COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HHJ BARHAM ON 21st MAY 2004
THE NORWICH COUNTY COURT
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE WILSON
| Nicola and Mark Webster (the parents)
|- and -
|Norfolk County Council
The Children by their Children's Guardian
2nd ,3rd & 4th Respondents
Kate Thirlwell QC and Rachel Langdale (instructed by Norfolk County Council) for the 1st Respondent
Charles Howard QC and Anna McKenna (instructed by Messrs T Higgin Solicitors) for the 3rd, 4th, and 5th Respondent
Barbara Connolly acted for the Adoptive Parents of A, B and C.
Hearing date: 4th December 2008
Crown Copyright ©
This judgment is divided into the following sections
|(1)||Introduction||1 to 17|
|(2)||The role and function of this court||18 to 24|
|(3)||The nature of the fractures sustained by child B: the incidence of scurvy||25 to 30|
|(4)||The facts in outline||31 to 38|
|(5)||How the applications were dealt with on paper||39 to 41|
|(6)||The case for Mr and Mrs Webster||42 to 66|
|(7)||The skeleton argument addressing the points raised by Hughes LJ||67 to 72|
|(8)||The case for the local authority||73 to 84|
|(9)||The case for the guardian||85 to 91|
|(10)||The position of the adopters||92|
|(11)||The hearing before Judge Barham on 20 May 2004||93 to 108|
|(12)||The judgment given by Judge Barham on 21 May 2004||109 to 116|
|(13)||The appellants' notices and grounds of appeal against Judge Barham's first order||117|
|(14)||The second hearing before Judge Barham||118 to 121|
|(15)||Judge Barham's second judgment||122 to 131|
|(16)||The adoption orders||132|
|(17)||The grounds of appeal against care and the freeing orders||133 to 134|
|(18)||Ladd v Marshal (1)||135 to 139|
|(19)||Discussion||140 to 144|
|(20)||Is it open to this court (in 2008) or 2009 To set aside the adoption orders||145 to 165|
|(21)||Does ECHR make any difference?||166 to 175|
|(22)||Mr and Mrs Webster's change of heart on the adoption point||176 to 170|
|(23)||Ladd v Marshall (2)||182 to 191|
|(25)||Lessons for the future: second opinions||192 to 199|
Lord Justice Wall:
The role and function of this court
(1) the court considers that the appeal(s) would have a real prospect of success; or
(2) there is some other compelling reason why the appeal(s) should be heard and that there is justification for the massive extension of time (as to which see paragraph 23 below).
The nature of the fractures sustained by child B: the incidence of scurvy
(1) a recent fracture of the anterior (back) end of the right tenth rib;
(2) metaphyseal corner fractures of the proximal humerus bilaterally (that is the long bone of the both arms at the shoulders);
(3) further fractures at the distal right femur (i.e. the lower end of the thigh bone), the distal left femur and the distal left tibia (i.e. the lower end of the shin bones).
These metaphyseal injuries are caused by unacceptably forceful twisting / pulling forces applied to the limbs. They do not occur in the course of normal accidental injuries a child of this age may be subject to in the course of rough and tumble play with other children or adults. The forces brought to bear are unacceptable and would be clearly such to the perpetrator, there is no overlap with acceptable force. These fractures have a high specificity for inflicted non-accidental injury. The rib fracture is likely to have been caused by forceful squeezing.
I can entirely understand why the radiological changes initially were thought to represent non-accidental injury given the metaphyseal infractions (fractures) and anterior rib fracture and the greater incidence of non-accidental injury compared to the incidence of scurvy in this country, but I believe that the specific changes of scurvy I have identified and the symmetry of changes would militate against non-accidental injury.
The fact is that scurvy, although not actually unheard of in the UK is now so rare that the overwhelming majority of paediatricians either will never have seen a case, or will have seen one or two cases, probably long ago, or abroad. Also I suspect that many of them will also have the preconception that purpura and gum bleeding is common in scurvy in children, as in the classic description taught at Medical School.
The facts in outline
How the applications were dealt with on paper
The critical question is likely to be whether time should be extended (for all or any such applications) given (a) the making of adoption orders nearly three years ago; (b) the state of the present medical evidence which is helpful to the parents but not unanimous; (c) possible debate as to why scurvy was not more fully canvassed at the time; and (d) the passage of time since the orders, the appearance of the new theory in 2006 and a decision not to ventilate the medical evidence before Holman J in care proceedings in June 2007 relating to a subsequently born child.
The case for Mr and Mrs Webster
it is my view that he probably didn't have clinically significant scurvy and that non-accidental injury remains the most probable diagnosis.
However, she deferred to the professor of paediatric radiology.
The skeleton argument addressing the points raised by Hughes LJ
(i) Why was the alleged non-accidental injury, over a few weeks but not months?
(ii) Why in such a limited time-frame?
(iii) Why only one of three children?
(iv) Why over such a wide area of the body, (e.g. ribs, shoulders, both knees, left ankle and possibly left wrist)?
(v) Why was general development/motor development age appropriate?
(vi) Why did the parents consult the GPs and the Health Visitor being concerned as to B's growth and feeding behaviour, if non-accidental injury was the cause of the injuries?
(vii) Why did child B's dietary problems continue after reception into care?
(i) the proceedings related to Brandon only, there could be no definitive findings in relation to the three older children;
(ii) the desire that the children know the truth about all the allegations;
(iii) the order made by Holman J in February 2007 refusing an application to permit a re-hearing of the matters decided by His Honour Judge Barham in 2004;
(iv) there would not have been a judgment in respect of the making of the Care Orders or the Freeing for Adoption orders;
(v) there would not have been a reopening of the important parts of the medical evidence;
(vi) they would have required more than the days available to hear and test the evidence, a factor mentioned to Holman J in a letter dated 22nd June 2007 written to him by them following the advocates meeting on 21st June.
The case for the local authority
(i) the focus of those proceedings was Brandon, not his siblings;
(ii) the application to withdraw the application for a care order was made because Brandon's parents had made significant strides in their parenting and were able to provide Brandon with a happy home in which he was thriving. This was after very significant resources had been devoted to the family by the local authority. Mrs Webster acknowledged the value of that help and support in her evidence. She accepted that she was now a better parent. There was no question of removing Brandon from his parents. Against that background there was a conflict of medical evidence on the cause of B's fractures: scurvy and anaemia or non-accidental injury. That issue did not need to be resolved in order to determine what was in Brandon's best interests;
(iii) other issues (broadly of neglect emotional and physical) which were of significance in the cases of A B and C were irrelevant, given the progress referred to above, in respect of Brandon.
i) a vitamin C blood test could have been performed on the sample of blood taken from child B in November 2003. The level of vitamin C would have been established beyond doubt;
ii) repeat radiological examination could have been carried out several of the radiologists refer to this as useful;
iii) the relevant brands of soya milk could have been identified and tested for vitamin content;
iv) the parents would have been able to be specific about how often, if at all, sweetened, as opposed to unsweetened, milk was given;
v) the health professionals (GP and Health Visitor) would have been in a position to say what advice had been given and when, from recent memory as well as from their notes. In particular it would have been possible to determine at whose suggestion child B was given supermarket soya milk and what was said about orange juice and vitamins;
vi) there would have been greater clarity as to B's precise clinical symptoms, treatment and recovery;
vii) evidence would have been obtained as to child B's diet from Mr and Mrs Webster, the extended family and the health care professionals; and
viii) there would have been a series of experts' meetings, close to the event. A consenus may have emerged.
The case for the guardian
The position of the adopters
Given the inordinate delay, there has been and will be considerable injustice to the children and the adopters. It threatens a huge infringement of their right to family life and undoubtedly will cause enormous stress, anxiety, disruption and emotional / psychological harm, particularly to the children. Adoption orders have been made. The adopters are not eligible for public funding. Had Mr and Mrs Webster acted with due diligence, such matters as needed further investigation /litigation should have occurred prior to adoption orders being made.
The hearing before Judge Barham on 20 May 2004
HH Judge Barham:-
The only issue is, well, perhaps you (had) better deal with that precisely. What am I being asked to decide?
The issues are how the injuries on (child B) were caused. Were they caused accidentally or non-accidentally? If they were non-accidental, who were the likely perpetrators? Was it either or both parents?
I think it's important to understand that fractures are extremely common in children. Children fracture themselves with gay abandon in the course of normal play. We understand from that the degrees of force that are necessary to produce fractures. But in the course of normal play or rough and tumble, or even football matches type injury, we never see corner fractures. Corner fractures just don't occur. That, if you like, in the setting of normal acceptance of force i.e. rough and tumble, forceful play, sporting injuries aren't strong enough to produce these injuries. Therefore, when we do see them, the implication is that is (sic) must have been caused by a degree of force outwith normal activity and therefore unacceptable.
Q. Finally, just in terms of nutrition, or nutritional deficit, did you see any radiological findings that would lead you to consider there was (a) nutritional deficit which might have caused these injuries?
A Well, no. But I think it would have to be pretty severe before it was radiologically apparent. The bones are normal. I don't think I can say he had no nutritional deficit at all. If it had been for longer and severe, it would have shown itself in the x-ray.
Q Just picking up on that last point, if I may. If the child had not been receiving sufficient vitamin C, vitamin D and iron for some 12 months at this stage it came to light when one would be expecting him to be growing a substantial amount, that could have impacted on his bone density, one imagines?
A I have to say, I'm not in a position to comment. I think I'm in danger of straying into areas I can't give a sensible comment.
Q And, indeed, where there is scurvy or rickets it can occur in those situations too?
A If you have scurvy or rickets, yes. Well, they look very similar.
A But [inaudible] you can tell they've got scurvy or rickets.
Q Well, you can tell they've got scurvy or rickets when it is in an advanced stage, that would be obvious radiologically, but not to [inaudible] to know at that stage. Would that be fair?
A Well, yes. Then you wouldn't see the fractures.
Q Can you be sure of that?
A I think you probably can, yes.
Q Sorry to press you, but how certain can you be if the child did have
A Well, I've seen a lot of case(s) of both rickets and osteomyelitis and I've never seen a corner fracture in relation to those.
A During the course of my practice, I've seen a significant number of children with nutritional bone disease like rickets or osteomyelitis, and even those with very florid changes I've never seen a metaphyseal fracture like that present in this case. It can certainly break, and it has been recorded that you can look at [inaudible]. I think the suggestion that they may occur in isolation in the absence of the other findings that would suggest rickets or osteomyelitis, that's the bit I'm taking issue with.
Q But this, of course, is a child we know he has been fed on what apparently is insufficient nutrition in this developing child. So we do not know. He may, of course, have the beginnings of rickets or scurvy, might he not?
A I am not in a position to comment on the beginnings of rickets or [inaudible]
Q But it has certainly been reported and then you could not rule it out [inaudible] experience seen a number of children with rickets or scurvy?
A What I think I can confidently say is this, the child shows absolutely no radiological evidence of rickets or scurvy.
Q That does not mean to say he has not got it.
A No, but he has absolutely no radiological evidence of that it is present (sic).
The judgment given by Judge Barham on 21 May 2004
I do not propose to go through the history of this family in any detail. However, it is significant to note that (child B) suffers from what is described by one of the experts as severe aversive feeding behaviour. It seems that he had never eaten solid food and this has been a matter of concern to his parents.
on 6 November 2003 (child B) was taken by his parents to the GP. He was not using his legs and shuffling along on his bottom. On 8 November 2003 he was seen at the hospital. X-rays of his hips were taken. There was nothing abnormal.
On 9 November 2003 his mother was concerned because his left leg was swollen and once again he was taken to hospital. He was treated initially for osteomyelitis. It was felt there might be a bone infection. Fractures were discovered, as a result of which an emergency protection order was obtained in respect of (children A and C) on 14 November, and on 19 November they went to the current specialist foster carers where they live. (Child B) joined them after he left hospital.
I turn to consider the various alternative possibilities put forward as being the cause of these injuries. They are these; one, osteomyelitis, two brittle bone disease, three poor nutrition, four, scurvy or rickets, five, inflicted by (child A).
Each of the experts who gave evidence rejected these suggestions. Mr M said there was nothing to suggest osteomyelitis, a nutritional deficit, rickets or scurvy or brittle bone disease. He said the density of the bones would not make features of the type found in (child B) more likely or easier to cause. He excluded as a possible cause of fractures parental restraint or the child getting a leg caught in a stair gate.
(The consultant orthopaedic surgeon) agreed with the consultant radiologist but not in quite such emphatic terms. He couched his evidence in terms such as it was very unlikely, for example, that diet affected the bone quality and is was speculation to suggest so.
Accordingly, I find that (child B) has suffered non-accidental injuries, namely those identified by (the consultant radiologist) and I find that the mother and the father are the only possible perpetrators of these injuries.
The appellants' notices and grounds of appeal against Judge Barham's first order
The second hearing before Judge Barham
Judge Barham's second judgment
In considering the applications for care orders I have first to be satisfied that the threshold criteria were satisfied. I then have to consider whether care orders should be made. In so doing I bear in mind the paramountcy principle, the welfare checklist, the no order principle and the care plan. An order, I accept, should only be made if it is both necessary and proportionate.
24. B, in my judgment, must have suffered emotional harm as a result of his injuries. In addition, he is described as being "intensely anxious and a wary child", and as having a sense of uncertainty and fearfulness when with his parents.
25. The guardian submits that both (B and A) have suffered emotional harm in the care of the parents. I agree that this is so.
26. Accordingly, the threshold criteria are satisfied in the case of B, on the grounds of physical and emotional harm and, in the case of A, clinical and emotional harm. Each has suffered significant harm. All three children are at risk of suffering significant harm in the form of physical abuse or emotional harm if returned to their parents.
Without an understanding of what the children have experienced, both physically and emotionally, and what they require protection from, they will be unable properly to meet the needs of the children.
71 I am asked to make an order dispensing with the consent of the parents to the making of adoption orders on the grounds that such consent is being unreasonably being withheld and to order that the three children are free for adoption. I must be satisfied that adoption is in the best interests of the children. I must have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the children throughout their childhood. I must then be satisfied, on the balance of probabilities, that the grounds for dispensation are made out. I must also be satisfied that the children are likely to be placed for adoption within 12 months.
The adoption orders
The grounds of appeal against the care and the freeing orders
Ladd v Marshall (1)
The principles to be applied are the same as those always applied when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive: third, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.
The willingness of the family jurisdiction to relax (at the appellate stage) the constraints of Ladd v Marshall upon the admission of new evidence, does not originate from laxity or benevolence but from recognition that where children are concerned there is liable to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts (including the Court of Appeal when it is dealing with applications in the family jurisdiction) will be every bit as alert as courts in other jurisdictions to see to it that no one is allowed to litigate afresh issues that have already been determined.
Is it open to this court in 2009 to set aside the adoption orders?
Nonetheless, it is my view, and it may have relevance to the present application, that had the (adopters) applied to set aside the adoption order following the information that they received in 1968, they would have had no prospect whatsoever of doing so. Equally the mother, had she been appraised of all the facts in 1968, would have had no prospects of setting the order aside, then, let alone in 1994. The order had been made and the mother had been given proper notice of the proceedings. (the appellant) had by then been living with the (the adopters) for 11 years as their adopted son, and misinformation given to them, whether innocently or deliberately, as to the religious background of the baby could not, in my view, have amounted then to a ground for setting aside the order made on 20 July 1959. In the event, far from attempting to set aside the order, they approbated it, and continued to bring up B as their son.
In my judgment such an application faces insuperable hurdles. An adoption order has a quite different standing to almost every other order made by a court. It provides the status of the adopted child and of the adoptive parents. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parents and becomes the child for all purposes of the adopters as though he were their legitimate child.
There are certain specific statutory provisions for the revocation of an adoption order. Section 52 of the Adoption Act 1976 provides for the revocation of an adoption or legitimation. Section 53 provides for the annulment of overseas adoptions. Those exceptions provide for specific cases. Unlike certain other jurisdictions, there are no other statutory provisions for revoking a validly made adoption order. Parliament could have so provided if it had wished to do so. Accordingly Mr Levy is compelled to submit that the court has an inherent power to set aside an adoption order made in circumstances such as these where, as he puts it, the order was made under a fundamental mistake of fact.
There are cases where an adoption order has been set aside by reason of what is known as a procedural irregularity: see Re F (R) (An Infant)  1 QB 385, Re RA (Minors) (1974) 4 Fam Law 182 and Re F (Infants) (Adoption Order: Validity)  Fam 165. Those cases concern a failure to effect proper service of the adoption proceedings on a natural parent or ignorance of the parent of the existence of the adoption proceedings. In each case the application to set aside the order was made reasonably expeditiously. It is fundamental to the making of an adoption order that the natural parent should be informed of the application so that she can give or withhold her consent. If she has no knowledge at all of the application then, obviously, a fundamental injustice is perpetrated. I would prefer myself to regard those cases not as cases where the order has been set aside by reason of a procedural irregularity, although that has certainly occurred, but as cases where natural justice has been denied because the natural parent who may wish to challenge the adoption has never been told that it is going to happen. Whether an adoption order can be set aside by reason of fraud which is unrelated to a natural parent's ignorance of the proceedings was not a subject which was relevant to the present appeal.
There is no case which has been brought to our attention in which it has been held that the court has an inherent power to set aside an adoption order by reason of misapprehension or mistake. To allow considerations such as those put forward in this case to invalidate an otherwise properly made adoption order would, in my view, undermine the whole basis on which adoption orders are made, namely that they are final and for life as regards the adopters, the natural parents, and the child. In my judgment, Mr Holman, who appeared as amicus curiae, is right when he submits that it would gravely damage the lifelong commitment of adopters to their adoptive children if there is a possibility of the child, or indeed the parents, subsequently challenging the validity of the order. I am satisfied that there is no inherent power in the courts in circumstances such as arise in this case to set aside an adoption order. Nobody could have other than the greatest sympathy with the applicant but, in my judgment, the circumstances of this case do not provide any ground for setting aside an adoption order which was regularly made. Accordingly, I would dismiss this appeal.
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.
An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud.
None of these situations pertains here.
In my view, this is, as Butler-Sloss, LJ said during the course of argument, a classic case of mistake. It is quite clear that the present appellant was wholly ignorant of his former wife's condition and, had he known of it, he obviously would not have consented to the adoption. That ignorance vitiates his consent and means that it was of no effect. In the absence of that consent it is very doubtful whether the adoption order would have been made. Since it is clearly in the best interest of the children that the adoption order should be set aside, for those reasons, I would extend the time for both these appeals, because formally they are separate appeals, and allow both appeals.
I should say, as a postscript, that this is, if not unique, at the very least a wholly exceptional case. I say that because I do not want the setting aside of this adoption order in these circumstances to be thought of as being some precedent for any related set of facts in some other case. This is, happily, a most unusual case and, in the circumstances and for the reasons I have sought to give, I think it right that the appeals should be allowed.
The law seems to me to be clear that there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.
(1) It was in the public interest for those who caused serious non-accidental injuries to children to be identified whenever such identification was possible. It was also in the public interest that children knew the truth about who had injured them as children and why.
(2) Had the children not been freed for adoption there would have been no argument about the capacity of the court to undertake a re-hearing or about the propriety of it doing so. The freeing orders should not be viewed as an obstacle to the mother's attempt to re-open the perpetrator issue.
(3) It was sufficient that the fresh evidence might reasonably lead, on a re-hearing, to a finding that the mother could be excluded as a possible perpetrator.
(4) Justice required that the question of perpetration be revisited: against the argument that the resultant delay would prejudice the welfare of the children there was not only the powerful consideration of public interest, but also the possibility that the children might be re-united with the mother.
Does ECHR make any difference?
Right to a fair trial
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
 The court reiterates that the essential object of Art 8 is to protect the individual against arbitrary action by the public authorities. There are, in addition, positive obligations inherent in effective 'respect' for family life. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the state enjoys a certain margin of appreciation (see Keegan v Ireland (1994) 18 EHRR 342, at para 49).
 As regards the State's obligation to take positive measures, the court has repeatedly held where it has established the existence of family relations based on descent or on existing emotional ties that Art 8 includes a parent's right to the taking of measures with a view to his or her being reunited with the child and an obligation on the national authorities to take such action (see, for example, the following judgments: Eriksson, cited above, at para 71; Margareta and Roger Andersson v Sweden (1992) 14 EHRR 615, at para 91; Olsson v Sweden (No 2) (1992) 17 EHRR 134, at para 90; and Hokkanen v Finland (1995) 19 EHRR 139,  1 FLR 289, at para 55).
 However, the obligation on the national authorities to take measures to that end is not absolute even in the case of family relations based on descent especially where the parent and child are still strangers to one another (see Nuutinen v Finland (2002) 34 EHRR 15). The nature and extent of such measures will depend on the circumstances of each case, but the understanding and co-operation of all concerned will always be an important ingredient. While the national authorities must do their utmost to facilitate such co-operation, any obligation to apply coercion in this area must be limited since the interests and the rights and freedoms of all concerned must be taken into account, and more particularly the best interests of the child and his or her rights under Art 8 of the Convention. Where contact with the parent might appear to threaten those interests or interfere with those rights, it is for the national authorities to strike a fair balance between them (see Hokkanen, cited above, at para 58; Nuutinen, cited above, at para 128; and Scozzari and Giunta v Italy (2002) 35 EHRR 12, sub nom S and G v Italy  2 FLR 771).
 in the circumstances of the case, given that the applicants' interests were weaker, as they had been acknowledged as the adoptive parents of children aged almost 10, without having any genuine pre-existing ties with them, there could be no justification for imposing on the Romanian authorities an absolute obligation to ensure that the children went to Italy against their will and irrespective of the pending judicial proceedings instituted with a view to challenging the lawfulness and well-foundedness of the initial adoption orders. The children's interests dictated that their opinions on the subject should have been taken into account once they had attained the necessary maturity to express them. The children's consistent refusal, after they had reached the age of 10, to travel to Italy and join their adoptive parents carries a certain weight in this regard. Their conscious opposition to adoption would make their harmonious integration into their new adoptive family unlikely.
 In the light of the foregoing, the court concludes that the national authorities were legitimately and reasonably entitled to consider that the applicants' right to develop ties with their adopted children was circumscribed by the children's interests, notwithstanding the applicants' legitimate aspirations to found a family.
 There has, therefore, been no violation of Art 8 of the Convention.
41. In determining whether the refusal of custody and access was 'necessary in a democratic society', the court has to consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of art 8(2) of the Convention. Undoubtedly, consideration of what lies in the best interest of the child is of crucial importance in every case of this kind. Moreover, it must be borne in mind that the national authorities have the benefit of direct contact with all the persons concerned. It follows from these considerations that the court's task is not to substitute itself for the domestic authorities in the exercise of their responsibilities regarding custody and access issues, but rather to review, in the light of the Convention, the decisions taken by those authorities in the exercise of their power of appreciation (see Sahin v Germany  2 FLR 671 (para 64) and Sommerfeld v Germany  2 FLR 671 (para 62) and TP and KM v UK  2 FLR 549 (para 71)).
42. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. In particular when deciding on custody, the court has recognised that the authorities enjoy a wide margin of appreciation. However, a stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed (see Elsholz v Germany  2 FLR 486 (para 49), and Kutzner v Germany  1 FCR 249 at 261 (para 67)).
43. Article 8 requires that the domestic authorities should strike a fair balance between the interests of the child and those of the parents and that, in the balancing process, particular importance should be attached to the best interests of the child which, depending on their nature and seriousness, may override those of the parents. In particular, a parent cannot be entitled under art 8 of the Convention to have such measures taken as would harm the child's health and development (Scozzari v Italy  2 FLR 771 (para 169), P, C and S v UK  2 FLR 631 (para 117)).
78. As regards the time limit prescribed by French law, the government pointed out that it had been reduced from three to two months by the Act of 5 July 1996, so that the child could quickly enjoy stable emotional relations within a new family and have the benefit of parental ties.
79. As it found in Odievre v France  1 FCR 621 at para 44, the court observes that it is confronted in the present case with interests that are not easily reconciled: those of the biological mother, the child and the adoptive family. There is also a general interest at stake (at para 45). In striking a balance between these different interests, the child's best interests should be paramount.
80. In this connection, the court accepts the relevance of the arguments put forward by the government on the basis of studies by child-welfare professionals, which have stressed that it is in the child's interests to enjoy stable emotional relations within a new family as quickly as possible. It further observes that the tribunal de grande instance held that psychological and legal stability should be sought for the child, 'if only through the shortness of the time within which the natural parents may avail themselves of the appropriate procedures'.
81. Furthermore, while the two-month time limit may seem brief, it nevertheless appears sufficient to allow the biological mother time to reflect and to reconsider her decision to give the child up. The court is mindful of the psychological distress which the applicant must have experienced, but observes that she was 36 years old at the time, was accompanied by her mother and had two lengthy interviews with the social services after giving birth.
82. The court lastly notes that in a recent case (VS v Germany (App no 4261/02) (admissibility decision, 22 May 2007)), concerning a minor who had consented to the adoption of her child, it found that the German authorities had not overstepped their margin of appreciation, although under German law, consent to adoption is irrevocable except in the event of a declaration of nullity, which had not been sought in that particular case.
83. Having regard to the margin of appreciation which states must be afforded in view of the diversity in legal systems and traditions and in practice (see Odievre v France  1 FCR 621 at para 49, and Evans v UK  2 FCR 5 at para 77), the court considers that the time limit prescribed by the French legislation seeks to strike a balance and to ensure sufficient proportion between the competing interests (ibid; see also, conversely and mutatis mutandis, Mizzi v Malta  1 FCR 256).
84. Moreover, in the circumstances of the case, the action brought by the third party before the Irish authorities has no bearing on the conclusion reached by the court.
Mr and Mrs Webster's change of heart on the adoption point
16. Armed with those reports, the parents issued within these proceedings an application dated 13 February 2007 in which they apply for "an order reopening the findings of the Norwich County Court in [the 2004 case] in the respects and on the grounds summarised in the appendix to [the application]." Sometimes, after courts have made findings as to what happened to a particular child or children, a need may arise to reconsider and possibly revise those findings within further or continuing proceedings in relation to the very same child or children. I myself have had experience from time to time of doing just that in the light of fresh medical or other evidence. This, however, is not such a case. I cannot stress too strongly that the previous proceedings, both the care proceedings and the later adoption proceedings, in relation to all three children A, B and C, are now completely over and in the past. Those children have been adopted. They are now, in law, the children of their respective adoptive parents, and, to their credit, Mr and Mrs. Webster have made plain that they do not for one moment seek to upset those adoption orders, nor interfere in any way at all in the new lives of those three children. In any event, it would, in my view, be both unthinkable and, in law, impossible for them to do so, the adoption orders having been validly made a considerable time ago.
17. I have accordingly dismissed that application made on 13 February 2007, and to give effect to that decision paragraph 1 of my order will say that that application
" is dismissed, the court making it clear that in, and for all purposes directly connected with, those proceedings and the children the subject of those proceedings and the later adoption proceedings (children A, B and C) the findings of [the judge in those proceedings] must and do stand."
Ladd v Marshall (2)
Judge Barham's two judgments, if I may be permitted to say so, are models of lucid clarity. Anyone who takes the trouble to read his judgments will be able to understand without difficulty the evidence Judge Barham read and heard will be able to understand what finding
There are two issues which I have to decide in connection with these proceedings; firstly, did (child B) suffer non-accidental injuries, and, secondly, who are the likely perpetrators of these injuries?
Lessons for the future: second opinions
In many cases (probably the majority) a clear picture will emerge from a constellation of factors (e.g. paediatric, radiological, parental history, medical records) which will cumulatively point the court towards certain conclusions. Though those conclusions may be resisted by parents, it would be both unrealistic and unnecessary to permit parents to obtain "mirror reports" in every discipline. In a certain number of cases, however, e.g. non-accidental head injury (NAHI), or pathologically "unascertained" infant death, certain evidence may become pivotal and by its very nature not easily receptive to a challenge in the absence of any other expert opinion. In our submission, in those cases, the court should be slow to decline an application for a second expert. Strict case management (in accordance with the protocol) should also permit such evidence to be identified within a reasonable timescale.
27 Where a party sensibly agrees to a joint report and the report is obtained as a result of joint instructions in the manner which I have indicated, the fact that a party has agreed to adopt that course does not prevent that party being allowed facilities to obtain a report from another expert, or, if appropriate, to rely on the evidence of another expert.
28. In a substantial case such as this, the correct approach is to regard the instruction of an expert jointly as the first step in obtaining expert evidence on a particular issue. It is to be hoped that in the majority of cases it will not only be the first step but the last step. If, having obtained a joint expert's report, a party, for reasons which are not fanciful, wishes to obtain further information before making a decision as to whether or not there is a particular part (or indeed the whole) of the expert's report which he or she may wish to challenge, then they should, subject to the discretion of the court, be permitted to obtain that evidence.
Lord Justice Moore Bick
Lord Justice Wilson