England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Manchester County Court & Family Court
His Honour Judge Hernandez
MA26414

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/07/2015

Lady Justice King :

1. This is an appeal against a judgment of His Honour Judge Hernandez given on the 19 January 2015. By his order the judge refused the mother permission to oppose the making of an adoption order in relation to her child, F, who, at the time of the hearing, was 19 months old (born 19 June 2013).
2. The issue is whether the judge was wrong in concluding that the mother had not shown a sufficient change in circumstances since the making of a placement order in respect of F on 28 March 2014 such as to satisfy the gateway provision found in s47(7) Adoption and Children Act 2002. (ACA 2002). Such a finding would satisfy the first stage of the well known two stage test used, (see paragraphs 22-24 below), in considering an application for permission to oppose the making of an adoption order. A finding of a change in circumstances would allow the judge to then move on to evaluate the parent's ultimate prospects of succeeding in opposing the adoption application, bearing in mind that the child's welfare throughout his life is paramount.
3. Miss Obi-Ezekpazu, on behalf of the mother, does not challenge the law as set out by the judge or the way in which he directed himself in relation to either stage of the two stage test used in considering an application for permission to oppose the making of an adoption order. Her case is that the judge was wrong, on the evidence available to him, to conclude that the change in the mother's circumstances since the making of the placement order were not of a nature and degree sufficient to reopen consideration of the issue of adoption.

Background

4. F, the child with whom the court is concerned, is the fifth of six children of the mother, an intelligent articulate woman of 34. All four of F's older siblings have been removed from the mother's care.
5. The mother had a difficult childhood and was exposed to poor neglectful and abusive parenting culminating in being sexually abused by a care worker whilst she was in a residential unit. She had her first child when she was 14 years old. Her general distress manifested itself in unpredictable and aggressive behaviour, leading to a number of criminal convictions, and ultimately, her conviction in 1997, of an offence of arson being reckless as to whether life was endangered. The mother was sentenced to a discretionary life sentence with a requirement that she served 18 months in custody.
6. The mother's time in custody was difficult and following her release, she was recalled under licence provisions. Altogether she spent approximately 11 years in custody being released in April 2009; she remains subject to licence provisions for the rest of her life. Most recently at a Court of Appeal hearing in October 2013 held in respect of one of the older children, the mother had an outburst at court which resulted in her being recalled to prison. She was released again in May 2014.
7. F was born on the 19 June 2013 and was removed from the mother's care under an emergency protection order on the 20 June 2013. F was placed with a foster carer at three days old with whom he has remained ever since. The foster carer was approved as an adoptive parent for F on the 18 August 2014.
8. By the time the mother was recalled to prison in October 2013, (by which time F had been with the foster carer for 4 months), she was pregnant again, giving birth to R shortly after her release on 8 June 2014. R was also removed at birth and placed with foster carers.
9. Proceedings in relation to F, as with two of her other children, were heard by His Honour Judge Hernandez. He made care and placement orders in relation to F on the 28 March 2014. The mother had her last contact visit with F three months later in June 2014. The mother sought permission to appeal the placement order, which application was refused by Lord Justice Jackson on the 13 August 2014.
10. The same miserable court process recommenced following the birth of R, and looked likely to result in a sixth child being removed permanently from the care of this young mother. Fortunately the same social worker was allocated to both R and C although each child had a different Guardian. When the proceedings were issued in relation to R they were allocated to District Judge Stewart rather than to HHJ Hernandez. With respect to DJ Stuart, that allocation was, no doubt, a reflection of what was felt, given the mother's history, to be the utter inevitability of the outcome in respect of R's care proceedings. In fact DJ Stuart was not prepared to accept the outcome to be inevitable and, rather than simply accept that a care order would be made and R be placed for adoption, he directed that a Dr Kate Hellin review the many reports that had been prepared on the mother and see what, if any, therapeutic or professional input might break the cycle whereby the violent and uncontrollable outbursts, which had been a constant feature in her life from her own childhood, would once again prevent her from being safely able to care for a child.
11. Dr Hellin, in a report dated the 14 August 2014, concluded, inter alia, that the effect on the mother of the abuse of her as a child, the multiple child care cases and removal of her children could not be underestimated. Dr Hellin said that these factors increased feelings of rage within the mother, which created a "negative feedback loop" which was "self-perpetuating". In order for change to occur Dr Hellin said that the mother needed to address the "negative cycle of her relationship with authority figures"; Dr Hellin therefore recommended a systemic intervention comprising of a professional friend and for the other professionals engaged with the mother to be organised so as to form a supportive team, rather than by antagonising her.
12. An addendum report, filed by Dr Hellin on 25 October 2014 was not wholly encouraging; there had been a number of outbursts by the mother including between her and her older two children and an episode of aggression towards a probation officer. Dr Hellin however continued to believe that her model could stabilise the mother in due course.
13. With the support of the children's guardian and the social worker, Dr Hellin's radical recommendations were implemented; a professional friend was found and a group of professionals around the mother were established. The local authority to their great credit was open to a possible plan for reunification but unsurprisingly, wished to see how the mother progressed. On the 9 December 2014, R moved to the care of his paternal grandmother who was to be the alternative long term carer for R in the event that he could not live with his mother. At the time of the hearing of the mother's application for permission to oppose the adoption order in relation to F in January 2015, the programme had been running for about a month; R was in the paternal grandmother's care and the success or otherwise of the programme of the mother, fell to be determined at a final hearing fixed for the 24 April 2015.
14. That then was the situation when the matter came on before the judge on the 19 January 2015. The judge, unusually in an application under s47(5) ACA 2002, heard oral evidence from both the mother and the social worker, in addition he had the benefit of all the up to date reports in R's proceedings including Dr Hellin's October 2014 addendum. The judge "with regret" came to the conclusion that at that stage the mother had not been able to demonstrate sufficient change to warrant the court giving the mother leave to oppose the adoption. The judge acknowledged there was evidence of the mother trying to improve her relationship with those in authority, but concluded that 'only time would tell' whether Dr Hellin's approach was right against the backdrop of the mother's unregulated behaviour "which had now endured for 30 years". The judge said:

"Any change will take time to evaluate and there would need to be confidence that she would not regress from any progress that she has made. She would have to demonstrate that any change was sustainable. This will take time."

15. The judge concluded that as of January 2015, whilst the mother's attempts to engage with the programme put forward by Dr Hellin were laudable, they were too uncertain and at too early a stage to amount to a material change of circumstances. The judge went on to say that in the event that he was wrong "about the sufficiency of the change in the mother's circumstances" he would go on to consider the prospects of her successfully opposing the adoption and the impact on F. To this end the judge considered the welfare checklist as set out in s1(4) ACA 2002 and applied the evaluative exercise required by Re B-S (Children) [2013] EWCA Civ 1146. The judge set out his analysis, reminding himself that whilst F had been with his prospective adopters all his life (then 19 months), he nevertheless had to consider F's welfare throughout his life not merely the short or medium term disruption that leaving his prospective adoptive mother would bring.
16. The judge took into consideration that there had been no assessment of the mother's ability to care for R, nor had there been a positive assessment of her ability to care for two children then each both under 2 years. In evidence the mother had told the judge that she did not anticipate any significant difficulties in caring for two children. The judge having seen and heard her give evidence did not accept that that was the case and was of the view that having to care for two children would overwhelm her and diminish her prospects of being able to care for R.
17. The judge concluded by saying:

"In my judgment, F cannot wait for the mother to demonstrate that she is in a position to care for him. The timescales of that assessment are too uncertain, as are the prospects of success. Whilst she may at some time in the future be able to demonstrate an ability to care for R it is, in my judgment, unlikely that she could demonstrate that she could care for F as well, a child who has no attachment to her and who is attached to his current carer. In my judgment she would be bound to fail."

18. The mother's oral application for permission to appeal the judge's refusal of permission to oppose the adoption order came on before Lewison LJ on 12 March 2015. The mother appeared in person and produced for him a draft copy of a report from Dr Hellin, (wrongly attributed to Dr Baker in the judgment), which showed evidence of further progress on the mother's part. Lewison LJ gave permission for the mother to appeal in order to give the court the opportunity to review the judge's decision in the light of the more up to date material.
19. This court now has the benefit of Dr Hellin's latest report dated 13 March 2015, together with helpful updating information provided by Mr Rowley QC on behalf of the local authority.
20. Dr Hellin's report was most encouraging. There had been no outbursts on the part of the mother and she had been able to work more collaboratively with her professional friend. Whilst not risk free, Dr Hellin regarded the conditions precedent to R's return to the mother as having been met. The local authority and the guardian agreed and the final care plan for R was that he be placed in his mother's care under the auspices of a final care order. The professional friend and professional link network were to continue in place for a period of up to 6 months and, providing the placement was settled and secure and R's needs were being adequately met, the local authority would look to discharging the care order after 12 months.
21. By agreement between all the parties, DJ Stuart made a final care order in respect of R on the 24 April 2015 and he moved to live with his mother on the 5 May 2015. To date all is well. Involvement with the professional friend has come to an end and the local authority now visits R and the mother every 6 weeks. The paternal grandmother provides respite care.

Analysis

22. The mother made her application under s47(5) of the Adoption and Children Act 2002 which provides:

e) The parent of guardian may not oppose the making of an adoption order …. …..without the court's leave….

f) ….

g) The court cannot give leave under subsection 3 or 5 unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or as the case may be the placement order was made.

23. Where a change of circumstances is established, the child's welfare must be the paramount consideration when deciding to grant leave under s47(5) (Re P – Adoption: Leave Provisions) 2007 2 FLR 1069.
24. The judge set out accurately the legal framework underpinning such an application between paragraphs 22 and 26 of his judgment. The judge reminded himself that the bar should not be set too high, because parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child, by the imposition of a test which is unachievable. He applied the correct test when considering how the court must approach the question as to whether leave should be given in the event that a change of circumstances has been established. The cases underpinning the framework as set out by the judge are familiar and do not need to be rehearsed within this judgment.
25. Miss Obi-Ezekpazu on behalf of the mother focused on three matters:

i) She submits that the judge was wrong in concluding that there had not been a change of circumstances as of January 2015. The programme of work advocated by Dr Hellin was by then she said, 'embedded', the trajectory she said, was positive and a way had been found to work with the mother. This should have satisfied the gateway in s47(7) and allowed the judge to move to the second stage of the test.

ii) The mother should have been given permission to oppose the making of the adoption order given that F was living with his former foster carer. Children regularly, she reminded the court, move from a foster placement where they are settled to an adoptive placement. Miss Obi-Ezekpazu seeks to suggest that in such a situation there are no concerns and no adverse effects on the child. To suggest therefore that there may be emotional harm to a child by such a move for F from his foster mother to his natural mother, does not, she says, sit comfortably with established adoption practice.

iii) The mother in her written material upon which Miss Obi-Ezekpazu relies says that it is a "contradiction" to have two different outcomes for two children of the same mother within a matter of months.

26. Mr Rowley QC supported by Mr Semple on behalf of the guardian disagrees with each of Miss Obi-Ezekpazu's three propositions. At the January hearing there were, he submits 'green shoots', but far however from being "bedded down", the programme devised by Dr Hellin was still very new albeit that Dr Hellin was saying that, notwithstanding some outbursts by the mother, (recorded in detail at paragraphs 48 and 49 of the judgment), it was worth continuing with the programme.
27. Mr Rowley does not accept Miss Obi-Ezekpazu's analogy of F's circumstances to that of a foster child being moved to a stranger adoption placement. Social workers, he stresses, avoid moves for children wherever possible; no social worker, he says, would ever say that such a child is unharmed by the breaking of his or her attachment to his foster carer; that harm is however outweighed by the benefits the child will get in the long term by a permanent substitute family, in circumstances where the child can neither return to his birth family nor stay with the foster carer long term. F's position Mr Rowley says, is wholly different for the reasons given by the judge.
28. In relation to the welfare evaluation, Mr Semple directed the court's attention to the very recent case of Re M'P-P (Children) [2015] EWCA Civ 584 which also involved a proposed adoption by a foster carer. In particular he drew the court's attention to McFarlane LJ's consideration of the so called 'status quo' argument:

"[47] At the beginning of this judgment I indicated that the appeal, in part, raises the question of the relative weight that is to be attached to the issues of 'status quo' and 'family' when they appear to be in opposition to each other in proceedings relating to a child. In recent times the importance of a local authority and the court giving full weight to the importance of a 'family' placement, unless this is established to be so contrary to a child's welfare that a long-term placement in public care or adoption is necessary, has been stressed in a range of decisions, of which Re B and Re B-S are the most prominent. Less has been said in the recently reported cases about the weight to be afforded to the bundle of factors that family lawyers have historically referred to as 'the status quo argument'. That this is so may, in part, be a consequence of the status quo simply not being a factor in many public law cases where, at the time of the final hearing, the child is, on any view, in a home that is temporary; the dispute is normally about the home to which the child is to move (be that in the family or with strangers) with no option to stay where he is.

29. McFarlane LJ said in terms (paragraph 51), that he was not expressing a view on the relative importance of attachment/status quo arguments as against those relating to a placement in the family as each case turns on its facts. Notwithstanding that caveat, Mr Semple submits that Re M'P-P represents an important recalibration or a reminder that sight must not be lost of the reality of the situation for the child with whom a court is concerned when that court is properly focussing on the importance of the family and parents and is considering the case against the backdrop of its appreciation that adoption is an order of last resort. The reality for F, Mr Semple submits, is that he is completely integrated into the family with whom he has lived from birth and he has no attachment to his mother; for F, his placement is not a temporary foster placement from which he must inevitably move.
30. I agree. It is not, as is suggested by Miss Obi-Ezekpazu, that the hurdle is being set higher before leave is given to a parent where the foster carers are the proposed adopters, it is that the court has to weigh in the balance not only 'the likely effect on the child (throughout his life) of having ceased to be a member of the original family' (s1(4)(c)ACA202), but also the value to a child of a relevant relationship (here with the prospective adopter) continuing S1(4)(f)(i). Such an evaluation takes place in the context of all the facts found by the judge including the inevitable attachment of the child to its long term carer, a carer who may or may not have been the child's foster carer prior to becoming his or her approved proposed adoptive parent.
31. Whilst understanding that the mother finds it hard to understand and accept how she can be regarded by the court as being capable of caring for one of her children but not the other, it goes without saying that each child has to be considered as an individual, and that their differing welfare needs may result in differing outcomes. As McFarlane LJ said in respect of the two children with whom he was concerned in Re M'P-P:

"[58] ….the legal imperative is plain that the decision for B must be made with B's welfare as the paramount consideration and the decision for E must be made with her welfare as the paramount consideration."

The local authority has done just that; F & R each have the same social worker, Ms Keating, who was clearly open to this mother caring for a child notwithstanding her history and that she had had four children already removed; ultimately however, each child's unique circumstances and welfare needs led her to recommending a different outcome for each of them.

The Appeal

32. Mr Rowley submits that the judge was right, as of the 19 January 2015, to say that there had not been sufficient change to warrant permitting the mother to oppose the application. I agree and accept the analysis of the judge who recorded it in an exemplary judgment.
33. The judge, for the reasons summarised at paragraphs 15-17 above, concluded that the mother's ultimate prospect of success in opposing the adoption application lacked solidity. In my judgment the judge was not in error and was right in reaching that conclusion and dismissing the application of the mother.
34. I am satisfied that in January 2015 the judge did not fall into error either in his analysis of the law or in his evaluation of the welfare evidence prior to dismissing the mother's application for leave. The judge had the inestimable benefit of having had the conduct of various proceedings involving the mother over a 3 year period. He had conducted the trial in March 2014 which had led him to the conclusion that adoption was necessary and proportionate in respect of F; in other words that the high level of justification needed to approve plans to permanently separate a child from his family of origin had been met.
35. As was anticipated by Lewison LJ when he gave the mother permission to appeal, the court has now been fully appraised of the mother's up to date situation. What impact, if any, on the decision made by the judge does the fact that a further six months have passed since he refused permission and that during that time the mother has consolidated her position such that R has now, been placed at home with her?
36. The mother can only be admired for the progress that she has made, and one can only guess at the hard work and tenacity on her part which has led to R being returned to her care. It may well be, that had the judge been hearing the application now, he would have concluded that the mother had shown a relevant change of circumstances since the making of the placement order and therefore satisfied the first stage of the test under s47(5) ACA 2002. I am however satisfied that even had that been the case, the second stage welfare evaluation would have resulted in the same conclusion as that reached by the judge in the early stages of the programme in relation to R in January 2015, essentially for the same reasons given by him in his judgment; an outcome which, in my judgment, has only been reinforced by the further passage of time and the fact that F is now two and has lived all his life with his present carer.
37. I would accordingly dismiss the appeal.

Lord Justice Beatson :

38. I agree.

Lord Justice Richards :

39. I also agree.