Strand, London, WC2A 2LL
B e f o r e :
| The Royal Borough of Greenwich
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(by their Children's Guardian, Kieran Travers)
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4th & 5th Respondent
Ms Sally Bradley (instructed by Freemans) for the 1st Respondent
Mr Dingle Clark (instructed by Lillywhite Williams, Dagenham.) for the 2nd & 3rd Respondent
Mr William Metaxa (instructed by Covent Garden Family Law) for the 4th & 5th Respondent
Ms Gemma Kelly (instructed by Hains and Lewis) for the 6th Respondent
Hearings dates: 14th - 17th August 2018
Crown Copyright ©
Mrs Justice Theis DBE:
(1) An application for adoption orders by the prospective adopters;
(2) A deemed application by A and B to oppose the adoption order pursuant to s47 (5) ACA 2002;
(3) A deemed application by C for leave to apply for a special guardianship order (SGO) and thereafter if granted an application for a SGO.
(1) F- allocated social worker
(2) Janet Walker - Independent Social Worker (ISW) who undertook risk assessment
(3) Dr D - Child therapist
(4) Terence Wilson - ISW who undertook assessment of C
(5) C - maternal aunt who puts herself forward to care for the children
(6) A - children's mother
(7) Kieran Travers - Children's Guardian
(1) The first stage of the parents' joint application for leave to oppose the application of the prospective adopters for an adoption order, namely change in circumstances, and if passed
(2) C's application for leave to apply for a SGO and if successful
(3) The second stage of the parents' leave to oppose application and, if granted,
(4) The cross applications for adoption and SGO.
(i) Has there been a change of circumstances?
(ii) If so, should leave to oppose be granted?
(a) the nature of the proposed application for the section 8 order;
(b) the applicant's connection with the child;
(c) any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and
(d) where the child is being looked after by the local authority –
(i) the authority's plans for the child's future; and
(ii) the wishes and feelings of the child's parents.
'23. In short, this court in Re P (Adoption: Leave Provisions)  EWCA Civ 616,  2 FLR 1069 held that, when considering an application by a parent for leave to oppose adoption under s 47(5) the court's decision whether or not to grant leave was governed by ACA 2002, s 1 meaning that the child's welfare throughout his life was the court's paramount consideration. Conversely, this court held in Warwickshire County Council v M that, in the context of an application under s 24 for leave to apply to revoke a placement order, the court's determination is not governed by s 1 and the child's welfare, whilst relevant, is not the paramount consideration.
24. The decisions in the cases of Re P and Warwickshire CC v M are not in conflict. They were determined by the Court of Appeal within five months of each other and Thorpe LJ was a member of both constitutions. The difference in outcome with respect to the two apparently similarly worded statutory provisions arises from the application of ACA 2002, s 1(7). ACA 2002, s l applies whenever a court is "coming to a decision relating to the adoption of a child" (s 1(1)). Section 1 (7) reads as follows:
"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."
25. In Re P in the context of an application for leave to apply to oppose an adoption under s 47, the court held that such a determination was "a decision relating to the adoption of a child", and, because it did not relate to "the initiation of proceedings in any court", s 1(7)(b) applied thereby bringing such a decision under the requirement within s 1(2) to afford the child's welfare paramount consideration. Conversely, the court in Warwickshire CC v M, when considering an application for leave to apply to revoke a placement order under s 24 considered that such an application was one relating to granting leave for the "initiation" of proceedings by an individual under the Act. In consequence, and in contrast to s 47 which merely gives leave to oppose an existing application, an application for leave to apply to revoke does not fall within s 1(7)(b). Further, as was held in both Re P and in Warwickshire CC v M, s 1(7)(a) does not apply to an application which is simply for leave to apply, as such a decision is not a substantive decision to make, or revoke, an adoption order, placement order or contact order under s
26. It therefore followed, in the Warwickshire case, that an application for leave to apply to revoke a placement order is not one to which s 1 of the 2002 Act applies.
27. In the context of the present proceedings, is an application for leave to apply for a residence order under s 29(4)(b) an application for leave for "the initiation of proceedings" or not? It is, in my view, not possible in this context to distinguish between an application for leave to apply to revoke a placement order and an application for leave to apply for a residence order in ongoing adoption proceedings. Both are for the "initiation of proceedings" and consequently an application under s 29(4)(b) falls outside s 1(7) in the same way as this court held in Warwickshire CC v M was the case with respect to an application under s24. It follows that a court is not required to afford paramount consideration to the welfare of the child when determining whether or not to grant leave to apply for a residence order under s 29. There is, however, no reason for departing from the approach described by Wilson LJ, as he then was, in Warwickshire CC v M at paragraph 29 when describing the second stage of an application for leave under s 24(3) once a change in circumstances has been established:
"…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."
28. Finally, in terms of the test to be applied, Miss Meyer's submission that an applicant for leave under s 29(4) must establish, as a first stage, "a change in circumstances", in like manner to the test facing those who apply under s 24 and s 47, is not accepted by Miss Henke. She submits that whether or not there has been a change in circumstances may be relevant in some cases, however, where, as here, the provision applies to "any other person" that class of individuals could include, for example, a natural father of a child who lacks parental responsibility. He, it is suggested, may emerge into the subsequent adoption proceedings late in the day, and have played no part in the "circumstances" which justified the making of the original placement order. Miss Henke therefore argues that there should be a one stage test within which the court will, naturally, look at the previous factual matrix and compare the current circumstances but without the formal structural need for a discrete first stage at which "a change in circumstances" has to be established.
29. There is, on this point, a danger of the court dancing on the head of a pin and considering a difference which, in reality, is without a distinction. In any application of this nature, where the applicant is not simply wishing to have a voice in the proceedings but is seeking leave to apply for a residence order, the underlying factual circumstances, and any change in those circumstances since the making of the original placement order, is likely to be of great relevance. Parliament has, however, held back from introducing an express statutory provision requiring the court to be satisfied about a change in circumstances where the application is for leave under s 29(4), in contrast to the approach taken in the other two provisions. I would therefore step back from holding that there is such a specific requirement where leave is sought under s 29(4). However, when considering whether to grant leave to apply under s 29(4), and when adopting the approach described by Wilson LJ in Warwickshire CC v M, I consider that any change in the underlying circumstances will be of great relevance both when the court assesses the prospects of success for the proposed residence application and when considering the welfare of the child.
30.. I am most grateful to Miss Meyer for the insight that she has brought to the application of the statutory scheme to the unusual circumstances of this case. I agree with her basic submission that the circumstances of this appellant could have been catered for by treating her application as an application for leave to apply for a residence order under s 29(4) for the reasons I have given. If such an application were made there is no discrete requirement for the establishment of a change in circumstances, ACA 2002, s 1 does not govern the determination of the application by requiring the court to hold the child's welfare as its paramount consideration, but the application would fall for adjudication in accordance with the approach described by Wilson LJ in Warwickshire CC v M.
"(i) Prospect of success here relates to the prospect of resisting making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent's care.
(ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.
(iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B (Care Proceedings: Appeal)  UKSC 33, in particular that adoption is the 'last resort' and only permissible if 'nothing else will do' and that, as Lord Neuberger emphasised, the child's interests include being brought up by the parents or wider family unless the overriding requirements of the child's welfare make that not possible. That said, the child's welfare is paramount.
(iv)At this, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, in either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ's 'balance sheet' is to be encouraged.
(v)This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under s 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras –.
(vi)As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be if leave to oppose is to be refused.
(vii)The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.
(viii)The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child 'throughout his life'. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short-term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions)  2 FLR 124, 129, that: 'the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems.' That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing)  EWCA Civ 1233,  1 FLR 677, para .
(ix)Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.
(x)We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para . We have already quoted them but they bear repetition: 'the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.'"
" 'In addressing the second question, the judge must first consider and evaluate the parent's ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent's prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. … In evaluating the parent's ultimate prospects of success if given leave to oppose, the judge has to remember that the child's welfare is paramount and must consider the child's welfare throughout his life. In evaluating what the child's welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child's welfare are such as to lead the judge to the conclusion that the parent's prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) Re D (Children) (Adoption: Leave to Oppose)  EWCA Civ 703,  2 FLR 119. 17.'
 I explained in Re L (Leave to Oppose Making of Adoption Order)  EWCA Civ 1481 (see particularly §45) how the judge hearing the leave application, and considering a parent's prospects of success for that purpose, has to look into the future and do the best he can to forecast what decision the judge hearing the adoption application, who will have the child's welfare throughout his life as his paramount consideration, is going to make. In this way, the factors that are ultimately going to be relevant to the decision whether or not to grant the adoption order are therefore also material at the leave stage.
 If the parent does have solid grounds for seeking leave, the judge has to consider whether leave should nonetheless be refused and this involves a consideration of whether the child's welfare really does necessitate such a course. Here the concentration is on the impact on the child of there being an opposed adoption application."
F– allocated social worker
(i) On 30 May 2016 a legal planning meeting records that the social worker was to 'explore extended family members on both sides i.e. aunts, uncles, grandparents available to take on the care of the children'.
(ii) A case note was recorded on 19 May 2016 from the team manager stating if an ICO was granted the children should be placed in foster care and 'the parents are refusing to provide extended family members details'.
(iii) On 30 May/2 June information is uploaded refers to a 'significant others' documents which lists some of the names and addresses of family members for the mother, the maternal aunt caring for an older sibling is on there, C isn't. At around the same time information was received from another London Local Authority to say that the maternal aunt had an SGO relating to an older child of the mothers.
(iv) On 1 June the father contacted the local authority requesting financial support for child care by his sister but refused to give any details of her. The following day the paternal aunt contacted the local authority asking to be assessed as a carer.
(v) The children were removed from the parents care pursuant to an interim care order on 6 June 2016 and placed with foster carers.
(vi) The meeting between the allocated social worker and F took place on 16 June when it was recorded neither of the parents have put forward any family members for assessment. I note there was no reference to the list of family members that had been uploaded onto the system in early June referred to at (iii) above.
(vii) The first LAC review took place on 17 June 2016, attended by the Independent Reviewing Officer. The notes of the meeting record the 'parents have not put forward any family or friends names to be considered as a possible placement for the boys'. Again, I note no reference to the information detailed at (iii) above. That meeting recommended that the allocated social worker 'explore extended family members for contact and whether or not there is anyone suitable to care for the children'.
(viii) A case note of a home visit on 2 June 2016 by the allocated social worker notes he would be completing a parenting assessment and notes the parents' objections to the paternal aunts assessment but records him explaining to the parents 'that Local Authority's position is that in the event parents are ruled out as possible carers, the LA will always consider placing children with family members'.
(ix) The case notes are noted to record the focus then going forward was the parent's unreliability in attending contact.
(x) The CMO dated 26 August 2016 notes the parents were directed to put forward any alternative carers by 6 June, they have not done so and the paternal aunt will be further assessed following a positive viability assessment.
(xi) the second LAC review was on 7 September which F notes the parents did not attend, F notes in her statement 'which again would have given them [the parents] an opportunity to put forward an alternative carer to the paternal aunt, or the plan of adoption'. There is, again, no recognition of the responsibility on this local authority to take its own steps to assess the possibility of placement with the wider family. This is even more surprising as two of the mother's older children are placed with the wider family and at this time the parents were barely functioning at a basic level in relation to these children due to their own difficulties with drug abuse.
(xii) On 12 October 2016 the plan for adoption of the two children was considered by the Agency Decision maker. He received reports from the allocated social worker and his team manager, the only family member discussed within the minutes is the paternal aunt This is despite the minutes recording that the two older half siblings live with members of the wider maternal family. The plan was accepted and a letter sent to the parents on the same day. F states in her statement 'Had the family felt aggrieved that this plan had been made without C being assessed, they could have made attempts to raise this with the Local Authority, or with their legal representation. There is no information on the system to suggest that they did this'. This somewhat bold statement fails to recognise the realities of the case, namely (i) the failure by the local authority to explore placement with the extended family (other than the paternal aunt); (ii) there is no evidence to suggest the wider family (other than possibly the paternal aunt) were told anything about this decision; (iii) by this stage the history of the parents co-operation within the care proceedings or attending any contact with the children was very limited.
(xiii) F refers to emails she sent in November 2017 to the team manager at the time of the final care hearing and the IRO to ask if they had any recollection of any other family members being put forward, in particular C. It is noteworthy that the IRO records the decision of the first LAC review for the social worker to explore extended family but gives no indication as to how that action was followed in the second LAC review. The inference is that the apparent failure to undertake those enquiries was not put under any scrutiny at the second LAC meeting. This is perhaps illustrated by the failure of the local authority to file a complete genogram in the care proceedings, the one in the papers was done after the commencement of the adoption proceedings.
Ms Walker – ISW and author of risk assessments in relation to placement with prospective adopters or C.
Dr D – Specialised Looked After Child Clinician and Child Therapist
Terence Wilson – ISW who completed SGO assessment of C
'..in the event the of the Court deciding the children should be moved to live within their birth family, [C's] suitability as a carer is recommended very strongly indeed.
I do recommend that the parties allow and facilitate a meeting between the prospective adopters and [C]. In my view such a meeting is likely to reassure the prospective adopters with regard to the character and disposition of [C], to the extent that they may feel disposed towards allowing and facilitating direct contact in the future.'
A - mother
C – maternal aunt
Kieron Travers – Children's Guardian
' a) remain at risk of experiencing the stress of their prospective adoptive carers during these proceedings, (although the carers have handled these difficulties with enormous fortitude and remained child-focussed); b) remain at risk of having their adoptive placement disrupted, were the court to decide that they should move to C; c) remain at risk of having their future contact to maternal family members negatively affected in the aftermath of the prospective adopters having had to go through contested adoption proceedings; and d) of course, most importantly, have lost the chance of being brought up within their birth family. It is acknowledged that the risks a) and c) above have been very significantly aggravated by the data breach.'
Discussion and Decision
'(4) Before making any decision with respect to a child whom they are looking after, or proposing to look after, a local authority shall, so far as is reasonably practicable, ascertain the wishes and feelings of—
(a) the child;
(b) his parents;
(c) any person who is not a parent of his but who has parental responsibility
for him; and
(d) any other person whose wishes and feelings the authority consider to be relevant, regarding the matter to be decided.
(5) In making any such decision a local authority shall give due
(b) to such wishes and feelings of any person mentioned in subsection (4)(b) to (d) as they have been able to ascertain…'