2014] EWFC 47 (Fam); but every case is so utterly fact specific that there is little if anything to be taken from other cases, even where there are fairly similar facts.
56. It has repeatedly been stressed, with many such cases being cited in Re B-S itself, that it is necessary to balance the benefits and the detriments, the pros and the cons of each reasonable option for a child’s future. Here there is a straight choice: should A stay with Mr and Mrs X or should she be sensitively moved to the grandparents? So what are the pros and cons of each possible outcome?
57. In favour of A staying with and being adopted by Mr and Mrs X is the very significant factor that she is secure, well settled, attached, happy, confident and meeting her milestones within their care. The last 17 months covers all of A’s sentient life. Mr and Mrs X, together with their extended family, are the only family that she knows. It is ‘not rocket science’ to say that she will be very distressed indeed and to a greater or lesser extent traumatised by a move to another family whom she has never met. It would be a move which she would not be able to understand. All things being equal, no one would even begin to contemplate moving A from her present home. Put at its most basic, the disadvantage of an adoption order in favour of Mr and Mrs X is that which is the advantage of a Special Guardianship order to the paternal grandparents: that a placement by way of adoption is not an upbringing within a child’s natural family.
58. The factors in favour of the Special Guardianship order are thus that A would have all the advantages of being brought up in her natural family, in the same household as one sibling and probably very close to the other sibling. She would be within the bosom of a close-knit family who, as I am satisfied, would commit to her wholeheartedly. She would be within the culture into which she was born and she would have first hand knowledge of her heritage and origins. If her birth parents wanted to make some form of contact with her, then that would be possible, subject to the sensitive control of the grandparents and the aunts, with the potential benefit to A of knowing her birth parents (even with all their evident difficulties in life). By such an upbringing, there would be no risks that later in life A would become resentful and say or think ‘why was I denied an upbringing with my family and my siblings when they were able to have such an upbringing which I could have had too?’ That, if it occurred, would clearly be detrimental to her welfare. There is also the contrary possibility which I have to bear in mind too that A might become resentful of having been moved from Mr and Mrs X if she were not to be happy as time goes on in her natural family.
59. The downside of the process of moving A is plainly the risk of the inevitable distress, upset and unsettlement turning out to be more profound than is anticipated by Mrs Fairbairn and by the Children's Guardian and, to a lesser extent (because her remit was more limited), by Ms Miller. There is the risk that Mr Richardson’s very real concerns would turn out to be proved by events. If that were the case, real damage would be done to A with no benefit. Also to be put in the scales on the deficit side, there is the grandmother’s somewhat limited mobility and history of anxiety and depression as discussed above. Added to that, parenting two very young children at the ages of the grandparents (59 and 58) carries its own risks and obvious disadvantages. If anything happened to either grandparent, it would clearly be very detrimental to A although I am satisfied that there would be complete and very satisfactory ‘cover’ from the extended family. The grandparents have brought up four children successfully (which is not to suggest that they failed L) and E is thriving with them. That said, the increasing age of grandparents of these ages would inevitably coincide with the probable or possible challenges of the adolescent years of A and E.
60. None of us can predict the future, although S1(2) and S1(4)(c) of the Act require the court to try to do so. It depends heavily on the dynamics of changing relationships and on fortuitous external events to which different individuals will react differently. There are many unpredictable chances which influence all our lives. Neither the short-term nor the long-term risks are quantifiable and I have not found the decision at all easy. Indeed I have agonised over it. It seems utterly counterintuitive to move a child who is so happy, settled, loved and well cared for. However, in the last analysis, I have concluded that if the transition can be successfully made, then on the balance of probabilities, it would be in A’s best interests throughout her life to be united with her natural family. I do not consider that the grandmother’s health and mobility deficits are such as to cause this not to be the case. Like Mrs Fairbairn, I regard those health difficulties as ‘manageable’, more particularly with the support which the grandmother has. I am fortified in this finding by the very recent addendum reports of Mrs Fairbairn and Ms Miller. I consider there is a real risk of A being resentful later on, say when she moves into early adolescence, about having had a completely different upbringing from her siblings and having missed out on their company, when the natural family were (as I find) able and willing to bring her up. Sibling relationships are generally recognised as being some of the longest lasting and (if things work out well) most valuable we may have in our lives.
61. The ages of the grandparents are, as I have said, clearly disadvantageous factors which weigh heavily in the balance; but even so, not in my judgment such as to outweigh the potential benefits of A of being brought up with her siblings, when they (the grandparents) would be so well supported by the extended family. Likewise, I accept that bringing up and caring for two very young children, one of whom will be distressed and confused for a period of time, will be extremely challenging. Two children are greatly more demanding than one, but the preponderance of all the expert evidence, which I accept, is that these paternal grandparents are adequate to the task.
62. That being so, the question comes down to the risks of making a transition to the grandparents. Mr Richardson has prepared a supplementary statement dated 6 th May 2016 (after the hearing) as to how this would be done. He reports that Mr X is willing to help facilitate the move, if he turns out to be emotionally able to do so, although Mrs X does not think that she could do so; nor do the extended family of Mr and Mrs X. I will not set out Mr Richardson’s proposals and options for transition in detail as they are dependent on how things turn out. I accept the genuine and conscientious anxieties of Mr Richardson about the risks of moving A. On the other hand he is inevitably (and this is not a criticism) seeing it all from the point of view of one who has for over a year and a half supported Mr and Mrs X and the placement of A with them. I have to set against Mr Richardson’s concerns, the unanimous view of the other experts, Mrs Fairbairn and the Children's Guardian, who between them have 60 years in social work and childcare, and Ms Miller based on her more limited remit. As already set out, their opinions are that this move can be made and that, although it will inevitably cause distress, confusion and some regression, this should be and would probably be measurable in ‘months rather than years’, with A coming to adapt to life within her new family. If that can be achieved, with the preponderance of the evidence which I accept being that it can be, then a move now would in my judgment be in the best interests of A’s welfare throughout her life. Put at its lowest I am unable to conclude, having regard to S1(6) of the Act, that the making of an adoption order would be better for A than not doing so.
63. I add for completeness that I have considered whether it would best serve A’s interests throughout her life if there were to be an adoption in favour of Mr and Mrs X (avoiding the risks involved in the separation of A from them and their family) with some form of contact to the paternal grandparents and the extended natural family. This was scarcely touched on at the hearing and no one has applied for it, not proposed it. Might it nevertheless be a sort of compromise outcome which would enable A to have the benefit of both families? Put like that it may seem attractive; but I have concluded that it would be fraught with potential difficulty and could actually turn out to be disruptive. Such contact could only be infrequent for fear of undermining the placement with Mr and Mrs X. It would inevitably bring A into contact with her natural siblings, which could well bring feelings of resentment or jealousy that she was not being brought up with them. In addition, it would depend upon the existence of and continuation over the years of good relationships between the adults. At present this is entirely untested and unpredictable, as they have never even met. Whilst I am not suggesting there is any evidence that the two families might not get on, there would be ample potential circumstances in which difficulties could arise which would be detrimental to A. Trying to anticipate the future I would not therefore consider that an adoption order with contact would be likely to be in A’s best interests throughout her life, even if such an order were being sought.
64. My heart goes out to Mr and Mrs X. It is hard to imagine how much they are suffering and will suffer. They have done nothing wrong and have been beset by a cruel stroke of fate in that A’s extended family members have emerged so late in the process (also through no fault of their own) who wish to, and as I have found, can bring A up. That said, my decision is ultimately clear, namely that there should be a Special Guardianship order in favour of the paternal grandparents. I have a discretion to discharge the placement order which is what I would propose to do, subject to any submissions to the contrary. The care order would revive and cover the situation for a speedy transfer of A to the paternal grandparents, with the invaluable help of Mr Richardson and Deirdre Ryan and, if he can somehow find the emotional strength, of Mr X. Now that the decision has been made, I express the profound hope that all concerned (the X family in spite of their pain) will find the capacity within so to work with Mr Richardson as to make the transition happen with the least stress for A that can be achieved.
[ Judge’s Note:
As I said to Mr Todd after delivery of the Judgment, I have of course had regard to the various Art 8 rights to respect for private life which are engaged here, but I do not find in practice in cases like this that they add anything in reality to the statutory welfare test.]
NB: NOW SEE THE COURT OF APPEAL’S DECISION IN RE W (A CHILD) [2016] EWCA Civ 793.