England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
(His Honour Judge Bloom QC)

		The Royal Courts of Justice Strand London WC2 Thursday 4th July, 2002

1. LORD JUSTICE THORPE: Mr Justice Wall will give the judgment.
2. MR JUSTICE WALL: This is one of those poignant Family Division cases which occur from time to time when short-term local authority foster parents are given a small child to care for until such time as the child's future is decided in public law proceedings. Often those proceedings take longer than anticipated, and by the time they come to be decided the foster parents have formed a profound bond with the child and find themselves unable to give him or her up. Thus when the care proceedings reach their conclusion and the child is freed for adoption, the local authority put forward prospective adopters who have been approved through the conventional channels and require the child to be handed over. The foster parents in question, as I say, feel unable to give up the child and themselves apply to adopt.
3. In this case the little girl is A S O, who was born on 24th January 2001. The foster parents are Mr and Mrs S. They have two boys of their own, now aged 13 and ten. They were given the care of A at the age of five weeks, when she was taken into local authority care away from her abusive parents.
4. The care proceedings which were then instituted were throughout dealt with by His Honour Judge Bloom QC, an extremely experienced as well as -- if he will allow me to say so -- a very humane family judge.
5. The outcome of the care proceedings was, in reality, inevitable. There was no way in which these parents were going to be able to look after their child. But, as I already indicated, the proceedings took some time. It was not until 7th March 2002 that Judge Bloom, sitting in the Manchester County Court, was able to make a care order. He also made an order under section 34(4) of the Children Act 1989 and he freed A for adoption.
6. On 18th March 2002 the adoption panel approved the match of A with Mr and Mrs D, her prospective adopters. That, of course, immediately meant that the local authority was in a position to place A with them. Because of the time that had elapsed, Mr and Mrs S were able to give notice that they intended to apply for an adoption order and they issued their application on 25th March. That immediately meant that the process of handing A over to her prospective adopters had to be put on hold and an application was made to His Honour Judge Bloom on 21st May 2002 by the local authority for the hearing of their application for an order, under section 30 of the Adoption Act 1976 that it was their intention not to allow A to live with Mr and Mrs S any longer. The judge listed the application for 14th June. He directed a report by the guardian. There was already an independent social worker report by Janet Ollier commissioned by Mr and Mrs S.
7. The judge heard the case on 14th June. It took all day. Indeed, it lasted until, we were told on the last occasion, 6.00 o'clock in the evening. The judge, in an extempore judgment of which we have only a note not a transcript, directed that the child, in effect, should be handed over to the local authority. He refused permission to appeal on 20th June.
8. This, therefore, is an application by Mr and Mrs S for permission to appeal against that decision. We heard it last week. It was, if I may say so, extremely ably argued by Mr McFarlane QC on behalf of Mr and Mrs S. But we came to the conclusion last week that permission to appeal should be refused. Time did not permit us to give our reasons on that occasion and so we do so today.
9. As I indicated earlier, the version of Judge Bloom's judgment we have is not a transcript. It is a note. I bear that very fully in mind when considering the reasons given by the judge. We were provided with a most helpful skeleton argument by Mr McFarlane and he was, on the material available and on the documentation, able to make a number of sound points.
10. The leading case on the subject is a case called Re C (A Minor) (Adoption) [1994] 1 WLR 1220. It was referred to by the judge extensively in the course of his judgment. But it does appear -- and this is a fair point for Mr McFarlane I think to make -- that the judge may well have put the test against Mr and Mrs S too high in Re C terms. It may also be that the judge paid, notionally at least, too great an attention to the human rights of the parents, and in particular to what they might or might not need to be told in relation to the adoption process. Given that there had been a freeing order, they were former parents and would not know when the adoption order itself had been made.
11. Mr McFarlane also laid, of course, heavy weight on the bond which Mr and Mrs S had formed with the child, and pointed out that whilst Judge Bloom had been under the impression that given the pressure of work in Manchester and the absence of sufficient judges to do it, the case could not be heard for a very substantial period of time. Mr McFarlane himself had been able, in a conversation with the Family Division Liaison Judge, Black J, to secure a hearing of the adoption application by Mr and Mrs S before an experienced Circuit Judge, Her Honour Judge Kushner, in Manchester in some three or four weeks' time. Accordingly, Mr McFarlane was able to argue one of the principal premises upon which the judge had founded his judgment had proved to be unsound; the judge taking the view that if that length of delay was inevitable, the bond would be such that it would be impossible to break it in the interests of the child without causing her serious psychological damage.
12. However, there was one point which in my view is effectively the only point in the case. It is, in my judgment, unanswerable and it is this. The judge found that there was a real possibility of unintended contact between the natural parents and the foster parents, and thus A. Further than that, he was satisfied that the father was a dangerous man. I quote from a passage in the judge's judgment, paragraph 33, onward. As recorded in the note the judge said this:

"The father is a dangerous man. He is a convicted Schedule 1 offender. He is violent and unpredictable and has made threats. He had frightened off family members [and he gives two names] that is the [Cs] and the [Hs], and he worries and frightens social workers. He follows people. The child's guardian says that he is doing it still in respect of the natural mother's father.

The father has threatened to `brick' the house of the H's if he felt that [A] was not being cared for properly. The mother presents a different threat. She wants to insinuate herself back into the life of [A]. She knows where Mr and Mrs [S] live and she hopes for contact. She has threatened to abscond with [A] or to kidnap [A]. Her relationship with the father is unpredictable and volatile.

I am satisfied that there is a serious and substantial risk of disruption by threats or attendance at the [S's] home. This is a very real worry. It is risk that I cannot ignore. I am not sure that the [Ss] really do appreciate this risk".

13. Mr and Mrs S's answer to that was, "Well, if that is a risk we'll move home. We'll go away and find somewhere else to live." But equally, in my judgment, that does not meet the problem. It does not meet the problem for several reasons. One is because the maternal grandmother had asked the guardian, whether Mr and Mrs S were intending to apply for adoption. The guardian was put in a difficult position and had to lie about it, and the judge commented that the guardian did the right thing because the alternative would have been to have prejudiced the position of Mr and Mrs S, although the guardian felt uncomfortable. But the risk of the parents finding out that Mr and Mrs S are A's adoptive parents remains very much alive.
14. Secondly, Mr and Mrs S have two boys aged 13 and 10 who are well into their education in local schools. It would, in my judgment, be contrary to their interests and those of their family were they to have to move. But more relevant in the context of A, as the judge found, even if they did move there was nonetheless the real possibility of contact between the parents and the family. Plainly it is not in the interests of A to be subjected to this form of disruption. The judge found -- and in my view he was entitled to find when he balanced the various factors -- that anonymity was fundamental in adoption proceedings because experience had shown that parents are liable to find a placement and to disrupt it. He found the risk here to have been greatly increased, because of what we know about the temperament of these natural parents and because they know the identity of Mr and Mrs S. The judge concluded that the risk was so substantial that it made the prospect of an adoption order in favour of Mr and Mrs S remote. He balanced in the equation the love and devotion Mr and Mrs S had given to A and the fact that A had formed an attachment with them. Movement to a new home will be a disruption for her and there will be confusion for her. But she has a good attachment and is well adjusted and she has the capacity to make new attachments. The judge concluded:

"I therefore take the view [he concluded] that there is only a small chance of the adoption application succeeding. This is little more than a nebulous application and I do not believe that the positive will outweigh the detriment to A in postponing proceedings for 5 months and with the eventuality that Mr and Mrs [D] will be lost to [A]."

15. Even though, as I indicated, he was wrong about that period of time, the substantive point as to the likelihood of A being discovered, the parents' knowledge of Mr and Mrs S's whereabouts, and the likelihood of the parents disrupting the placement (with violence in the father's case) these were all, in my judgment, factors sufficient to make the adoption application almost bound to fail.
16. Mr McFarlane has had the great courtesy to be here this afternoon. Speaking for myself, I would like him to convey to Mr and Mrs S my feelings about them. The judge, in a typically compassionate passage in his judgment at the conclusion, said that there would need to be considerable support for Mr and Mrs S and that they would need support and counselling in the difficulties in which they now find themselves. I agree with that. However, I think the message I would like to convey to them is that they have in fact played an extremely important role in A's life. They have given her care, succour and love at a time when it was vital that she should have high quality care. They have provided her with stability at a crucial time in her development. The fact that she will be able to move on to her new adoptive parents, in my judgment relatively easily, will be in large measure due to the care they have given her. She will not remember them, but nevertheless Mr and Mrs S have done her an enormous service by the care which they have given to her. I hope that that will be of some comfort to them in the loss which they undoubtedly feel.
17. I am satisfied that the course proposed by the judge was entirely right for A. Despite my sympathy for Mr and Mrs S, I am quite satisfied that this appeal would have no prospect of success, and that therefore we were right last week to make our order refusing permission to appeal.
18. LORD JUSTICE THORPE: I agree.
ORDER: Application for permission to appeal refused. (Order not part of approved judgment)