Case No.  NE125-13

IN THE NEWCASTLE UPON TYNE COUNTY COURT 

The Law Courts
The Quayside
Newcastle-Upon-Tyne
NE1 3LA

Friday, 7th February 2014

Before:

HER HONOUR JUDGE HUDSON

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In the matter of:

Re:  W (A Child)

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Transcribed from the Official Tape Recording by
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Counsel for the Local Authority: MR O’SULLIVAN

The Mother appeared In Person

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JUDGMENT
JUDGMENT

1.	THE JUDGE:  This is an application by KQ for permission to oppose the adoption application in respect of SW (S), who was born on 22nd August 2008 and so is now 5 years and 5 months of age.
2.	The adoption application was first listed for a final hearing before His Honour Judge Wood on 9th January 2014.  KQ attended that hearing and indicated her intention to oppose.  His Honour Judge Wood gave directions for KQ to file a statement, with a statement in response from the social worker, and re‑listed the case before me for determination of the application for permission to oppose the adoption on 6th February 2014 as I had been the trial judge who had made orders in the care and placement proceedings in relation to S and her older siblings.
3.	KQ filed a statement as directed.  She had solicitors at the time, who assisted her in doing so.  A statement was then filed from the social worker, Mark Gribbin, who was also the social worker for the children at the time of the final hearing in the care proceedings.  In the event, KQ was not represented at the hearing before me on 6th February 2014.  She did not have legal aid available and had decided the cost was too great.
4.	The statement filed by KQ sets out the changes she relies upon.  The social worker acknowledges that she has made some changes, but puts them in the context of information which he had received from other sources.  I was able to explore these with KQ, who essentially agreed that the social work statement was accurate in what it reported about these issues.  The hearing proceeded on submissions, with KQ taking the oath at the outset of the proceedings.  I heard this case in the middle of a part heard case before me.  For convenience and to avoid delay in both cases, I determined that I would give judgment today, 7th February 2014.
5.	I can deal with the background to the application as follows.  KQ is now 33 years of age.  She has been assessed as having a mild learning disability.  She has had a history of mental health difficulties, mild depression and also a longstanding eating disorder.
6.	S is the fourth of now five children of KQ.  The eldest, R, was 15 yesterday.  He has had complex special care needs since his birth.  He has a severe learning disability, epilepsy and communication difficulties.  S is the youngest of the three children of the relationship between KQ and EM.  The two older children are JW (now aged 8) and GW (now aged 6).  The children were in their mother’s care until 7th August 2009.  At that time S was not quite 12 months of age.  They were placed in local authority foster care at that stage, initially subject to an emergency protection order, following which care proceedings were issued.  S was placed with local authority foster carers who are in fact her prospective adopters.  The circumstances which gave rise to the children’s removal arose out of issues relating to domestic abuse and alcohol misuse, together with concerns relating to KQ’s mental health.
7.	A final hearing was listed before Her Honour Judge Moir in September 2010.  The local authority plan at that stage was placement away from the birth family.  During the course of the hearing the court heard psychiatric evidence in relation to KQ (or KW as she was then), as to the therapeutic work which could be undertaken with her and the prospect that she may then be able to provide care for her children.
8.	The case was unable to conclude due to insufficient court time and it was evident that there was going to be a period of adjournment.  As a result of that, the work which had been recommended was embarked upon and led, in due course, to a plan of rehabilitation of J, G and S.
9.	In July 2011 J, G and S returned to their mother’s care.  At that stage S was approaching her third birthday.  There was a considerable support package made available in terms of social worker/family support worker involvement, psychological support, involvement of a community psychiatric nurse in relation to KQ’s mental health difficulties and her eating disorder, provision of nursery care, health visitor involvement and after-school child care.  Within a short time there were evident difficulties.  KQ was not taking her medication in relation to her depression and ceased her engagement with the psychological support.  She was not cooperating or engaging with the family support worker and care of the children was noted to deteriorate.  There was evidence of continuing association with EM and a series of incidents between them.  During one such episode KQ sustained injuries and the second, which precipitated the children’s return to foster care, arose from behaviour on her part in which she threatened to kill him with a hammer and caused damage to his property.
10.	It was against that background that the children returned to foster care on 4th November 2011.  S was fortunate to be able to return to the previous foster carers (now the prospective adopters).  She was then just 3 years and 2 months of age.
11.	The case then came before me for final hearing in January 2012.  I gave judgment on 5th January 2012.  I approved findings in relation to the threshold criteria.  I made final care and placement orders in respect of J, G and S (a care order had been made in 2011 in relation to Robert).  I have taken the opportunity to review my record of the judgment I gave on 5th January 2012, both before hearing this case yesterday and before giving judgment today.
12.	Contact between KQ and S ended in December 2012 when S was aged 4.  Following S’s return to foster care, and once her foster carers learned the local authority plan had reverted to a plan of adoption, they indicated a wish to adopt her.  They were approved as prospective adopters for S on 15th May 2013.  It is evident from the chronology that I have given that S (now aged almost five and a half) has lived with the prospective adopters from the age of almost 12 months, apart from a period of four months during the attempted rehabilitation to her mother’s care.
13.	KQ has identified the following changes to her circumstances.  Her statement records that she met AQ, who is now her husband, in January 2012.  During the course of representations yesterday she told me that he is significantly older than her, now in his 50s.  He is in employment and a stable family home.  KQ’s statement records that her last contact with EM was in March 2012.  She and AQ married in July 2012.  She became pregnant in 2013 and on 13th October 2013 her youngest child, SQ, was born.  SQ is now coming up to 4 months of age.
14.	There was local authority involvement before SQ’s birth.  The involvement of the local authority led to a child protection plan being put in place in respect of SQ.  She remains in her parents’ care, with the continuing involvement of social care through a social worker (now Elaine Taylor) and family support worker.
15.	In her statement, KQ sets out the following other areas of progress.  She is no longer taking antidepressants as she was previously and she describes herself as recovering from her eating disorder and gaining weight.  She made it clear both in her statement and in the representations that she made before me that she wants S to return to her care and that she would, if successful in that, also seek to oppose adoption applications in respect of J and G which are currently underway in circumstances in which they, too, have been placed for adoption now for some time.
16.	The statement of Mark Gribbin includes information provided to him by Elaine Taylor, SQ’s social worker.  That includes details of the difficulties between KQ and AQ over the Christmas period, as a result of which AQ threatened to leave.  When KQ was first asked about it she is recorded as giving inconsistent accounts, although she accepted ultimately that the information that the local authority had received in relation to this was true.  During the course of the hearing yesterday I asked her about this, to ascertain the extent to which there were factual disputes.  She agreed that what is recorded did in fact happen.  She went on to say that she had told AQ to leave but he had not done so.
17.	The social worker’s statement also records that in January 2014 KQ consulted with her General Practitioner in relation to her eating disorder, asking for further support in relation to it and told the General Practitioner that she was concerned that her relationship would end as a result of these difficulties.  Once again, KQ confirmed during the course of the hearing yesterday that that was the position.
18.	Against this background I turn to the legal framework.  On 5th January 2012 I made a placement order in respect of S pursuant to section 26 Adoption and Children Act 2002.  KQ’s consent was dispensed with in accordance with section 52, in circumstances in which EM does not have parental responsibility for S (he is not named on the birth certificate and he has not otherwise acquired parental responsibility).
19.	Section 47 Adoption and Children Act 2002 sets out the conditions for making an adoption order.  The relevant parts are as follows:

(1)	An adoption order may not be made if a child has a parent or guardian unless one of the following three conditions is met … subject to section 52 (parental etc. consent).
(4)	The second condition is that:
(a)	The child has been placed by an adoption agency with the prospective adopter in whose favour the adoption order is proposed to be made;
(b)	Either
	…
	(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)	The 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 (5) unless satisfied that there has been a change in circumstances since … the placement order was made.
20.	In the application of these provisions I have taken account of the following principles.  Article 8 right to respect for a private and family life are clearly engaged.  There can be no clearer situation where that is the case.  The order proposed is one of adoption, altering the legal relationships for S so that her legal relationships with her birth family are terminated.  Such an order can only be made where it is both necessary and proportionate.  
21.	Orders contemplating non-consensual adoption are very extreme orders of last resort, to be made in exceptional circumstances where nothing else will do and where no other course is possible in the child’s interests: In Re: B (A Child) Care Proceedings: Threshold Criteria [2013] UKSC 33.  I approach this decision on the basis that the less interventionist approach rather than more should be taken unless there are cogent and compelling reasons to the contrary.  
22.	In accordance with Re: G (A Child) [2013] EWCA Civ 965, the court should undertake a global holistic and multi-faceted evaluation of the child’s welfare, taking account of all negatives and positives of the options in question.  Section 47(5) Adoption and Children Act 2002 is intended to provide a real meaningful remedy in appropriate cases.
23.	An application pursuant section 47(5) is considered in two stages: firstly, has there been a change in circumstances; and, secondly, if so should leave to oppose be given.  The first question - whether there has been a relevant change in circumstances - was considered in Re: P (Adoption: Leave Provisions) [2007] EWCA Civ 616 where Lord Justice Wall said:  

‘The change of circumstances since the placement order was made must be of a nature and degree sufficient on the facts of the particular case to open the door to the exercise of judicial discretion to defend the adoption proceedings’.  

Whether or not there has been a relevant change in circumstances is a matter of fact to be decided by good sense and sound judgment of the tribunal hearing the application.  
24.	The second question - if there has been a change in circumstances, whether leave should be given - was addressed in detail in the judgment of the President in Re: B-S (Children) [2013] EWCA Civ 1146.  At paragraph 74 he said the court needs to consider all the circumstances, in particular two interrelated questions.  First, the parent’s ultimate prospect of success if leave is given; and, second, the impact on the child if the parent is, or is not, given leave to oppose, remembering that the child’s welfare is paramount at this stage.
25.	I pause to record that the welfare consideration is in accordance with section 1 Adoption and Children Act 2002 so that the child’s welfare throughout his or her life is the court’s paramount consideration.  The extended welfare checklist in section 1(4) of the 2002 Act must be applied, requiring the court to consider, among other factors, the impact on the child of ceasing to be a member of the birth family and becoming an adopted person and the relationship the child has with the birth family, including the likelihood of the relationship continuing and the value of it doing so, the ability and willingness of the birth family to meet the child’s needs and the wishes and feelings of the birth family.
26.	The President set out ten factors relevant to the weighing in the balance of the considerations in any case.

(1)	The prospect of success relates to resisting the adoption and not ultimately having the child restored to the parent’s care.  
(2)	The two questions, the change of circumstances and welfare assessment, are almost invariably intertwined.  
(3)	Once change is established and solid grounds for seeking leave the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave, remembering that adoption is a last resort and the child’s interests include being brought up within his or her family.
(4)	The welfare evaluation must take into consideration the pros and cons – a balance sheet analysis is encouraged.  
(5)	A close focus on the circumstances requires evidence.  Typically, as in this case, the hearing will be dealt with on submissions.  
(6)	As a general proposition, the greater the positive change and the more solid the parent’s grounds for seeking leave to oppose, the more cogent or compelling the arguments against based on welfare must be if leave is to be refused.  
(7)	The fact that the child is placed with prospective adopters is not determinative, nor is the passage of time.  The older the child and the longer in placement the greater the adverse impact of disturbing the arrangements are likely to be.
(8)	The child’s welfare throughout his or her life is paramount, looking into adulthood and old age.  The court must not attach undue weight to the short term consequences if leave is given, but must take a medium and long term view of the child’s welfare.  
(9)	Care must be taken not to attach too much weight to the adverse impact on the prospective adopters and, in consequence, on the child.  
(10)	The test should not be set too high.  

The President described the analysis as considering whether the parent has what he described as ‘solid grounds’ for seeking leave.
27.	In addition to Re: B-S Mr O’Sullivan, who represented the local authority at the hearing before me, made reference to two further authorities: Re: L (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1481 and Re: D (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1480.  I have taken those references from the copy authorities provided to me, but – in the light of the pagination recorded above - it may well be that one or other of the citations is incorrect.
28.	Re: L (Leave to Oppose Making an Adoption Order) [2013] EWCA Civ 1481 turns very much on its facts.  Lady Justice Black nonetheless made some observations of general application at paragraph 58.  She considered the position where a child has been placed with adopters for a protracted period, is well settled and remembers nothing else.  The court may well take the view that there has to be a degree of confidence about the birth parent’s ability to provide a home before it can even contemplate assessing the parent’s prospects as solid.  Re: D (Leave to Oppose Making an Adoption Order) [2013] EWCA Civ 1480 provided a further consideration of the application of these relevant principles.
29.	I return to the facts of this case.  My description of events leading to the care and placement orders being made makes it clear that KQ’s circumstances have changed.  She is in a new relationship which is now of two years’ duration.  There is a child of that relationship who is cared for by her parents.  But the picture is not entirely straightforward in my judgment.  There is recent evidence of strain in the relationship and evidence of continuing difficulties in relation to eating on the part of KQ.  There are, in my judgment, changes in KQ’s circumstances which are materially relevant and, in the main, positive.  Her circumstances are certainly better than when the final orders were made in the earlier proceedings.  The solidity of her grounds for seeking leave is tempered by these factors.  I am, however, satisfied that the first limb of the test should be considered to be met in the circumstances of this case so that the welfare analysis is undertaken.
30.	I turn then to the welfare analysis.  I have reminded myself of the relevant factors identified by the President in Re: B-S (Children) [2013] EWCA Civ 1146.  In the present case the changes are generally positive.  There are, however, significant questions on KQ’s own account about the current stability of the relationship and the extent to which her eating disorder is a current issue.  I have already indicated my conclusion that the changes are sufficient to warrant consideration of the second stage welfare analysis, but I am cautious about the extent of the change in these circumstances.
31.	KQ stated her case frankly, both in her statement and her submissions.  She made it clear that she does not think that she does have much of a chance of successfully opposing this application, but she said she needs to feel she has done everything she could to do so.  
32.	Before I go any further I make it clear that I do not doubt her love for S and her wish to care for S and, indeed, for S’s siblings, J and G.  KQ spoke during the course of the hearing of her guilt at Christmas 2013 as, despite her pleasure of having SQ at home, her older four children were not at home with her.  I also accept that KQ would do her very best to provide for S if she were given the opportunity to do so.
33.	Against that background, I look at the prospects of success.  S is now almost 5½ years of age.  She has lived with her prospective adopters since she was 12 months old, apart from the four month failed rehabilitation more than two years ago.  She has had no contact with her birth mother for more than a year.  She is described as extremely settled in what she has known as her home for years.  The impact of any disturbance of these arrangements would be very considerable for S in these circumstances.  There is every indication that it is a highly successful placement with carers who are fully committed to S.  
34.	The disadvantage to S should this application be refused is she will lose the opportunity to be cared for or have any significant ongoing relationship with her birth mother and therefore her extended family, including her younger half-sibling, SQ.
35.	If leave to oppose is granted KQ has made it clear that it is her intention to seek S’s return to her care.  Apart from the huge disruption in removing S from the home that she has known for four out of the five years of her life, there are very significant questions in my judgment about the ability of KQ to care for another child even in her improved circumstances.  The evidence - accepted by her - of recent events demonstrates that her current relationship is under some strain and the issues identified include a potential recurrence of her long term eating disorder.
36.	The advantage to S if permission to oppose were granted and there was successful opposition to the adoption application would be the potential of a continuing relationship with her birth family, either through placement or contact with her.  The option of long term foster care is not, in my judgment, an attractive course for S, who is a very young child who needs permanence and security throughout her life.
37.	I have considered the impact on the prospective adopters of permission to oppose being allowed.  They are professional foster carers.  I have no doubt they are anxious about the current circumstances.  As the President said in Re: B-S (Children) [2013] EWCA Civ 1146, this aspect is not to be given too great an emphasis and I do not do so.  I remind myself that the test for a parent is not to be set too high and that adoption is a last resort and should only be contemplated if nothing else will do.
38.	S is, however, completely settled in the only home she has known.  She is now five years old and very aware of her situation.  She is already part of the family, but her prospective adopters wish to parent her throughout her life, with the legal security for S that adoption would bring.  That is, in my judgment, a significant advantage to S.  
39.	In my evaluation of the competing arguments I have considered S’s welfare throughout her life as my paramount consideration and I have had full regard to the welfare checklist in section 1(4) of the Act.  For the reasons that I have given during the course of my judgment I have reached the conclusion that, despite the changes that KQ has made, her prospects of successfully opposing S’s adoption are minimal.  In the words of the President, they do not have solidity.
40.	Moreover, the welfare arguments in this case are, in my judgment, compelling.  They argue clearly and strongly against granting permission to oppose.  This is, in my judgment, one of those cases contemplated by Lady Justice Black in Re: L, where S’s circumstances argue very strongly against allowing the application to proceed.  I therefore refuse the application for permission to oppose.
[Discussions re permission to appeal against judgment follow]