CD v Blackburn with Darwen Borough Council (adoption set aside) (Rev 1)

This case concerns three young boys to whom I shall refer as A, B and C, following the approach taken by His Honour Judge Booth (“HHJ Booth”) in earlier stages of the proceedings:

On 14 June 2019 HHJ Booth made final care and placement orders in respect of all three children. On 6 April 2020 he made an Adoption Order, again in respect of all three children.

The finality of those orders is not accepted by their Mother. She applied on 10 July 2020 to invoke the inherent jurisdiction of the High Court, seeking an order “revoking the Care/Placement Order dated 14 June 2019 and/or Adoption Order dated 6 April 2020”. Although not entirely clear from the application form, submissions on her behalf make plain that she challenges the entirety of the process including the threshold findings and the welfare decisions.

On 9 November 2020 three members of the Mother’s family (her sister, brother, and mother), and one member of the Father’s family (his brother) applied:

As this matter was listed before me for final disposal on 13 November 2020, the application of the family members came very late in the day, with little notice to the other parties. I had, and continue to have, grave doubts as to the standing of the wider family’s application. It seemed to me that it could only be considered after determination by the court of the Mother’s application. The reference by their counsel to Re B (Paternal Grandmother: Joinder as Party) [2012] 2 FLR 1358 does not assist as that relates to a period before the public law proceedings had concluded and, not, as here, long after the care/placement and subsequent adoption orders were made. Otherwise, the cart would be placed firmly before the horse. Only if the Mother’s application is granted, and the orders set aside, is the door opened for the family members to be considered (or, more accurately in this case, reconsidered) as carers. I toyed with the idea of refusing them permission to participate in the hearing before me, certainly until the outcome of the Mother’s application was decided, but on balance I decided to permit them to appear through counsel, for two reasons. First, the Mother’s application includes as a plank of her case an asserted need to reassess members of the wider family. Second, given the history of the case to which I will refer, it is preferable for all possible matters of relevance to be considered in the round so that there can be no question of procedural or substantive unfairness.

It was obvious that the hearing could not proceed on 13^th November 2020. The half day time estimate was inadequate, particularly with the additional recent application of the wider family to consider. The bundle exceeded 500 pages, and lengthy skeleton arguments made reference to a large number of authorities. Accordingly, I adjourned to a 1-day fixture. This judgment sets out my decision.

The applications before me are potentially momentous for the children. They are happy and secure with their adoptive parents. Their future was thought to have been settled definitively by the courts. Should I accede to the applications, there will necessarily be a re-opening of the fact finding and/or the welfare analysis. Prolonged litigation will follow. The implications for the children are profound.

On 7 May 2018 B, then 13 weeks old, presented at hospital in clear and considerable distress. An X Ray examination revealed a fracture of the femur, together with a healing fracture of the right tibia. A skeleton survey carried out on 11 May 2018 identified further limb and rib fractures.

The Local Authority commenced care proceedings on 14 May 2018. The older two children were removed from the parents’ care, as was the youngest child on his subsequent birth. HHJ Booth was seised of the case throughout and dealt with all significant hearings.

On 6 February 2019, the Local Authority applied for placement orders in respect of the older two boys, and subsequently also in respect of the youngest boy.

In April 2019 C, recently born, was placed with prospective adoptive parents, and was joined in June 2019 by his two brothers. All three are now living in and with their adoptive family.

On 14 June 2019 HHJ Booth conducted a combined fact finding and welfare hearing over 5 days. His judgment extends to 85 paragraphs. He heard oral evidence (including from the parents) and had before him extensive medical evidence. He made clear findings set out in a schedule to the order of 14 June 2019 including the following:

Inevitably, HHJ Booth concluded that the threshold criteria were met. As for the welfare disposal, unsurprisingly he found that “these parents cannot be trusted with the care of their children”.

Relevant to the applications before me is a further finding in relation to the wider family.

“Extensive efforts have been made to assess family members. One of the principal difficulties that has been encountered in contact with the wider family is that none of them will contemplate the possibility that [the child] was injured at the hands of either of his parents. I am told that there is a potential challenge to a negative viability assessment by a relative in Pakistan. That relative lives with the maternal grandparents, who were assessed at the very start of the case – but negatively- but he has done nothing to advance his challenge”. That reference is to the maternal uncle, one of the four family members whose applications are before me today.

HHJ Booth approved the care plan for adoption, concluding that “I am satisfied that there is no alternative and nothing else will do”.

The Mother, dissatisfied with the outcome, launched an appeal. On 24 September 2019 Lord Justice Peter Jackson refused permission to appeal.

Shortly afterwards, on 15 October 2019, the prospective adopters applied for adoption orders in respect of all three children. The Mother, by application dated 28 October 2019, sought leave to oppose the adoption order. Her principal argument was that a twofold change of circumstances had taken place namely (i) the Father now accepted that he had caused the injuries and (ii) she and the Father had separated. HHJ Booth gave directions for filing of evidence and set the matter down for a full inter partes hearing. Notably, she did not advance any matter relating to potential kinship carers as a reason for seeking leave to oppose.

The Mother’s application came before HHJ Booth on 21 February 2020. She was legally represented. It was dismissed. The judge concluded that there had been no significant change of circumstances and in any event, there was no realistic prospect of the children being returned to the care of either party. Once again, the Mother appealed, and once again, on 26 March 2020, the Court of Appeal (through Lady Justice King) dismissed her application for permission to appeal.

The way was left clear for a final hearing on the adoption application which was listed on 6 April 2020. The parents were properly notified of the hearing date in accordance with s141(3) of the Adoption and Children Act and FPR 14.15. By this time, the country was in its first lockdown caused by the Covid-19 pandemic. HHJ Booth initially set up a remote hearing by telephone, and then notified all parties that their attendance was excused, and the telephone hearing would not take place. He rejected the Mother’s application for an adjournment. I am not aware whether the Mother, who has been represented throughout, presented submissions in writing beforehand; if so, they will surely have been taken into account by the judge. If not, she can have no complaint that the judge did not take account of any further points she may have had. The judge proceeded to make the Adoption Order. It is hard to see what other order he could have made in the light of the history which I have set out.

Once again, the Mother challenged the order. This time she chose not to pursue an appeal, which was the logical route. Instead, she has brought a set aside application entitling her, if granted, to a re-hearing.

The advocates have cited numerous authorities to me. It seems to me that the relevant principles are neatly encapsulated in the judgment of Sir James Munby P in In re O (A Child) (Human Fertilisation and Embryology Act: Adoption Revocation) [2016] EWHC 2273 at paras 26 -28:

“26.

I have been taken to the authorities: see In re F(R) (An Infant) [1970] 1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182, In re F (Infants) (Adoption Order: Validity) [1977] Fam 165, Re M (Minors) (Adoption) [1991] 1 FLR 458, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 (affirming Re B (Adoption: Setting Aside) [1995] 1 FLR 1), Re K (Adoption and Wardship) [1997] 2 FLR 221, Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Re PW (Adoption) [2013] 1 FLR 96, Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam) , [2013] 2 FLR 1609, Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431 , [2013] 2 FLR 1393, and PK v Mr and Mrs K [2015] EWHC 2316 (Fam) . See also, in relation to the revocation of a parental order made under section 54 of the

2008 Act, G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam) ,

[2013] 1 FLR 286.

27.

There is no need for me to embark upon any detailed analysis of the case-law. For present purposes it is enough to draw attention to a few key propositions:

i)

Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent

Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.

ii)

The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.

iii)

However, "The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside "only in highly exceptional and very particular circumstances"": Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, "public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so."

iv)

An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).

v)

The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.

28.

I bear in mind, also, two important observations that appear in the authorities. The first is the observation of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 251:

"The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents."

The other is that of Hedley J in G v G (Parental Order: Revocation) [2012] EWHC 1979 (Fam), [2013] 1 FLR 286, para 33:

"the adoption authorities show that the feelings of an injured party are not germane necessarily to consideration of an application to set aside. The hurt of the applicants in both In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 … and Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, was immeasurably greater than here and it availed them nothing."

At para 43 of ZH v HS and Others (Application to revoke adoption order) [2020] 1 FLR 96 at para 43 Theis J stated that:

“In the context where the authorities have repeatedly made clear that it is only in exceptional and very particular circumstances that the court will permit the order to be revoked the critical considerations for the court are:

(1)

Was the adoption order lawfully and properly made?

(2)

The effect of revocation on the affected child.”

Initially, the Mother argued before me that a different test applies on an application made by her for the grant of permission to apply for an order under the inherent jurisdiction, which presupposes that she needs permission to apply. She submitted that I need only be satisfied that she has an arguable case. She did not point to any procedural rule or case law justifying this assertion. I reject the submission. This is not a filter stage for the Mother’s application, akin for example to requiring permission to appeal. She does not need permission to apply. This is the final hearing of the Mother’s substantive application to revoke the care and adoption orders. The test is clearly as set out in the authorities cited above. By the end of the hearing, the Mother accepted this analysis and I approach the case accordingly.

The Mother’s submissions are numerous, but coalesce around a number of broad headings.

First, she complains of wholesale procedural irregularity throughout the care and adoption proceedings such that the orders cannot stand. This is a remarkably bold submission. By way of overarching points, I have seen in the bundle nothing other than a conspicuously fair handling of the case both in terms of case management and decision making, with the parents being legally represented throughout and able fully to put their case forward. Further, the Mother has unsuccessfully sought to appeal both the final order and the leave to oppose adoption order. Either (i) she unsuccessfully placed arguments of procedural unfairness before the Court of Appeal (which I cannot say as I have not seen the Court of Appeal documents) or (ii) she did not place an argument of procedural unfairness before the Court of Appeal in which case she undoubtedly should have done and cannot now rely on such matters.

As to the particulars of complaint, her primary submission is that the failure to hold a full hearing on 6 April 2020, when the Adoption Order was made, was in breach of Article 6 and so unjust as to nullify the entire process. She submits that “the Adoption Order is null and void and of no legal effect whatsoever having been made without the mandatory face to face, remote or hybrid Final Hearing”. This is a startling proposition. In support she cites one authority, Benjamin Leonard MacFoy v United Africa Company Ltd. (West Africa) [1961] UKPC 49, a Privy Council case which seems to me to be of no assistance as it concerns delivery of a statement of claim during the long vacation in 1958 in Sierra Leone.

I am wholly unpersuaded by the Mother’s case. Rule 14.16 of the Family Procedure Rules 2010 provides a knockout blow to the submission:

Other submissions under this heading are in some instances de minimis and in other instances an attempt to re-litigate by the back door in circumstances where the front door (the original orders and the Court of Appeal decisions) has been firmly closed to her:

I consider all these arguments to be without merit, whether taken individually or cumulatively. They are matters which were before HHJ Booth, or were capable of being placed before him if deemed relevant by the parents and in circumstances where the parents were fully represented. The Mother’s appeals have been rejected by the Court of Appeal.

Second, the Mother argues that the orders represent a disproportionate interference with her Article 8 rights. The difficulty with this argument is that the children also have Article 8 rights and in accordance with Yousef v the Netherlands [2003] 1 FLR 210, where rights are to be balanced between parents and a child, then the rights of the child must prevail. It should not be forgotten that the reason why the children have been removed

Third, the Mother suggests that the possibility of vitamin D deficiency as a likely cause of the fractures was inadequately considered at trial. In support she puts forward some research papers. This is now the third explanation put forward by the Mother. For the fractures First, the Mother contended at the fact-finding hearing that the injuries were caused by the general practitioner who carried out a circumcision on B. Second, it was the Mother’s case at the leave to oppose adoption hearing that the Father had admitted responsibility. And now, third, the Mother presents a vitamin D deficit theory. Quite apart from being far too late in the day to raise, in any event the vitamin D theory was dealt with in the written medical evidence at trial (see pages F58 and F128 of the bundle before me) and there is no suggestion of any challenge to the expert reports at that time. All the research papers relied upon now by the Mother predate the trial and were therefore available to be deployed on behalf of the parents. I reject this ground for reopening the findings of fact. It is wholly without merit and cannot begin to justify disturbing the very careful exercise undertaken by the judge.

Fourth, it is suggested that the court did not pay attention to relevant case law. This seems to me to be most unlikely given the experience of the judge and the fact that all parties were represented. Had there been any substance to this, the Court of Appeal would no doubt have reacted accordingly. But the decisions and orders were left intact.

Fifth, and finally, the Mother says that the judge placed insufficient weight on the ability of wider family members to care for the children. I will take this submission together with the application by four of those family members as they dovetail for these purposes.

The four proposed carers are:

I am wholly unpersuaded by either the Mother or the four family applicants on this point. All the applicants were negatively assessed before the trial (in the case of the maternal aunt she was not putting herself forward). None of them succeeded in challenging the assessments. I reject the complaint of three of them that they were not fully appraised of their assessments. Each of them learned that the outcome was negative. Each of them could and should have checked the precise contents of their assessments if they wanted to. To do nothing when they purported to be serious applicants is inexcusably lax on their parts and cannot now be used as a justification for further assessments. Further, I am quite sure that the parents could have fully informed the family members as to the assessments. They may in fact have done so (given their apparently close relationship with these family applicants, why would they not have done so?), but they certainly had every opportunity to do so, particularly as they advanced kinship carers at the substantive fact finding and welfare hearing.

HHJ Booth had before him the assessments and gave reasons for rejecting kinship placements. Principally, the proposed carers do not fully (or at all) acknowledge that the injuries were perpetrated by either the Mother or Father. There is also the possibility referred to in the assessments that the parents would, if care is committed to family members, travel abroad to resume their own care of the children. I add that it does not assist their case that some of them are highly critical of the Local Authority in their application, which does not fill me with confidence about their independence from the Mother and the Father.

I bear in mind that it was not until November 2020 that they made this application. That, of course, was 7 months after the making of the Adoption Order, and between 1 ½ and 2 ½ years after their viability assessments. It is all far too late.

Finally, and at the risk of repetition, HHJ Booth rejected kinship placements, the Mother did not raise kinship carers at the application for permission to oppose the adoption order

The children are settled. They are stable and happy. They are in what they believe to be their forever home. They have been placed there for a year and a half. Reopening the proceedings would in my judgment be highly damaging for the children.

I am satisfied, by a very wide margin and with no reservations, that the Mother’s application must be dismissed. I am also satisfied that the applications of the wider family members must be dismissed. Both applications are without merit.