ON APPEAL FROM Mr Justice Bodey
The High Court, Family Division
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MCFARLANE
LORD JUSTICE LINDBLOM
|W (A child)|
Ms Rachel Langdale QC and Ms Ravinder Randhawa (instructed by North Tyneside Council legal department) for the first respondent local authority
Ms Emily Ward (instructed by Swinburne Maddison Solicitors) for the second respondent grandparents
Nicholas Stonor QC and Mr Stephen Ainsley (instructed by DMA Law) for the Child through her Children's Guardian
Hearing date : 20th July 2016
Crown Copyright ©
Lord Justice McFarlane:
a) The approach to be taken in determining a child's long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified;
b) The application of the Supreme Court judgment in Re B  UKSC 33 ("nothing else will do") in that context;
c) Whether the individuals whose relationship with a child falls to be considered under Adoption and Children Act 2002, s 1(4)(f) is limited to blood relatives or should include the prospective adopters;
d) Whether it is necessary for a judge expressly to undertake an evaluation in the context of the Human Rights Act l998 in such circumstances and, if so, which rights are engaged.
"Permission is granted to oppose adoption and permission to apply for child arrangements order, noting that this is not actively opposed by [Mr and Mrs X]."
a) On the front cover the "application type" is said to be "Child Arrangement Order". No mention is made of the adoption application which was, at that stage, the only substantive application before the court as the question of leave to apply for a Child Arrangement Order or Special Guardianship Order had yet to be determined;
b) The "hearing type" is said to be "final" with a hearing date of "9 December 2015". On its face, therefore, the report purports to be a "final" report and, indeed, the Guardian did not submit any further report prior to or during the hearing in front of Bodey J five months later in April 2016;
c) In a box identifying the "parties" the only names to appear are those of the parents and paternal grandparents. Mr and Mrs X do not feature in that list;
d) Under the heading "issue/summary" there is an account of the history up to December 2014, but no further. No "issue" is referred to;
e) Under the heading "evidence-based analysis" again the history of the parent's involvement around the time of A's birth and, subsequently, with respect to their second child, J, is set out. J's placement with the paternal grandparents in July 2015 is recorded and details of the parent's contact, or lack of it, with J is described. The final three paragraphs of that section record, respectively, (i) the grandparent's lack of knowledge of A's birth and their surprise and sadness on understanding that she had been placed for adoption, (ii) their assertion that, had they been made aware of A's existence, they would have put themselves forward at that time as alternative carers for her and (iii) the grandmother's sympathy for the position of Mr and Mrs X but her assertion that "A has a right to be brought up within her birth family". It is, in my view, impossible to accept this section of the report as being in any way 'an analysis', even less an "evidence-based analysis", of the issue which was whether A, who was well settled and thriving in the care of Mr and Mrs X, should now be removed from that home and placed with her paternal grandparents within the paternal family, none of whose members she had ever encountered before;
f) Under the next heading "impact of the current proceedings on the child" the bulk of the passage (eleven paragraphs) is taken up with another recital of the factual history prior to 2014. The remaining four paragraphs record that A has "established a close and loving attachment to her prospective adoptive carers which is reciprocal", note that they have made an adoption application, note that the paternal grandparents have applied for a Child Arrangements Order and, finally, state:
"Whilst it is accepted that A has received a high level of care and is clearly firmly established in her current placement the court must balance this against the background of the opportunity for A to be raised within her birth family."
Whilst that short passage is of note as being the only place within the report where the author does identify the issue in the case and the welfare balance that must be struck, no part of that section relating to "impact of the current proceedings" seeks to address the issue of "impact" or give any description of A as an individual other than her name and as being the subject of a series of applications, orders and placements.
g) Within the next section of the report headed "Professional Judgment" there is, once again, an arid series of paragraphs which simply note the headline dates in the past history and the various applications that have been made relating to A and J. Following those twelve paragraphs of background the final three paragraphs must stand as the author's "professional judgment". I will set them out in full:
"60. [The paternal grandparents] have five adult children and take an active role in the lives of their grandchildren. The couple have carefully considered their position and are highly motivated to care for A as well as J in the strong belief that children should be brought up within their birth family.
61. The couple appear to have an appropriate insight into the limitations in respect of [the parents] and as such believe they are able to protect both A and J from any significant harm in the future.
62. The couple are aware that [mother] is currently pregnant with her third child whose expected date of delivery is March 2016. Given the history it is highly likely the child will not remain in the care of the parents once born. Having considered this issue carefully [the grandparents] are clear they would not be in a position to take on the care of this child or any subsequent children born to [the parents] in the future."
It is, I suspect, only necessary to have quoted those three paragraphs to demonstrate that they could in no manner stand as a statement of the "professional judgment" of an experienced social worker on the issue of whether A should be removed from the prospective adoptive home in which she was settled to the care of the paternal grandparents whom she had never met. Indeed that issue, which had been correctly flagged up by the Guardian in the preceding paragraph (quoted at (f) above) is not even mentioned in the purported analysis that is offered.
"63. A's immediate need is to be placed in a nurturing, secure, safe environment, where she can continue to make the positive attachments she has already began to make. A has a need for high quality, permanent care that is consistent and robust. Due to her age, A needs the opportunity to be claimed by permanent carers therefore adoption is not in her best interests as, in my view, [paternal grandparents] can provide the necessary level of permanent care needed by A.
64. A placement with her paternal grandparents will enable A to grow up with an awareness of her origins which she can build upon when older, if she so wishes.
65. Later in life, A will have questions and feelings around not being raised by her parents but with appropriate supports from her grandparents and other extended family members this should help her make sense of her history."
Children's Guardian – oral evidence
"38. In her oral evidence, having read all the up-to-date information and heard the paternal grandmother regarding her (the grandmother's) health [the Guardian] did not change her recommendation. She recognised that Mr and Mrs X would be devastated if A had to move. She stated that they had impressed on their wish to do everything possible to help in such a move, although she thought that (understandably) they may not have the emotional resolve. Thus she considered it would be possible and necessary to use [child's social worker's] existing relationship with A, such that he would be the facilitator (my word not hers) in the transfer process. She approved of the paternal families' proposal that J should stay with Aunt A-M in the initial stages and only be reintroduced into the grandparents' family home once A had become more settled."
39.Asked about her experience as to the likely duration of upset for A, [Guardian] described it as difficult to set a timescale, since all children and involved adults are different. She said words to the effect:
"… it's certain that there will be a degree of disruption more intense in the early weeks; but after a period of months it will be less acute."
She accepted that to start with A would be bewildered and completely confused. She would have to try to understand why her parents, Mr and Mrs X, would no longer be caring for her and this would have an effect on her. She agreed that the element of 'permission' from Mr and Mrs X might well be missing from the transfer process, but commented:
"… but we have to deal with realities. Children are often moved from their families when their carers find it impossible to give permission and we deal with what we have." (or words to that effect).
She accepted in answer to Mr Todd [counsel for Mr and Mrs X] that such moves are generally made because of the existence of unacceptable risks in the current placement, but she went on to say that many children being moved do not see it as such, their lifestyle involving such risks being the norm for them. [Guardian] agreed that she had seen the paternal grandparents and their family twice but had only met the adopters once, namely earlier this month. She said she had been waiting before doing so to see whether leave would be granted to the paternal grandparents. In her last answer to Mr Todd, she repeated her opinion in her written report, namely that since the paternal grandparents can in her view meet A's needs, adoption is not the best outcome for her."
"since the paternal grandparents can in her view meet A's needs, adoption is not the best outcome for her."
The soundness of that conclusion, which is now accepted on behalf of the Guardian as being mounted on a legally incorrect basis, is not questioned by the judge either at this point or elsewhere in his judgment.
Independent social worker
i) Assessment of the paternal grandparent's suitability to be special guardians for A;
ii) The impact of the paternal grandparents' respective medical needs, as demonstrated by GP records, on their ability to care for two children (namely A and J); and
iii) To "Consider the child's welfare throughout her childhood as part of an analysis as to whether it is in A's best interests to move from the care of the prospective adopters into the care of the paternal grandparents".
The ISW was initially instructed not to see A but, apparently, that instruction was subsequently altered so that (following the three occasions upon which she had "interviewed" the grandparents) she "observed" A at the prospective adopter's home and had "a discussion" with them. The ISW's report does not purport to be a comprehensive assessment of Mr and Mrs X and their care of A or, importantly, an assessment of A herself as an individual or of the attachments that she and Mr and Mrs X have formed with each other.
a) In a section describing a telephone discussion with the local authority social worker with case responsibility (as opposed to the local authority social worker responsible for supporting A's placement with the prospective adopters) the following is noted:
"7.3 We shared the opinion that where there was a loving family who were prepared to care for A and the benefits of being brought up by family there could be no justification for a child to be adopted outside the family." (emphasis added).
b) In a section recording a telephone discussion with the Children's Guardian:
"8.2 We shared our concern for A who believed that these were her parents and she was secure and happy in their care but also acknowledged that A had a birth family and she had the basic right to be brought up by her family unless there was absolutely no other option." (emphasis added)
c) Within the note of her discussion with Mr and Mrs X:
"11.2…although I could not discuss confidential matters I did say that at that point in my assessment I could not find any concerns (relating to the paternal grandparents) that would be significant enough to deny a child the right to be brought up by family." (emphasis added)
d) In the 'recommendation' section relating to A's welfare:
"The fact that she has formed close attachments will, however, enable her to form close attachments with her family and the fact remains that she is not the adoptive child of her prospective adopters and she has family who are willing and desperate to provide her with a high level of care where she will be brought up with her brother, will share family events with her close knit extended family who are totally committed to her. This is, therefore, not a case where "nothing else will do" and it is not my opinion that placement outside her birth family is necessary and proportionate in the interests of the welfare of the child.
12.17 A has the right to be brought up within her family of origin unless there are significant concerns with regard to the care she would receive from her family. It is my opinion that despite the level of distress she will suffer in the short term her long term interests would be met by knowing that she was not rejected by her family and that even though her own parents were unable to care for her she was able to remain a child of the family for the remainder of her childhood and into adulthood when her children will also have a family identity."(emphasis added)
ISW's oral evidence
"[Mrs Fairbairn] agreed with Mr Todd that A would suffer 'a bereavement' which would have a significant effect 'initially' (Mrs Fairbairn's word). She told Mr Todd that moving young children is an area in which she has experience, expressing the view again that A's strong current attachments will make it more likely that she will attach again on moving on. She emphasised her concern that, if adopted then when she grew older, A would suffer from knowing that she had been denied a childhood with her two siblings J and K. She accepted that because of A's sense of loss, she would or could regress 'temporarily' (again, Mrs Fairbairn's word). Whilst acknowledging that the removal of children from foster care is different in kind from removal from proposed adopters (as here), she made the point that such children removed from foster care settled surprisingly quickly. She did not think that the paternal grandparents would have difficulty dealing with such things as A's crying, bedwetting, tantrums or not eating. She added that "… it always amazes me how quickly children settle in and how resilient they are …" (although she stressed that in so saying she was not seeking to detract from how difficult A would find the removal from Mr and Mrs X). Asked by Mr Ainsley if A's upset and unsettlement would last 'for weeks, months or years', Mrs Fairbairn answered with words to the effect: "… more months than years." She said:
"… I do think she would be unsettled, but not for long."
Mrs Fairbairn told me that she is 100% confident that A would settle in the extended birth family, confirming how very impressed she was with the family. She did not think that there was a risk of a transfer of A going so badly wrong that it would need to be reconsidered. It would in her opinion be 'devastating' for A to realise later in her life that her siblings had been allowed to live in the birth family when she had been denied this."
Social worker for Mr and Mrs X
The grandmother's health
Judge's judgment: the law
"Then importantly at s 1(4)(f), a court must have regard to the relationship which the child has with relatives including the likelihood of any such relationship continuing and the value to the child of its doing so; the ability and willingness of any of the child's relatives to provide the child with a secure environment in which the child can develop and otherwise meet the child's needs; and the wishes and feelings of any of the child's relatives."
"(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."
"(vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand the older the child and the longer the child has been placed, the greater the adverse impacts of disturbing the arrangements are likely to be.
(viii) "The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of conditions)  2 FLR 124 that 'the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems'. That was said in the context of contact but it has a much wider resonance."
"In Re B-S the Court of Appeal set out in the context of leave to oppose adoptions, a number of relevant considerations at paragraph 74 (i) to (x), all of which I have considered on this and other occasions."
In any event factor (vii) is a neutrally balanced description of fact specific points to be made on either side in any individual case.
Judge's judgment: Welfare analysis
"the disadvantage of an adoption order in favour of Mr and Mrs X is that which is the advantage of a Special Guardianship order to the paternal grandparents: that a placement by way of adoption is not an upbringing within a child's natural family."
"…later in life A would become resentful and say or think 'why was I denied an upbringing with my family and my siblings when they were able to have such an upbringing which I could have had too?' "
"…I have not found the decision at all easy. Indeed I have agonised over it. It seems utterly counterintuitive to move a child who is so happy, settled, loved and well cared for. However, in the last analysis, I have concluded that if the transition can be successfully made, then on the balance of probabilities, it would be in A's best interests throughout her life to be united with her natural family."
Of the various factors in the case the judge drew particular attention to:
"I consider there is a real risk of A being resentful later on, say when she moves into early adolescence, about having had a completely different upbringing from her siblings and having missed out on their company, when the natural family were (as I find) able and willing to bring her up. Sibling relationships are generally recognised as being some of the longest lasting and (if things work out well) most valuable we may have in our lives."
Judge's judgment: Harm to A as a result of move
"That being so, the question comes down to the risks of making a transition to the grandparents."
Option 1 – a four day period during which Mr X and the social worker would introduce A to the grandparents (not as "grandparents" to avoid confusion but by using first names only) for example at a chance encounter in a local park. A similar encounter would then take place the following day close to the grandparents' home and would include an "impromptu" offer to come for tea at their home. On the third day Mr X and the social worker would take A back to the grandparents' home and spend a few hours there with them and on the fourth day A would say her goodbyes to Mr and Mrs X and the social worker would take A to the grandparents' home for good.
Option 2 – the social worker would simply collect A on a given day and take her to the grandparents' home. The social worker advised "this option in essence requires A to be moved without preparation and the emotional impact would be significant and potentially long-lasting as she would be confused and distressed and it would be for the paternal grandparents to answer her questions, with the local authority's support".
Option 3 – A is moved to foster care, as a bridging placement, for three to six months to settle, receive therapeutic support and advice prior to being introduced to the parental grandparents.
"the only other option would be Option 2 which everyone agrees will have a significant impact on A and the support on offer from therapist would in my opinion be vital in assisting (grandparents) in coping with A's confusion and distress and helping A through the inevitable trauma of the move."
She expressed every confidence that the grandparents would engage with the support offered and place A's needs first. Once again she couched her final conclusion in the following terms:
"This is a very distressing case but I remain of the opinion that where a child has birth family who are able to offer an acceptable level of care in a permanent home that a child should not be denied the right to be brought up within their family of origin." (emphasis added)
"I accept the genuine and conscientious anxieties of [social worker] about the risks of moving A. On the other hand he is inevitably (and this is not a criticism) seeing it all from the point of view of one who has for over a year and a half supported Mr and Mrs X and the placement of A with them. I have to set against [social worker's] concerns, the unanimous view of the other experts, Mrs Fairbairn and [Guardian], who between them have 60 years in social work and childcare, and [LA social worker] based on her more limited remit. As already set out, their opinions are that this move can be made and that, although it will inevitably cause distress, confusion and some regression, this should be and would probably be measurable in 'months rather than years', with A coming to adapt to life within her new family. If that can be achieved, with the preponderance of the evidence which I accept being that it can be, then a move now would in my judgment be in the best interests of A's welfare throughout her life. Put at its lowest I am unable to conclude, having regard to s 1(6) of the Act, that the making of an adoption order would be better for A than not doing so."
Grounds of Appeal
"To allow an application to prevent an adoption where a child has spent sufficient time with her adoptive family that she views them as her only and permanent family is contrary to public policy and in breach of the human rights of the child and the adoptive parents."
Welfare valuation post adoptive placement
'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.
48. The validity of the status quo argument is certainly well established in the pre-CA 1989 authorities. In D v M (Minor: Custody Appeal)  3 All ER 897, Ormrod LJ said:
'… it is generally accepted by those who are professionally concerned with children that, particularly in the early years, continuity of care is a most important part of a child's sense of security and that disruption of established bonds is to be avoided whenever it is possible to do so. Where, as in this case, a child of two years of age has been brought up without interruption by the mother (or a mother substitute) it should not be removed from her care unless there are strong countervailing reasons for doing so. This is not only the professional view, it is commonly accepted in all walks of life.'
Factors in any particular case relating to the status quo will fall to be considered in a case to which CA 1989, s 1 applies under s 1(3)(c) where the court must have regard to 'the likely effect on [the child] of any change in his circumstances'.
49. In more recent times the prescient observations of Ormrod LJ, which were made at a time when the early work of John Bowlby and others on 'Attachment Theory' was available, have been borne out by the enhanced understanding of the neurological development of a young child's brain that has become available, particularly, during the past decade. As a result, the importance of a child's attachment to his or her primary care giver is now underpinned by knowledge of the underlying neurobiological processes at work in the developing brain of a baby or toddler.
50. In the context of 'attachment theory', the wording of ACA 2002, s 1(4)(f), which places emphasis upon the 'value' of a 'relationship' that the child may have with a relevant person, is particularly important. The circumstances that may contribute to what amounts to a child's 'status quo' can include a whole range of factors, many of which will be practically based, but within that range the significance for the child of any particular relationship is likely to be a highly salient factor. The focus within CA 1989, s 1(3)(c) is upon the 'likely effect on' the child of any change. The focus in ACA 2002, s 1(4)(f)(i) is upon 'the value to the child' of any particular relationship continuing.
51. It is not my purpose in this judgment to express a view upon the relative importance of attachment/status quo arguments as against those relating to a placement in the family. Each case must necessarily turn on its own facts and the weight to be attached to any factor in any case will inevitably be determined by the underlying evidence. In any event, for reasons to which I have already adverted, it is not necessary to do so in this case as, unfortunately, the judge does not appear to have engaged in any real way with the effect on the children of moving them from the care of their primary, and only, attachment figure or with the value to them of maintaining that relationship.'
"Nothing else will do"
"We all agree that an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do."
The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase "nothing else will do" is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase "nothing else will do" is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons (see Re B-S  EWCA Civ 1146, Re R  EWCA Civ 715 and other cases).
Natural family presumption/right
'89. The situation in public law proceedings, where the State, via a local authority, seeks to intervene in the life of a child by obtaining a care order and a placement for adoption order against the consent of a parent is entirely different [from private law proceedings], but also in this context there is no authority to the effect that there is a 'presumption' in favour of a natural parent or family member. As in the private law context, at the stage when a court is considering what, if any, order to make the only principle is that set out in CA 1989, s 1 and ACA 2002, s 1 requiring paramount consideration to be afforded to the welfare of the child throughout his lifetime. There is, however, a default position in favour of the natural family in public law proceedings at the earlier stage on the question of establishing the court's jurisdiction to make any public law order. Before the court may make a care order or a placement for adoption order, the statutory threshold criteria in CA 1989, s 31 must be satisfied (CA 1989, s 31(2) and ACA 2002, s 21(2)).
94. It is clear that for Russell J the outcome of this case did not turn on the deployment of the 'presumption' that she describes, and this point was not taken within the appeal. My attribution of some prominence to it is not therefore determinative of the appeal. My aim is solely to point out the need for caution in this regard. The House of Lords and Supreme Court have been at pains to avoid the attribution of any presumption where CA 1989, s 1 is being applied for the resolution of a private law dispute concerning a child's welfare; there is therefore a need for care before adopting a different approach to the welfare principle in public law cases. As the judgments in Re B, and indeed the years of case law preceding Re B, make plain, once the s 31 threshold is crossed the evaluation of a child's welfare in public law proceedings is determined on the basis of proportionality rather than by the application of presumptions. In that context it is not, in my view, apt to refer to there being a 'presumption' in favour of the natural family; each case falls to be determined on its own facts in accordance with the proportionate approach that is clearly described by the Supreme Court in Re B and in the subsequent decisions of this court.'
Judge's description of the law
"As I said to Mr Todd after delivery of the Judgment, I have of course had regard to the various Article 8 rights to respect for private life which are engaged here, but I do not find in practice in cases like this that they add anything in reality to the statutory welfare test."
Were A and/or Mr and Mrs X sufficiently "heard"?
Judge's acceptance of evidence of CG and ISW
Judge's welfare analysis
Lord Justice Jackson:
i) Shall A be removed from the home of Mr and Mrs X, where she is thriving and much loved? That will be involve the brutal and traumatic transfer of a two-year-old girl from her perceived parents to a family whom she has never met; or
ii) Shall A be kept apart from her two siblings and her birth family? Shall she grow up without meeting them?
Lord Justice Lindblom: