ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McFARLANE
LORD JUSTICE LEWISON
| Re: G (A child)
Miss Lorna Meyer QC (instructed by City and Council of Swansea) for the First Respondent
Miss Catherine Heyworth (instructed by Graham Evans & Partners) for the Second Respondent
Miss Ann Chavasse (instructed by David Prosser & Co.) for the Third Respondent
Hearing date : 13 March 2014
Crown Copyright ©
Lord Justice McFarlane :
"I am invited to consider whether Mrs R should be made a respondent under the Family Procedure Rules 2010, rule 14.3. I have to ask myself this question: to what end? There is no application by Mrs R for a residence order. She has no locus to oppose the adoption order or to seek leave to do so. If she sought a residence order she does not fall into any of the categories provided for in Children Act 1989, s 10 and would need leave under s 10(9)."
(a) Can AR make a substantive application within the adopting proceedings?
"But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless—
(a) the court has given leave to apply, and
(b) the child is not placed for adoption by the authority."
"The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made."
"(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent)….
(4) The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave…
(7) The court cannot give leave under subsection…(5) unless satisfied that there has been a change in circumstances since… the placement order was made."
"(3) Where a placement order is in force—
(a) no prohibited steps order, residence order or specific issue order, and
(b) no supervision order or child assessment order,
may be made in respect of the child.
(4) Subsection (3)(a) does not apply in respect of a residence order if—
(a) an application for an adoption order has been made in respect of the child, and
(b) the residence order is applied for by a parent or guardian who has obtained the court's leave under subsection (3) or (5) of section 47 or by any other person who has obtained the court's leave under this subsection."
"In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances."
"…a discretion arises in which the welfare of the child and the prospect of success should both be weighed. My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child's welfare would best be served by revocation of the placement order, it would surely almost always serve the child's welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted."
(b) Joining AR as a party to the adoption proceedings.
"the court may at any time direct that (a) any other person or body be made a respondent to the proceedings; or (b) a party be removed."
In support of her submission that the court has a broad and unfettered discretion when deciding whether or not to join an individual as a party to ongoing adoption proceedings, Miss Henke refers to the decision of this court in Re R (Adoption: Father's Involvement)  1 FLR 302. In Re R the father, who did not have parental responsibility, and who was serving a sentence of imprisonment, was, nevertheless, joined as a party to adoption proceedings on the basis that he should be given an opportunity to participate. The applicant adopters appealed, but their appeal was dismissed. The relevant provision then in force under Adoption Rules 1984, r 15(3) was in similar terms to the current provision in FPR 2010, r 14.3. At paragraph 20 of his judgment Thorpe LJ said:
"The terms of the Adoption Rules 1984 seem to me to be continuingly apt in conferring on the court an unfettered discretion."
"Each case of a father who does not have parental responsibility and who may wish to be heard in subsequent adoption proceedings will have to be decided on its merits as to whether or not it is appropriate that he should be joined as a respondent under the Adoption Rules 1984, s 15(3)."
"It is logical that a judge determining an application to become a party to proceedings should have an eye to what may follow joinder. To illustrate this with an obvious example, there would be no point in joining someone as a party if they would then inevitably be refused leave to bring an application in relation to the child and would have no other legitimate role in the proceedings."
The merits of AR's application
a) The appellant accepted that the Local Authority were right to start care proceedings when they did;
b) The appellant had lived at 25 separate addresses in the period l982 to 2011;
c) The appellant had been married five times including her current marriage which was to a Pakistani national who was residing in the UK illegally. The applicant is a white Welsh woman;
d) The appellant has a history of failed relationships and has demonstrated significant distress when relationships have ended in the past. The fragility of the then current relationship with her fifth husband was a negative risk factor in any long term placement of the child with her;
e) The child's birth was registered by the appellant with a Pakistani surname and forename. The Recorder was not convinced that that step was irrelevant to the appellant's husband's application for leave to remain in the UK;
f) The appellant has suffered significant problems with her mental health since at least l995. In the ensuing years she had taken three overdoses;
g) She had a significant problem relating to alcohol abuse;
h) She had problems with her physical health relating back to 1994 when she was severely disabled after a fall. In 2010 her GP reported that she was "very disabled at home with multiple joint pains in her spine, knees, wrists, neck and hips". In 2011 her GP reported that she had "degenerative changes to her spine and she claims this severely limits her activities";
i) The Recorder described the history of the appellant's care of her own children as being "a matter of enormous concern to me".
"During these proceedings, AR has agreed that she needs counselling and/or therapy and support, and referrals have been made for this. There is unfortunately a long waiting list and it is not clear when this could start. I have to say that in the light of AR's history of failing to engage with such psychiatric services, I have no confidence that AR would attend any therapy consistently, or at all, once these proceedings end. Even if she did attend, in my judgment, AR's problems are so serious and deep rooted that therapy is likely to be lengthy and very painful for her. I am not confident she would have the resilience to complete any course of treatment. I think it is likely she would once again resort to self medication with alcohol."
a) She had engaged in and completed six sessions of counselling with a rape crisis and sexual abuse support service. A letter from that service simply confirmed that AR had attended counselling sessions and that the counselling sessions had now ended;
b) She had separated from her fifth husband and was now in the process of instigating divorce proceedings. She now realised that his motives in marrying her were in order to gain UK citizenship;
c) She considered that her mental health had "stabilised quickly", she had not sought assistance from her GP and had not experienced a decline in her mental health following the proceedings as had been predicted by the Local Authority;
d) She had remained living in her property and undertaken improvements to it;
e) Her family support was stronger than ever, with all pledging their long-term support for her if the child were to be placed back in her care;
f) She attended all contacts which were conducted in a positive manner and were plainly enjoyed by the child.
"On these facts she could not hope to persuade me to grant leave for such an application. It would lack merit and would cause a high level of unwarranted disruption to G such that he would be likely to be harmed by it. In fact her involvement in the previous proceedings is extremely unusual. This is not a blood relative of the child; she is an individual who was caring for G because of her own and her husband's ulterior motives. She has failed to recognise the Local Authority's concerns about this mother giving up her child to a non family member and has pursued her case in these proceedings and the previous proceedings to the possible detriment of the mother."
Lord Justice Lewison
Lord Justice Sullivan