England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
(His Hon. Judge Eccles QC)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18th December 2003

Lord Justice Ward :

1. The story behind this appeal is sad but straightforward. The issues before the judge, His Hon. Judge Eccles QC sitting in the Coventry County Court, were:-

i) should he make a care order in respect of S who had been born on 23^rd June 2002 and who is now only 18 months old; and

ii) should he free S for adoption; or

iii) should he accede to his father's application to adjourn those applications.

2. After hearing evidence over three days he decided on 26^th September 2003 to grant the adjournment. The appeal is brought by S's guardian with permission granted by Hale L.J.
3. S is the youngest of four children. The father has an elder son SB, now 13. SB's mother died when he was about a year old and the loss of his wife led to the father having a mental breakdown from which he has not recovered. He has a bipolar affective disorder which it has proved difficult to control. Sadly S's mother is no better. She has a vulnerable dependent personality disorder which has led to her having many hospital admissions and her prognosis is not good. These unhappy parents met about ten years ago. They never married. They had their first son M in 1997, so he is now 6. SM is 4 and G is 3 years old. The parents have not been able to cope with them. The families have stepped in to help. As a result the boys SB, M and SM live with the paternal grandparents who have a residence order in their favour. G resides with her maternal grandmother. Father now has parental responsibility for all children.
4. S was born after the relationship between his parents broke down. Mother and the man with whom she was then living managed to look after S for only seventeen days. He was then accommodated by the local authority and placed with foster parents Mr and Mrs A on 11^th July 2002. There he has remained. The local authority brought care proceedings and the first interim care order was made on 1^st August 2002 and has been regularly renewed since then.
5. The local authority diligently made enquiries of the two families to ascertain whether there was any prospect of S residing within the family. The paternal grandmother, described by the judge as "a woman of considerable integrity and great understanding of the care of children", agreed once again to come to the rescue and care for the baby with the assistance of the father, who was then also living with her. The family's efforts collapsed in October when the father, who was increasingly worried that he might not be S's father, suffered a serious breakdown in his health, becoming increasingly paranoid and exhibiting a number of psychotic symptoms. He was admitted to hospital and could not look after S. The paternal grandmother, no doubt with many misgivings, ruled herself out as his carer. The judge found it to be a "significant fact" that they could identify no other member of the family to provide that help.
6. So far as the mother was concerned she made some desultory attempt to offer herself but her fragile health simply did not permit it.
7. In the absence of any request by any other family members to be assessed as possible carers for this baby, the local authority decided that adoption was the only viable alternative to secure S's future welfare and in January 2003 the adoption panel approved the local authority's plan to seek a freeing order. That decision was communicated to the family in about February 2003. Mr and Mrs A were approved as adopters in April. As the judge found in paragraph 24:-

"… It remains a fact that no thought was given by the (paternal) family members to the consequences for S should he remain with the As for any length of time with Mr and Mrs A being led to believe that there was no-one else who could care for S."

8. By the end of May father was feeling a little better. He voiced his opposition to the adoption but could offer no better solution than long term foster care with contact three or four times a year. The mother was prepared to give conditional consent to the adoption.
9. Then in July 2003 there was a new development. At a paternal family party, the father's cousins, Mr and Mrs C, learning of S's plight put themselves forward as potential carers for S to keep him in the family. In the second week of August 2003 they made an approach to the local authority to be assessed for their fitness to assume that responsibility. Both the local authority and the guardian ad litem felt that the offer had come too late.
10. Thus it was that the father applied to the judge to adjourn the care proceedings and freeing for adoption proceedings when the case came before the court on 11^th September.
11. The judge decided that "in assessing the merits of this application I have had in effect to conduct a final hearing in order to decide what weight to give to all the considerations relied on by the parties".
12. He therefore heard the evidence of Ms Bateman, the social worker, and Mrs King, the child's guardian. He found them to be:-

"… good professional witnesses with S's interests well in mind. … Mrs King was more forceful than Ms Bateman and supported her views about the risk to S if his attachment to Mr and Mrs A had to be broken by reference to academic research that had not been put in evidence by any expert witness. Indeed there was no expert psychological evidence … My judgment in this case is that Mrs King was perfectly well qualified to form a view about S's attachment to the As and the risks inherent in breaking it without necessarily relying on academic works and I approach her evidence on that basis. Ms Bateman was a sensible and careful witness whose accuracy in recording relevant events and conversations I accepted."

13. He found the father to be:-

"honest and decent but still fragile and vulnerable and significantly dependent on his mother when it came to judgments about what should become of S".

14. The paternal mother was:-

"a powerful influence within the family … and very subjective about the merits of keeping S within his birth family. As S's grandmother she cannot be blamed for the strength of her feelings …"

15. Importantly he heard evidence as well from Mr and Mrs C. Of them he said:-

"Mrs C was very impressive. She was sensitive to the needs of children, genuinely willing and unselfish in putting herself forward as a potential carer for S and a thoughtful and mature witness. Mr C was also genuine and honest in expressing his wish to bring S into his family but I was not convinced that three days of discussion had enabled him fully to think through and to come to terms with the size of the task he was agreeing to in taking on his wife's cousin's son who, at the date of this hearing, does not even recognise his father but is attached to another family. I accept the evidence of both of them that they wanted to help disadvantaged children in putting themselves forward as foster carers, and plainly the local authority accept their qualities in this regard in agreeing that they should be eligible to foster children from the ages of 3 to 7."

16. He did not hear from Mr and Mrs A but he accepted the judgment of Ms Bateman and Mrs King, in the absence of challenge, that:-

"Mr and Mrs A have qualities as high as any known to the witnesses in terms of their personal integrity, awareness of child welfare issues, and commitment to securing the best possible outcome for those children committed to their care including S. They have as I was told adopted another child and that child is now part of their family and S is unaware of any difference between them."

17. Those, said the judge, were the circumstances in which the adjournment was sought.
18. Since his approach to that question is under criticism, I should begin by setting out what the approach should be when one is dealing at a single hearing with applications not only for a care order but also for a freeing for adoption order. Are the two applications separate and distinct requiring individual assessment or is this a pot pouri in which various elements are randomly mixed? It is clear to me both as a matter of statutory interpretation and on authority that the latter approach is impermissible. The freeing application was made pursuant to s.18 of the Adoption Act 1976 which provides:-

"(1) Where, on an application by an adoption agency, an authorised court is satisfied, in the case of each parent ... of the child that –

(a) …

(b) his agreement to the making of an adoption order should be dispensed with on a ground specified in s.16(2), the court shall make an order declaring the child free for adoption.

(2) No application shall be made under ss.(i) unless –

(a) it is made with the consent of a parent or a guardian of a child or

(b) the adoption agency is applying for dispensation under ss.(1)(b) of the agreement of each parent or guardian of the child, and the child is in the care of the adoption agency. (Emphasis added.)

(2A) For the purpose of ss.(2) a child is in the care of an adoption agency if the adoption agency is a local authority and he is in their care."

19. Now I accept, of course, that pursuant to s.31(11) of the Children Act 1989 a care order includes an interim care order, but commonsense dictates that no child will be freed for adoption until the care proceedings have been determined. It is inconceivable that any court would assume the jurisdiction to make a freeing order simply because an interim care order has been made giving rise to the possibility that within a matter of weeks that interim care order could be discharged and the child returned to the parents.
20. Binding authority is to the same effect. First there is Re O (Adoption: Withholding Agreement) [1999] 1 F.L.R. 451, 470 where Swinton Thomas L.J. said:-

"… in a case such as the present where the child's permanent home is very much in issue, in my judgment, it is logical and correct to take the issues in sequence and for the judge to arrive at a conclusion as to where the child's permanent home should be and then, in the light of that conclusion, arrive at the further conclusion as to whether or not the parent's consent to adoption has being unreasonably withheld."

That was an adoption case but the approach should not be different. Nor was it held to be different in Re D (Simultaneous Applications for Care Order and Freeing Order) [1999] 2 F.L.R. 49 at 53 per Thorpe L.J.:-

"As a matter of ordinary sense, where a court considers an application for a care order together with an application for a freeing order, the application for the care order is the primary application. First, the court has to consider whether the threshold criteria have been established. … Thereafter, the judge has a restricted function to consider the consequences for the child. In this case the consequence advanced by the local authority was preparation for adoption. The judge did not share the local authority's conviction. Accordingly, he had the opportunity and the duty to express his reservations and to invite the local authority to reconsider a plan which he considered unwise. But for the judge to have said that if a freeing order is not made then a care order cannot be made is plainly wrong. That error seems to have contaminated his decision to determine these applications in an order that was plainly back to front."

21. It follows that the proper course for the judge to have adopted was to have dealt with the care order first and only if a care order was made to have turned to the freeing application. The issues in summary are these, and must be decided in this order:-

i) Was the s.31 of the Children Act 1989 care threshold crossed? In this case it was common ground that S was likely to suffer significant harm attributable to the care likely to be given to him if the order were not made not being what it would be reasonable to expect a parent to give him. Here very sadly the mental infirmities of the parents rendered them incapable of caring for their son.

ii) If the threshold was crossed, what order should the court then make, the welfare of the child being the paramount consideration in determining that question. The court must consider the full range of powers available to it (s.1(1)(3)(g)) and then decide whether to make a care or a supervision order (s.31), or a residence and/or contact order (s.8) or even make no order at all if that would be better for the child (s.1(5)).

iii) The essential question for the judge is to decide where the child should live. If a ready and convincing answer is not available on the evidence before the court, then the judge will have to ask himself the further question whether or not an adjournment would secure the obtaining of additional evidence, properly admissible, to resolve any doubts and difficulties. Once the evidence is closed, the judge simply has to decide what order to make and to give reasons for making it.

iv) The case before us demonstrates the need to say a further word about the relevance of the care plan. The local authority are required to file such a care plan to explain how they propose to manage the child if placed in their care. The effect of a care order would be to confer parental responsibility upon them. The scheme of the Act is to give the local authority power to take the necessary decisions once the care order is made and the court has no supervisory role thereafter. At the hearing of the care application the judge can approve the care plan if so minded, he can agree with part and reject part, and he can even express his fundamental disapproval of it. If he does disapprove, he can ask the local authority to think again and, given the spirit of co-operation that exists between the local authorities and the courts, that request (for it is no more than that) is not likely to be ignored. But if there is an impasse, the judge has no power to impose his will upon the local authority and he may find himself in the uncomfortable position of voicing his disapproval but nonetheless being forced, in the absence of any viable alternative, to place the child in the care of the local authority. The court's only control can be in appropriate cases through a contact order.

v) If, but importantly only if, a care order is made, then the court can turn to freeing for adoption and ask whether, in the light of the circumstances in which the care order is made, and in the light of all the circumstances generally, the agreement of the parents to the making of the adoption order can be dispensed with. In this case the question was whether the father was withholding his consent unreasonably.

22. Mr Wraight for the child's guardian and Mr Hershman Q.C., who did not appear below, for the local authority submit that the judge erred in principle because he failed to deal with the care application first and allowed the adoption question to dominate and determine whether or not an adjournment should be granted. Miss Scriven Q.C., who did not appear below, realistically recognises the force of that submission and does not seek to uphold the judgment in the way it was reached by the judge.
23. The judge was for very understandable reasons greatly impressed by the paternal family, grandparents, uncles and cousins, and was unstinting in his praise of them. Having acceded to the father's request for an adjournment, he concluded his judgment saying:-

"I hope that it is apparent that the father and his family should not raise their hopes too high, nor should Mr and Mrs A feel that my decision involves any concern about the care they offer S. It is an arguably generous decision to afford a very caring birth family the best opportunity of arguing their case before me."

Were there no error of approach and this were a simple straightforward challenge to an exercise of discretion, I may have found it difficult to say that an eleventh hour reprieve was plainly wrong. But unfortunately his approach was flawed, and, there being an error of principle, the whole exercise of discretion is tainted.

24. He had correctly identified in paragraph 34 of his judgment that an application to adjourn involved a number of questions four of which he enumerated. First was the length of delay, second was the likely effect of that delay on S, third was the reason advanced for the postponement and fourth was the assessment of what difference the further evidence sought to be obtained might make to the outcome.
25. He found the delay involved in obtaining the necessary assessments and in obtaining a date for hearing to be at least six months and even more. As for the effect on S he was satisfied that the child, then 15 months old, would be completely unaware of what was happening but that there was "a small risk of some distress [the disappointment and anxiety for Mr and Mrs A] being communicated to S". He was satisfied the purpose in seeking the adjournment was perfectly legitimate and within the need to allow a fair trial under Article 6 of the Human Rights Convention and pay due respect to the father's private life and family under article 8. He held in paragraph 41:-

"I have therefore, it seems to me, to consider not only the motives of those supporting the application, which in this case are honest and well meaning, but the objective basis for asking for time to carry out the assessment having regard to the best interests of S and the difference that an assessment of Mr and Mrs C might make to the outcome. In this connection there was cogent evidence both from Mrs King and Ms Bateman that it is overwhelmingly in S's interests for him to be adopted, and that a favourable assessment of Mr and Mrs C cannot alter that judgment. There is no evidence to the contrary before me at this stage, and in any event it is compelling evidence in my judgment."

26. He then summarised the reasons given by the local authority and the guardian why S should be adopted, which shows he had strayed from the care question to the adoption question. I shall advert to some of these reasons later.
27. Then in paragraph 43 he held:-

"So, in the absence of any other evidence, there is no viable way in my view of securing S's short term and long term welfare except by ensuring his continued placement with Mr and Mrs A." [I interpose to observe that he was correctly back onto the care question]. "The question then arises, having regard to the cogency of the evidence of Mrs King and Ms Bateman, whether there is any realistic prospect of the court coming to a different view if Mr and Mrs C are assessed to be appropriate kinship carers. At this stage of the case, as I have indicated, I find the evidence of Mrs King and Ms Bateman compelling, and it is difficult to see what is likely to emerge in an assessment of Mr and Mrs C to bring about a different outcome. Mrs Gibbons [counsel for the father] submits that in the course of assessment it may be revealed that Mr and Mrs C have such personal qualities that they will be able to manage S's move from one attachment to another without causing him significant distress. It seems to me very speculative to give much weight to that chance.

44. Applying the conventional analysis therefore to an adjournment application, it would be difficult to conclude that in that case it would be "planned and purposeful", and indeed it would involve some, though minor, risk of harm to S in the prospective adopters' home if the decision was delayed." [I again interpose to comment that I would have expected the conclusion then to follow that the adjournment was denied but instead the judge moved immediately to adoption.] "The real problem, however, it seems to me, is that the purpose of proceeding to a final hearing is to enable the court if otherwise satisfied on the evidence to make the freeing order. Here the court can only do so if it dispenses with the father's consent on the grounds that it is being unreasonably withheld. If as here, the father withholds his consent and his decision falls within a band of reasonable responses to the situation that he and S and other family members find themselves in, having paid due regard to S's welfare, then the court is in the unsatisfactory position of making a care order without being able to secure the implementation of the care plan. In that event the court is no further forward in securing the best outcome for S's welfare. If consent, however, has been withheld unreasonably the court can then of course proceed to make the freeing order.

45. At this stage of the case, therefore, it seems to me that I have to form a view as to whether the father would be withholding his consent unreasonably … If the reasoning of the Court of Appeal in Re O (Adoption: Withholding Agreement) [1999] 1 F.L.R. 451 is applied, and the decision is that placement with Mr and Mrs A secured by adoption is the proper course to take to secure S's future, it would not be open to the court to find that [the father] was reasonable simply because he is free of blame and his mental illness has prevented him from caring for S and Mr and Mrs C came forward late in the day. The question, however, it seems to me is whether, if there is an opportunity for Mr and Mrs C to be assessed that does not jeopardise S's welfare to a relevant degree, he is withholding his consent unreasonably. In my judgment it would be artificial to proceed as if the application to adjourn had been refused, and then hold that in the light of the analysis in Re O, supra, [the father] was withholding his consent unreasonably."

28. As I indicated in parenthesis in the citation of those passages, the judge seems to have been inclined to grant the adjournment but for his finding that the "real problem" was the need to be able to make the freeing order. He thought it would be "artificial" to refuse an adjournment, with the inevitable consequence that the care order would be made, and with the further consequence that he would have to go on and decide the freeing for adoption issue. That he was concerned to give the father every opportunity emerges from his conclusion in paragraph 49:-

"My conclusion is that where the court is being asked to remove a child permanently from his birth family, in a case where the extended family is looking after all the other children, [the father's] right under Article 8 to expect the local authority and the court to assist him to maintain his family life with S tipped the balance in favour of a finding that he is not being unreasonable in withholding his consent, pending an assessment of Mr and Mrs C, and in the absence of appreciable risk of harm to S." (I add the emphasis to show the dominance of the adoption question when the proper focus of attention should have been on where the child was to live.)

29. So he granted the adjournment and gave directions for an assessment of Mr and Mrs C to be undertaken by a social work consultant and for a psychological report to be prepared on the issue of the child's attachment. It seems to me that the judge may have allowed himself to be led into assuming that he had somehow to approve the care plan for adoption and thus to allow the adoption question to dominate what was essentially a question about whether S should live with Mr and Mrs A under a care order or whether he should live with Mr and Mrs C under a residence order. Those were the care questions and they needed separate answers. To adopt the words of Thorpe L.J. the judge determined these applications in an order that was plainly back to front and that error contaminated his decision. It means the appeal must be allowed.
30. The question then is whether we remit the matter to the County Court or decide for ourselves. It is common ground between the parties that we should not incur further delay but should exercise our own discretion.
31. In his respondent's notice, the father advances three grounds, persuasively argued on his behalf by Miss Scriven, for allowing this last gasp opportunity for this admirable family to maintain their link with S. She submits first that a placement outside the natural family and without direct contact to his parents for the foreseeable future is such a draconian course as to amount to an interference with the respect due to the father's, and S's, right to family life protected by Article 8 of the European Convention. As Hale L.J. pointed out in Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, 621:-

"There is a long line of European Court of Human Rights jurisprudence on that third requirement ["necessary in a democratic society"], which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."

32. Family law jurisprudence before the implementation of the Human Rights Act, but with an eye upon the provisions of the Convention, had established in a long line of cases following Re KD (A Minor) (Ward: Termination of Access) [1988] 1 A.C. 806 that the natural family should not be displaced without cogent reason, the question being determined by the child's welfare. There is, therefore, no essential difference between the two approaches. I am prepared to accept that the door should not be shut on the wider family's involvement in caring for the child unless the welfare of the child cried out for a final decision to be taken.
33. The second point advanced is that the judge had some evidence from the social worker and especially from the child's guardian which enabled him to form some view about the attachment S had formed to Mr and Mrs A and the harm to him from breaking that attachment. But Miss Scriven submits there was no psychological evidence available to point to the long term advantages of living within the natural family.
34. Her third submission is that set against that long-term benefit there is only the minimal risk of harm to S occasioned by delay whilst the assessments are conducted.
35. I see the force of each and every one of those submissions. The delay may not have been so long as significantly to have harmed S but the fact remains that on the judge's view of the admirable Mr and Mrs C an assessment of their worth would add little because their credentials had already been established from his own observation of them and knowledge of their family background. The chance that their personal qualities would so shine through as to make a difference was regarded by the judge to be "very speculative". The judge held that it was difficult to see what was likely to emerge from that assessment to bring about any different outcome to the demand that S stays where he is. The sad fact is that Mr and Mrs A are the only parents this baby knows. We know little of the mother's contact but she plays no part in this appeal and has resigned herself to the inevitability of the adoption. This unfortunate father has only seen his son twice. Of course S will suffer some confusion in later life as he confronts the fact that he is an adopted child and that his brothers and sister live in different homes with his grandmothers. The confusion will not be much lessened by his questioning why he lives with his second cousins. Any such future harm has to be balanced against the benefits of continuing to grow up as a child of the only family he has known. His attachment to Mr and Mrs A is totally secure because they have cared for him since he was seventeen days old. Their admirable qualities are beyond question. If ever, therefore, an adoption has a prospect of success, this adoption is it. Sadly the father will never be able to offer a home for S in the foreseeable future and his right to respect for his family life and so to bring up S is no less offended, or not much less offended, by S's living with Mr and Mrs A as it would be by his living with cousins. The cousins are members of the wider family but full respect to the father's right is only afforded if father and child are together. On a careful reading of the judgment I am quite satisfied that if the judge had not been sidetracked into considering the adoption, and if he had dealt with this as a care application pure and simple, he would have refused this adjournment and made the care order, that is the order I would make.
36. It is necessary, therefore, to consider whether father is unreasonably withholding his consent to adoption. Adoption is clearly in the interests of this boy because it will secure his welfare during his childhood and there is no difficulty in forming the preliminary view that s.6 of the Adoption Act 1976 is satisfied. The judge himself seems to have accepted that if the placement with Mr and Mrs A secured by adoption was the proper course to take to secure S's future, then it would not be open to the court to find that the father was reasonable simply because he was free of blame and that his mental illness prevented him from caring for S. I agree. If one asks whether a decision to veto the adoption comes within a band of possible reasonable decisions judging the question objectively, then applying the current values of our society, the advantages of this adoption for the welfare of S are overwhelmingly strong enough to justify overriding the views and interests of this luckless father. I have no difficulty in dispensing with his consent, sad though that conclusion will be for him.
37. It follows that I would allow the appeal, commit S to the care of the local authority and order that he be free for adoption.

Lord Justice Mantell: I agree.

Lord Justice Carnwath: I also agree.