Case No: MK58/2013 & MK59/2013

IN THE MILTON KEYNES COUNTY COURT

351 Sidbury Blvd
Milton Keynes
Buckinghamshire
MK9 2DT

Wednesday, 26th February 2014

BEFORE:

HER HONOUR JUDGE BROWN

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IN THE MATTER OF:

RE H & R (ADOPTION)

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Transcribed by John Larking Verbatim Reporters
Suite 91, Temple Chambers, 3-7 Temple Avenue, London EC4Y 0HP
Tel: 020 7404 7464, Fax: 020 7404 7443
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MR ALLEN appeared on behalf of the Local Authority.

MISS GRIEVE appeared on behalf of the Mother.

MR WAINMAN appeared on behalf of the Children through their Guardian.

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JUDGMENT
Wednesday, 26th February 2014

HER HONOUR JUDGE BROWN:

1.	I am about to give an ex tempore judgment in this matter, having heard submissions from the parties and evidence from the mother.  I hope in the circumstances I will be forgiven for the brevity of this judgment, which perhaps does not reflect the importance of the judgment, in particular to the two children involved and to the mother.

2.	I have been greatly assisted throughout this hearing by Mr Allen on behalf of the local authority, Buckinghamshire County Council, by Miss Grieve on behalf of the mother, Miss S, and by Mr Wainman on behalf of both children through the children’s guardian, Mr Slade.

3.	Mother is in court and has an interpreter.  I am informed that she can understand both Cantonese and Mandarin.  

4.	The proceedings before me today are in respect of two children, “H”, born on 12 August 2009, rising five in August, and “R”, born on 13 September 2012.  He will be four in September.  The mother is Miss S.  She is in court, represented and assisted by an interpreter.  The father is Mr H.  He is not present and has played no part in these proceedings.  

5.	There are two applications before the court.  The first is by prospective adopters for the two boys, who I shall refer to as “Mr and Mrs X”.  The application for an adoption order is supported by the local authority and the children’s guardian.  The mother sought permission to oppose the adoption order but she did not receive permission to oppose and therefore she does not have the legal right to oppose the making of this order.  However, I say at once that Mother’s position has now changed and she does not oppose the adoption order even on an emotional basis.  I will say more about this in due course but her stance today is very much to her credit.  The only live issue before me at this stage is that Mother seeks a section 8 contact order permitting direct contact once a year between her and both boys.  That application is opposed by the adopters, by the local authority and by the children’s guardian.  

6.	There is a rather long and difficult litigation history in this matter.  I shall set it out briefly, however I should say that three other judges of this court have dealt with this case: His Honour Judge Serota QC, His Honour Judge McIntyre and District Judge Perusko.  I have had the benefit of transcripts of their judgments and should this judgment be transcribed this judgment should be read together with all three of those judgments because although I will briefly set out the history, I cannot do justice to the litigation history in this ex tempore judgment.  

7.	Briefly, the children were removed from their parents’ care on 23 June 2011 and placed into police protection following a police raid on the mother’s address.  The parents were arrested, remanded in custody and subsequently charged with conspiracy to manage and keep brothels between the period 2 March 2008 and 24 June 2011.  On 24 June 2011 the local authority applied for an emergency protection order and subsequently the children were made the subject of repeated interim care orders.  Mother pleaded guilty to the criminal offences in December 2011 and after trial Father was convicted in March 2012.  I am told Father remains in prison.  Mother was sentenced to two and a half years’ imprisonment but was released on 10 October 2012.  I have read the judgment of His Honour Judge Serota QC, who dealt with the care proceedings.  He handed judgment down on 21 November 2012.  He set out in his judgment his concerns about the care these children had received and he found that the children had suffered significant harm in the care of their parents.  I do not want to go into detail of the findings of His Honour Judge Serota because I am keenly aware of how distressing today is for the mother but I have taken into account the findings that His Honour Judge Serota QC made and in particular the judge’s concerns about Mother’s ability to engage openly and honestly with professionals, given the evidence of the psychologist instructed in that case.   His Honour Judge Serota QC made a care order and a placement order in respect of both children.  Mother applied for permission to appeal that decision and this was refused on paper by Black LJ on 25 March 2013.  Mother then applied to revoke the placement orders in respect of both children on the basis that there had been a sufficient change of circumstances since the final hearing.  Once again I have read the judgment of His Honour Judge McIntyre on 22 April 2013.  Once again I do not want to cause distress to the mother to set out why her application was refused but I have taken on board the gravity of those concerns and why that application was refused.  The plans for the children’s placement with the prospective adopters were in fact delayed as a result of a stay imposed by the Court of Appeal following Mother’s application for leave to appeal the dismissal for application for permission to revoke the placement orders.  The timing of this stay was unfortunate because introductions had commenced between the children and the prospective adopters and it is said in the local authority evidence that this caused the children distress.  I do not place any weight on that; Mother had every right to exhaust all appeal avenues but it is another part of the history of these children which leads them to have had such unsettled care arrangements.  Mother’s last direct contact with these children was on 2 May 2013.  The prospective adopters issued an adoption application on 29 August 2013.  Mother’s application for leave to oppose the adoption applications came before District Judge Perusko on 10 January 2014 and he handed down a judgment on 23 January 2014 refusing Mother’s application.  Mother has not sought to appeal that decision.  Once again I have read that judgment and taken on board the concerns of the court.  On 6 February 2014 Mother applied for a contact order, in fact under section 26 of the Adoption and Children Act.  That is opposed by the adopters, by the local authority and by the children’s guardian and I have read all the accompanying supporting statements by the parties in respect of their respective positions.  I have also read the annex A report.  

8.	I am grateful to the parties, who have assisted me with the law.  I turn firstly to the adoption.  Pursuant to section 47(4) of the Adoption and Children Act 2002, the court has jurisdiction to make an adoption order where three matters are established: the child has been placed for adoption by the adoption agency with the prospective adopters in whose favour the order is proposed to be made, the child was placed for adoption under a placement order and no parent or guardian opposes the making of an adoption order.  I have already set out that Mother cannot legally oppose the making of the order because her permission application was refused.  In any event her position today is that she supports the making of the order.  I must of course have particular regard in coming to a decision relating to the adoption of a child that the paramount consideration of the court must be the child’s welfare throughout his or her life under section 1(2) of the Adoption and Children Act and that I must have regard to the Welfare Checklist as set out under section 1(4) of the Adoption and Children Act 2002.  Therefore, when I look at the application for an adoption order in respect of each child I say at once that I have read all the documents in this case but I have been particularly assisted by the statements of the social worker, Miss Pinnington, the statements of Mother, the annex A report and the report and addendum report of the children’s guardian.  

9.	I have also of course borne in mind the history as set out in the judgments to which I have already referred.  However of key importance today is the evidence of Mother herself.  I am very pleased that  mother felt able to tell me how she felt and I think it important that these children know that their mother attended court and was able to express exactly what she thought about this application.  Despite an adoption application before the court, she will always be their biological mother and they will always want to know about her.  Mother explained to me her position as follows and I hope I will be forgiven for reading out her evidence (through an interpreter) in full:
“I would like to see my children because I have brought their lives into this world.  Wherever they live, so long as they are happy I will have peace of mind.  I am aware the guardian and the social worker and everyone involved thinks it is best for the children to be adopted and I have now come to accept that.  I would like to express my heartfelt thanks to everyone involved in caring for my sons, including the guardian, the social worker and the foster parents.  I would like to see my children, not that I want to know where they live but I want to see them to make sure they are happy and well and then I will feel satisfied.  I will not seek to disrupt their lives.  I support the decision of the guardian, of the social worker and the court and of the adoptive parents but on the other hand I would like to see the children to have first hand knowledge of how well they are studying and how tall they have grown and whether they are happy.  I am aware I have made many mistakes in the past but after this transformation over the past one and a half years I have come to accept the judgment of the court and the suggestion of the guardian and the social worker but I would also like the court to consider my needs in seeing the children once a year so that I can feel happy and I would treasure the time of seeing them that they are happy.  I would like my children to know that they are fortunate people in this world; they have two mothers.  They have one mother who is the biological mother giving birth to them and another mother to nurture them and bring them up.  They would be the most fortunate people in the world.”

It is very much to Mother’s credit that she has taken this stance and it will be of very great comfort to both boys to know that Mother has been able to put her needs to one side and prioritise their best interests.  Whilst incredibly hard for Mother to do this, I commend her for it.  However, even with Mother’s standpoint on the adoption I must be satisfied that adoption is in the best interests of each boy separately for the rest of his life.  

10.	I have reminded myself of the dicta in the now well-known case of Re B-S (Children) [2013] EWCA Civ 1146.  I have reminded myself of the draconian nature of adoption and that it can only be countenanced when it is the only realistic option available to the child or children involved.  It is an order of last resort.   In considering this issue I have had regard to the extended welfare checklist at section 1(4) of the Adoption and Children Act 2002.  I have considered the factors set out under that section.  Nobody argues other than the pressing need of these two little boys is for stability, security and permanence.  No one suggests other than these prospective adopters are meeting all of their needs.  I have read the annex A report.  The children are reported to be thriving and the prospective adopters are reported to be particularly sensitive to the children’s needs.  I am particularly comforted also to know that there is a very good cultural match in this case and that the identity needs of these children are going to be very well met.  

11.	I have read the report of the children’s guardian and I consider in particular at D16, paragraphs 7 and 8.  The guardian has said the following:
“On 20 December 2013 I met the adoptive parents and observed H and R.  It is my view that the adoptive parents are able to meet all of the children’s needs and in particular their understanding of the Chinese culture.  I was informed that the children settled quickly with no emotional or behavioural problems.  I observed the children to relate well and spontaneously to the adoptive parents, who responded in a caring and affectionate manner.  The adoptive parents informed me that the children have been welcomed by the wider family and have integrated into the local community.  H has attended school, has made friends and is making good academic progress.  R is benefiting from the stimulation and socialisation provided by his attendance at nursery.”

12.	Therefore, having looked at the section 1(4) criteria and considering the evidence I am satisfied that the best interests of these children are met in this adoptive placement.  I am heartened, as I say, by the stance of the mother and although I have constantly considered the draconian nature of the order I am going to make, I have no hesitation whatsoever in finding that it is in the interests of each of these children separately to remain placed together in this very special and very good adoptive placement under an adoptive order.  I make the order.  

13.	Turning then to contact.  Although the application before the court is for a section 26 contact order, Mother in fact seeks a section 8 order but of course no technical point has been taken about it.  I am reminded of section 46(6) of the Adoption and Children Act, which provides that before making an adoption order the court must consider whether there should be arrangements for allowing any person contact with the child and for that purpose the court must consider any existing or proposed arrangements and obtain the views of the parties to the proceedings.  A contact order made in relation to an adoptive child is made under section 8 of the Children Act and is governed by the Welfare Checklist in section 1(3) of that act.  I am grateful to the parties for helpfully referring me to a number of authorities.  I have been referred to Re P (A Child) [2008] EWCA Civ 535 at paragraph 154.  That assists me with the right time to adjudicate on contact.  What it in fact says:
“We do not know if our views on contact on the facts of this particular case presage a more general sea change in post adoption contact overall. It seems to us, however, that the stakes in the present case are sufficiently high to make it appropriate for the court to retain control over the question of the children's welfare throughout their respective lives under sections 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post adoption in accordance with section 26 of the 2002 Act, under section 8 of the 1989 Act. This is what Parliament has enacted. In section 46(6) of the 2002 Act Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.”

That is an important passage because it reminds me that I have the jurisdiction to make the defined section 8 contact order and indeed in certain circumstances to control contact by the court post the adoption.  

14.	I have set out at length the mother’s views about contact and I cannot put them more succinctly than she does herself, save that the thrust of her case is now:
“I want contact simply to make sure that they are well and to reassure them that I am well.  I do not want to disrupt the contact.  I will abide by any conditions and I have moved a very, very long way from the position in the past.”

I understand the mother’s views, I sympathise with the mother’s views and I feel a great deal of compassion for her.  However, I also have  to consider the views of the professionals, the local authority social worker, the children’s guardian and not least the prospective adopters.  The prospective adopters do not support direct contact.  I have been informed that they have been asked as recently as I think yesterday.  I have of course been referred to the case of Oxfordshire County Council v X, Y & J [2010] EWCA Civ 581.  Paragraph 36 says the following:
“It is a strong thing to impose on adoptive parents, it is "extremely unusual" to impose on adoptive parents, some obligation which they are unwilling voluntarily to assume, certainly where, as here, the adoption order has already been made. Was there a proper basis for taking that extremely unusual step? In our judgment there was not. The judge found that the adoptive parents were genuine when they expressed their concerns, so what was the justification for imposing on them something they conscientiously and reasonably objected to, particularly when, as we have seen, they say that they have not ruled out the possibility of letting the natural parents have photographs in the future? As we have said, they are not to be saddled with an order merely because a judge takes a different view. The adoptive parents are J's parents; the natural parents are not. The adoptive parents are the only people with parental responsibility for J. Why, unless the circumstances are unusual, indeed extremely unusual – and here, in our judgment, they are neither – should that responsibility be usurped by the court? We can see no good reason either on the facts or in law. On the contrary, there is much force in the point they make, that they wish their status as J's parents to be respected and seen to be inviolable – not for themselves but in order, as they see it, to give J the very best chance for the adoption to be successful.”

15.	The concerns of the local authority are that even if Mother is true to her word now and has no intention of destabilising the placement, the concern of the local authority is that the mere fact of contact may destabilise this placement.  The evidence of the social worker at C133 of the bundle, paragraphs 15 and 16 set out the distress and reluctance that both children showed in January and February 2013 when the local authority social worker tried to facilitate contact between the boys with their mother.  In fact, R refused to attend the January and February contact altogether and became very distressed.  I am told in that evidence that the children only attended the last contact because the foster carer attended that contact with them.  I do not intend to read those two paragraphs out but I place weight on the distress caused to these children by that contact.  Therefore, the adopters and the child care professionals are extremely concerned about the disruption of this placement by any direct contact.  Mother has given evidence on oath that she supports the placement and promises not to disrupt the placement.  Even if she is genuine about this, these children have been found to have suffered significant harm in her care and the concern of the professionals and the adopters is the fact that contact will disrupt the placement due to the children being emotionally unsettled or confused by it.  It may trigger anxiety in them in respect of why contact has resumed when in their minds they are settled and in their forever family.  There is also concern that with the history of litigation Mother may say that she has accepted this adoption and may even really mean it but she may never really be satisfied with this level of contact and may constantly push for more contact over the years.  

16.	On behalf of Mother, Ms. Grieve argues that I can find that this case falls into the extremely unusual category that I would have to find to impose contact on these unwilling adopters.  She argues that I should not rely too heavily on the distress that the children showed in early 2013; they were unsettled at that time.  They have now had a long time to settle into their placement. They can be reassured that contact does not mean they are moving from that placement and that Mother has undergone a significant psychological shift, something that Mother herself calls her “transformation”.  Mother supports adoption, she will abide by any conditions and therefore I should see this as one of those extremely unusual cases.  

17.	When I consider the addendum report of the children’s guardian he has said the following.  I have in particular looked at paragraphs 18 to 25 of the addendum report and that is at E59 and 60 of the bundle.  Again, I do not want to read out the entire paragraphs but perhaps paragraphs 21 and 22 are needed.  Mr Slade has said:
“The adoptive parents assured me that they will listen to the wishes and feelings of the children as they grow older in all matters pertaining to their development.  If they do not respond appropriately to the wishes expressed by the children in that regard the boys might exhibit behavioural problems.  The adoptive parents are willing to seek professional help on this issue if they feel some direct contact with the birth parents becomes appropriate.  I think that the children are highly likely to be confused and distressed if direct contact becomes prescriptive by means of a court order.  The children do not require a physical link to their mother and maternal family to have an understanding of them.  I would be concerned as to the effect on the children of ongoing direct contact between Miss S and the boys given their reported reactions to contact immediately prior to and following the wish you well contact.  As noted at paragraphs 9 and 10 above, I am concerned that the positive, trusting relationship the boys have formed with the prospective adopters would be undermined by being forced to see their mother when it appears clear they do not want to see her at this time.”

18.	I have considered section 1(3) of the Welfare Checklist.  It seems to me going through those factors these children have made it very clear they want to remain in this placement and sadly they have also made it clear that they do not require or want direct contact with their mother at the moment.  Once again their pressing need is for stability, security and permanence and anything which undermines or potentially undermines that security cannot be seen to be in their best interests.  Mother accepts that at this stage she is not going to look after these children and that the adoptive parents must be given the respect, space and liberty to care for these children because they are now in law their own children. Looking through the section 1(3) checklist, I cannot identify anything which leads me to take a view that it would be in the best interests of these children to impose a contact order on these children and adopters which, in my judgment brings with it an unacceptably high risk of destabilisation of the placement at this time, even if Mother is true to her word that she will not deliberately disrupt this placement.  

19.	I come to this decision with a heavy heart.  It is always extremely sad for a birth parent to be told that at the present time there are no plans for direct contact.  However, I have applied the law in this case, I have looked very carefully at the evidence and in my judgment it is not in the best interests of these children to make a section 8 contact order and I refuse to do so.