England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LEEDS
HIS HONOUR JUDGE HEATON QC
LS12C05106

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/12/2015

Black LJ:

1. This appeal concerns a young man, D (who was born in February 2000 and is 15 years old) and his younger brother, L (who was born in March 2007 and is 8 years old). Their parents are the appellants. They also have an older brother, R, who is now 18 years old. He makes common cause with his parents in the appeal.
2. The orders against which the parents appeal were made by His Honour Judge Heaton QC and concern the placement for adoption of the two children. By an order dated 30 September 2014, Judge Heaton dismissed an application by the parents for the revocation of the placement order in respect of L and granted an application by the local authority for a placement order in respect of D.
3. At the time of the proceedings before Judge Heaton, the children were all in local authority care. The older two children were removed from their parents' care in 2006. In November 2006, in care proceedings, Her Honour Judge Cahill QC made findings that they had suffered emotional harm and neglect and were at risk of physical harm in the care of their parents. The parents did not take up the opportunity to work with the local authority towards the return of the children to their care. They also declined to participate in an assessment in connection with L, prior to his birth in March 2007, and care proceedings were commenced in relation to him as well. Later in 2007, Judge Cahill made care orders in relation to D and R and a placement order in relation to L. The parents sought to appeal against Judge Cahill's orders but were refused permission by the Court of Appeal.
4. R was initially placed with his half sister but that broke down the following year and he has spent much of the time since in residential care, foster placements having been tried and failed. He now lives in a children's unit. The other two children have been in local authority foster care throughout.
5. D has Downs' Syndrome and associated learning difficulties. He moved to his present foster home in July 2008 and was eventually joined by L. The foster carers now wish to adopt both boys. Judge Heaton continued the placement order in relation to L and made the placement order in relation to D so that that could happen.
6. D and L have not seen the parents since at least April 2010; orders have been in place sanctioning the refusal of contact. In contrast, R has been seeing the parents. The boys have been seeing each other face to face, on a supervised basis, six times a year.
7. Judge Heaton had a number of applications to determine in addition to dealing with placement orders in relation to D and L. The parents wanted to care for the children themselves and therefore sought the discharge of the care orders in respect of all of them, as well as the revocation of the placement order in respect of L. There were also applications concerning contact.
8. Not only the local authority and the guardian but also R opposed the discharge of the care order in respect of him. The judge refused that application, R's wishes and feelings carrying very significant weight with him.
9. The judge also refused the parents' applications for the discharge/revocation of the care/placement orders in relation to D and L, concluding that D and L could not be returned to the care of the parents now or in the foreseeable future. The judge said that the deficits which Judge Cahill had found in their parenting of the children had not been acknowledged by the parents and remained wholly unaddressed, the parents blaming those in authority for what they saw as the wrongful removal of their children. Furthermore, the parents had distanced themselves from their children by their own actions. Direct contact had had to be brought to an end and they had been unwilling to participate in indirect contact. There was therefore "no base of a relationship with the children" on which to build. The judge took the view that the parents had been driven by their perceived grievances, which overrode all other considerations, including the welfare of their children. He found that they continued to be utterly entrenched in their views and remained unwilling to work with the local authority at all. Meanwhile, the children had built loving relationships with their carers and had become happy and settled where they are.
10. As to contact in relation to R, the upshot of the hearing was that he would continue to see his parents as he had been doing, the judge considering that there was no need for a formal order about what that contact would be. The parents' application for contact with D and L was dismissed because the judge thought it would be contrary to their welfare interests. In reaching this view, he was influenced by the problems over contact in the past, the lack of evidence that the parents' conduct would be any different now, and the refusal of the parents to work cooperatively with the local authority as would be necessary if contact were to be reintroduced to the children who had not seen or heard from them for years. He made no order in relation to the contact between the siblings because he was satisfied that the prospective adopters and the local authority were both committed to its continuation in any event.

Applications for permission to appeal and applications for adjournment of the appeal hearing

11. The parents filed three appeal notices. Some of the orders against which they sought to appeal might be loosely described as procedural. One of these concerned the appointment by CAFCASS of a new solicitor for the younger two children, and the parents also wanted to appeal against certain refusals by Judge Heaton to adjourn the proceedings, as well as his refusal to recuse himself, and his refusal to order that counsel for the local authority be removed from the case. I refused permission to appeal against any of these orders. The parents also wished to appeal against various substantive orders. I refused permission to appeal in relation to the judge's decision that the children would not return home and his decision not to reintroduce contact between the parents and the younger children. I made a very limited order permitting the parents to appeal on specified grounds (see below) against the decisions taken by the judge on the question of placement orders.
12. My order granting permission was dated 5 March 2015. The question of permission was to have been determined at an oral hearing on that day but, as is recorded in the order, there had been repeated adjournments at the request of the parents and, when a further application was made for an adjournment of the permission hearing (so that the parents could pursue the appointment of solicitors other than those who were on record), I dealt with the matter on paper so as not to delay things any further. I commented then that I expected that if the case were to be re-scheduled for an oral hearing at a later date, there would simply be another application for an adjournment. There have been liberal applications for adjournment throughout the proceedings. They were a feature of the proceedings before Judge Heaton, as he described in his judgment. They also continued during the run up to the appeal hearing because of problems with the parents' legal aid. I do not intend to make findings as to the rights and wrongs of the legal aid situation, which was undoubtedly not helped at all by the legal aid authorities. I would simply say that, in the light of the history of significant delay in resolving the children's futures, I was unwilling to adjourn the appeal hearing, save to put back the commencement of it until lunchtime in order to accommodate the parents' counsel.
13. At the outset of the appeal hearing, counsel for the parents, Mr Ollennu, made a further application for an adjournment, in order that he could speak to the parents (who were not at court) before making his submissions. In the light of the history and of the delays so far, and considering that Mr Ollennu's submissions did not depend on him speaking to the parents first, we refused to adjourn the matter but indicated that we would give Mr Ollennu permission to file short further submissions on the parents' behalf after the conclusion of the hearing, if he wished to do so.
14. We are grateful to Mr Ollennu for presenting his submissions on the parents' behalf orally at the appeal hearing, and to counsel for the local authority and the guardian, who rose to the challenge of responding to them although they had heard them for the first time at court. We have had the benefit of further submissions that Mr Ollennu filed in writing after the hearing (dated 1 October 2015), once he had had the opportunity to carry out further research and to have a conference with the father.

The ambit of the appeal hearing

15. The submissions on appeal were shaped by my grant of permission so it may be helpful to set out here what I said, which was as follows:

"I give permission for this aspect of the proposed appeal, albeit with hesitation. The case is unusual for a number of reasons, however, including the age of the children (8 and 14), D's vulnerability, the fact that the children are being cared for by white British carers but are of Ghanaian descent, and the children's very important link with their older brother, R, who would cease to be their brother if they were adopted and who opposed their adoption. A good summary of the points against placement orders can be found at paragraphs 148 and 149 of the judgment; for those which influenced the judge in favour of placement, see paragraph 235 and 236. I cannot tell from the papers what the evidence was as to the commitment that the foster parents were prepared to make to D even if he was not adopted; that will need to be considered.

The grounds on which permission to appeal is granted are limited to the following:

a) the placement orders were not a proportionate response/in the best interests of the children in all the circumstances of the case;

b) the planned adoption was not permissible/in the children's best interests, because they are Ghanaian nationals and/or need to maintain their links with their Ghanaian culture and identity through remaining part of the birth family.

I intend that these grounds will enable the parents to advance arguments that too much weight was placed on the factors that weighed with the judge in relation to the placement orders (such as L's wishes in the light of his age and understanding) and insufficient weight on other factors (such as the relationship with R and other matters included in the submissions made on behalf of R)."

Judge Heaton's judgment

16. We have had the advantage of an elegantly structured and comprehensive judgment from Judge Heaton. From it, information emerges about each of the children and about the foster parents. There is no need to set out all of the detail here and I will confine myself to some of the more significant points.
17. The foster carers and the boys have a "mutual strong loving relationship" and are committed to each other. The foster carers provide a good level of care for the boys and are attuned to their needs. The family operates in such a way that the children form an integral part of the home and are well settled there.
18. D's condition and his associated learning difficulties are of central importance. He attends "a specialist educational setting". The challenges he faces in life are indicated by the fact that, even though in his teens, he still cannot count confidently and consistently to 20. In the judge's words (paragraph 229):

"D is a child who will grow up to be a vulnerable adult. He may never achieve independent living. He has a particular need to grow up in the confidence that his needs will be met into adulthood, including his need to access appropriate specialist services from health and social care. He is likely to need an advocate who can negotiate their way round the labyrinthine health and welfare systems to help him with all of that."

The local authority pointed out that if D remained the subject of a care order (or became the subject of a special guardianship order) rather than being adopted, the foster carers would have no standing once D reached adulthood.

19. Of L, the judge said (paragraph 228):

"L in particular has never experienced being a full part of family life having been removed from the parents shortly after birth. He has a particular need to belong in this family and wants to be able to use the carers' name as a symbol of that belonging. He is fed up with the interventions of social workers consequent upon his position as a child placed under a care order which emphasise his status."

20. The evidence of the local authority and the guardian supported adoption as the correct course for both boys.
21. The points advanced to the judge in opposition to placement/adoption can be found summarised at paragraphs 148 and 149 of the judgment in which are set out the submissions made by Mr Bowman, who represented R who was opposed to the adoption of his brothers. Before going on to explain the judge's reasoning for concluding that, despite the cogent points made by Mr Bowman, adoption was, in fact, required, it may be convenient if I set out those paragraphs here:

"148. In his [written summary of his submissions] Mr Bowman makes the following points:

(i) Placement orders are not proportionate here as the same result can be achieved by other forms of order

(ii) Too much weight is given by the Local Authority and Guardian to the emotional benefits of adoption and conversely too little weight to the disadvantages

(iii) Adoption would risk loss of inter-sibling contact

(iv) R would be upset by the ending of his legal relationship with his siblings as would D and L

(v) D and L's cultural needs are not met by the placement

(vi) There is the loss of the possibility of contact to the parents

(vii) The adopters do not meet the children's educational needs

(viii) The protection of the Local Authority for the placement is lost

(ix) Also lost would be independent supervision of the placement

(x) The risks of ongoing litigation are not stemmed by an adoption order

(xi) The needs could be met here by a [special guardianship order] with a change of name and a s 91(14) Children Act 1989 order.

149. In his oral submissions, Mr Bowman told me that he had two main points:

(i) The inter-sibling contact was of crucial importance here and

(ii) The emotional effect on all three boys of the severing of the legal ties between them."

22. The judge acknowledged that the case was difficult but, in reaching the view that, from amongst the available possible options, nothing else but adoption would do for D and L, he was influenced by "two magnetic factors" which he identified as follows:

"235. Firstly I have significant regard for L's need to belong to this family in a committed way, and live life free of Local Authority intervention and restriction. I accept the evidence of [the social work litigation manager] and the Guardian that an adoptive placement has a different feel from a placement under a special guardianship order or a care order. In my judgment only an adoptive placement can provide that sense of truly belonging which L craves both now and into adulthood.

236. Secondly there is the issue of D's long term interests. It is very important for him that the carers are able to provide him with a stable and secure home into adulthood. He will need people around him who can help him access the services his needs require. D will not benefit from continued conflict on these matters into adulthood, to the contrary such conflict has the capacity to destabilise him and destroy his security."

23. He went on to observe:

"237. Adoption will put the care of D in adulthood firmly at the door of the carers. They are willing and able to take on the role and in my judgment area the best placed persons to do so. Given the attitudes of the parents any other order here will not only open the door to conflict in D's later life, but beckon it in."

24. In paragraphs 230 and 238 to 241, the judge tackled the difficult question of the loss that adoption would bring to the children which he said was "an important element in my considerations here". R would suffer distress to the point that it would, in the judge's view, amount to significant emotional harm to R. He acknowledged that L too may come to experience distress about it. It was open to question to what extent D would ever understand his position but the prospect that he too may suffer distress could not be excluded. The judge's conclusion about this aspect of the case is encapsulated in the following paragraphs:

"240. For the younger boys the emotional harm they may suffer by adoption is overwhelmed by the advantages they will derive, as I find them to be, from being adopted by the carers. However, for R it seems to me that very sadly there is only loss.

241. In my judgment that loss can be mitigated, to a degree, by ongoing inter-sibling contact. Such contact can give R the knowledge that while the legal tie may have been lost to his biological brothers they will continue to play an important part in each others' lives. I do not say that is the full answer, R will still mourn the loss of the legal tie, but it will mitigate the pain for him to a degree."

25. The question of how the boys' cultural needs were being and would be met, given that the foster parents are white British and the boys are Ghanaian, was explored during the hearing. The judge saw it as a proper concern in the case and the local authority accepted that the placement was not ideal from this perspective, though they pointed out that the parents had not helped the children because they had not provided even the most basic information for life story work. The judge said that all that could be done should be done to bridge the cultural gap but he did not consider that his choice of order would have a significant impact on the matter, given the carers' recognition of the problem and their commitment to do the best for the children in this regard (paragraph 224). He saw the relationship between the boys and R, which would continue in fact though not in law, as providing the boys with an important link to their ethnic and cultural background.

The submissions on appeal

26. Mr Ollennu's submissions focussed particularly upon the loss to D and L of their cultural heritage if they were to be adopted. He argued that Judge Heaton had given insufficient weight to this in his determination. It was, he submitted, a fundamental matter for the children and the judge was wrong not to look further as to the ways in which it could be addressed.
27. Given the refusal of permission to appeal against Judge Heaton's decision that the children should not be returned to the care of the parents, Mr Ollennu had to proceed upon the basis that they would remain with the foster parents. His argument was that this should be by means of a special guardianship order rather than by adoption, thus maintaining the children's legal ties with their parents and their cultural heritage. Notwithstanding that permission had also been refused for an appeal against Judge Heaton's decision not to order a reintroduction of contact with the parents, it was also part of Mr Ollennu's submission that contact between the parents and the children in the context of a special guardianship order would assist in addressing the cultural deficits of the placement and should have been ordered. Mr Ollennu further submitted that the beneficial effect of the children's continuing links with R would be undermined by the severing of the legal ties with him by adoption.
28. Dealing with the concerns about D's position in adult life, Mr Ollennu pointed out that foster carers continue to do many things for their foster children, even after they have reached the age of 18 and suggested that these foster carers would be able to do whatever was necessary for D even without an adoption order.
29. Mr Ollennu took advantage of the opportunity to file further written submissions after the hearing in order to return to a matter which he had raised in oral submissions but had not felt able to deal with fully. This was the question of the continuing involvement of the local authority in the children's lives if a special guardianship order were to be made. Mr Ollennu's submission was that it would be beneficial for the boys for the local authority to remain involved, monitoring the situation to ensure that the boys' cultural needs were addressed in their placement. He submitted that this could occur within the framework of special guardianship support services in a way which, in his submission, would not be possible with adoption. He also returned to the question of the children's cultural and ethnic identity in the light of the conference he had now had with the father, who wished attention to be drawn to Articles 20 and 30 of the Convention on the Rights of the Child.

Discussion

30. Having had the opportunity, in the course of this appeal, to consider the careful judgment of Judge Heaton in detail, with the benefit of submissions from all the parties, I have concluded that he was entitled to reach the conclusion that placement for adoption would best serve the children's welfare throughout their lives, and that nothing else but adoption would do. In the circumstances, the placement orders were a proportionate response.
31. The judgment makes clear that Judge Heaton had well in mind the disadvantages to the children of adoption, notably the loss of their legal relationship with R and their legal links to their family's national, cultural and racial background. It is understandable that the parents' argument made much of the question of cultural heritage. As advanced by Mr Ollennu, this was not put on the basis that there was a legal obstacle to the adoption of the children by virtue of their nationality (as to which see the decision in Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 which makes clear the English court does have jurisdiction to make an adoption order in relation to a child who is a foreign national) but on the basis that the foster carers are not from the same national, cultural and racial background as the children and their parents, and that this should have led the judge to reject the notion of adoption by them.
32. This was a disadvantage of the placement of which the judge was very much aware. He was entitled to rely on the continuance of the relationship with R, in fact though not in law, as assisting in addressing the problem. He also accepted that the current carers recognised the problem and were committed to do their best to address it. Mr Ollennu rightly pointed out that people in the position of these foster parents can only go so far in addressing the matter. However, it is important to put the arguments about cultural heritage in context. The judge had decided that the children could not return home to live with their own parents so this solution to the problem was not open. That being so, there was no plan to move the children from their current carers to carers who were better matched culturally. It would be surprising if there were as they are well settled where they are, attached to the foster carers, and in so far as they are able to express views about it, want to belong in that family. Indeed, the parents' submissions were predicated on them remaining there, with special guardianship orders in place, no doubt in recognition that any other course would be quite contrary to their interests. Accordingly, whilst adoption would sever the legal links to the boys' cultural heritage, it would not deprive them of the chance to live with carers who were more closely matched to their background. It may be that this was what the judge had in mind when he classed the cultural deficiencies of the placement as a neutral factor in his evaluation.
33. The reality was that the boys had a number of needs, not limited to important considerations related to nationality, culture and race, and there was no perfect way in which to satisfy all of those needs. The judge correctly examined each of them and evaluated the whole picture, ultimately concluding, as he was entitled to do on the evidence that was before him, that two elements of the situation were of particular importance, namely L's need truly to belong to the foster carers in a committed way and to live life free of local authority oversight, and D's need for stability and security into adulthood and for his carers to have the standing to secure for him the services he will continue to require as an adult.
34. I would accept the submission made by the local authority and the guardian that the judge was right to place weight on L's feelings about belonging to the family. In so doing, he gave proper recognition to the fact that L did not yet have a complete understanding of the implications of adoption and may feel a loss as he grew up. However, L's wishes coincided with the unanimous professional view as to what was in his best interests throughout his life.
35. I would accept also the submission made to us by the local authority and the guardian that the only route effectively to achieve for D what he will need as he reaches adulthood is adoption and that special guardianship would not suffice. I note that in any event the foster parents did not wish for special guardianship orders, preferring that the local authority remain involved if they were not able to adopt the boys. As to alternatives to special guardianship, falling short of adoption, no one was able to identify during the appeal hearing any other option that would enable the foster parents reliably to have the standing that they will require in order to look after D's interests for him once he becomes an adult.
36. The decision that Judge Heaton had to take was not an easy one, particularly given the age of the children, the question of their cultural heritage, and the implications of adoption for their relationship with R. However, in all the circumstances, I am not persuaded that he has been shown to have been in error in the decisions that he took in relation to L and D, which he explained fully and cogently in his carefully reasoned judgment. I would therefore dismiss the appeal. I should add that I have had the advantage of seeing the judgment of Lewison LJ in draft and I agree with all that he says.

Lewison LJ :

37. I agree, and add some short observations of my own. In deciding whether to make a placement order, the paramount consideration is the welfare of the child throughout his life: Adoption and Children Act 2002 s 1(2). The decision requires the court to form a view about the future which nobody, of course, can predict. Inevitably, therefore, there is no obviously or objectively right answer to the statutory question. As Lord Nicholls explained in In re B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70, [2002] 1 WLR 258 at [16]:

"In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child."

38. An appeal court (such as this one) can only interfere with the decision of a lower court if it is wrong. It is not enough to show that different choices could have been made. Nor is it enough that the members of the appeal court would themselves have struck the balance differently. In a case such as this one the advantage that the trial judge has over the appeal court is enormous, as Lord Wilson explained in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911 at [42]:

"The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witnesses of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask "are the local authority's concerns about the future parenting of the child by this witness justified?" The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficulty of mounting a successful appeal against a judge's decision about the future arrangements for a child."

39. It seems to me that these considerations are all the more powerful in a borderline case. It is in precisely such a case that the legislature has entrusted the decision making to the first instance judge and this court should be very slow to interfere.
40. Mr Ollennu quite rightly did not suggest that Judge Heaton had overlooked anything of significance about the case. He was well aware of the disparity between the cultural background of the children and their potential adopters; and he was well aware of the loss that their elder brother would feel. Thus Mr Ollennu was driven to submit that the judge had given insufficient weight to those facts. However, as Black LJ has demonstrated the judge considered those factors with the utmost care, and gave cogent reasons for striking the balance where he did. In a case such as this submissions based on the weight that the decision maker gave to individual factors (whether pointing towards or away from the eventual conclusion) will rarely, if ever, succeed in demonstrating that the eventual outcome was wrong. For the reasons given by Black LJ I, too, would dismiss the appeal.

Kitchin LJ:

41. I agree with both judgments.