England and Wales County Court (Family)

IN THE NEWCASTLE-UPON-TYNE
COUNTY COURT

		The Law Courts The Quayside Newcastle-upon-Tyne NE1 3LA
		20th February 2014

1. This is an application made by LN for permission to oppose adoption applications in respect of her two sons. They are:

MJJN, who was born on 12^th June 2008 and so M is now 5 years and 8 months of age; and

HMN, born on 27^th January 2013 and so H is now 12 months of age.

2. These serial number adoption applications came before for what was anticipated as a final hearing on 6^th January 2014. LN attended that hearing, having already then consulted with solicitors. She indicated her intention to apply for permission to oppose the adoption applications. I therefore adjourned the application to today's date, 20^th February 2014, giving directions as to the documentation which needed to be filed for the hearing of the application for permission to oppose.
3. In accordance with those directions I now have the full bundles from the two sets of care proceedings in respect of the children. The first set of proceedings, in relation to M, was concluded by the making of final care and placement orders on 4^th December 2012. The proceedings in respect of H commenced shortly after his birth and concluded with the making of final care and placement orders on 11^th June 2013.
4. In addition to that, in accordance with the directions that I gave, I have received a supplementary bundle which includes the basis upon which the court determined threshold in each set of proceedings and the findings of the lay magistrates at the conclusion of the proceedings. A statement has been filed by LN and, in addition to that, she has prepared a detailed typed letter for me which is appended to her statement in which she sets out a number of the matters that she wishes to draw to the court's attention.
5. The Local Authority has, in accordance with the directions that I gave, filed a statement in reply from the social worker, Jayne Storey. She has also prepared a chronology of events which the Local Authority relies upon since the proceedings in respect of H concluded, now eight months ago. I received a skeleton argument on behalf of LN and written submissions from the local authority.
6. In addition to those documents, an application has been issued on behalf of LM under part 25 of the Family Procedure Rules 2010 for permission to instruct an expert. Ms Hargreaves, representing M, invited me to consider that application either as part of the leave application, or in the event that leave is granted. I made it clear to her that I would not see it as appropriate at this stage of the proceedings to embark on the instruction of an expert. If I considered that to be appropriate it would, in my judgment, be a compelling reason to give permission to oppose the adoption application to allow those matters to be explored. She did not demur from that course. I will therefore refer to that application in due course.
7. The boys each have different fathers. M's father is AR, who has parental responsibility for him, but did not play any significant part in his life, nor was he part of the proceedings which related to M. Indeed, he has at times disputed paternity. He was served with notice of these proceedings and the hearings. He has not attended any of the hearings, nor has he responded to the proceedings in any other way. H's father is MN. He does not have parental responsibility for H. He too was notified of the adoption application in respect of H, but has taken no steps to engage in these proceedings.
8. LN's mother, SW, has attended both the hearings which have taken place before me. She was present on the last occasion to support her daughter. I was asked by Ms Hargreaves today to agree to SW accompanying her daughter in court to provide emotional and moral support to her daughter and also because SW wished to address the court. I agreed to her being present on both bases.
9. The background to the two sets of care proceedings can be set out in brief. Following M's birth he lived in the care of his mother until shortly before his 4^th birthday. He was accommodated and placed in foster care on 16^th May 2012, following which the Local Authority issued care proceedings. The care proceedings included a parenting assessment by the Local Authority together with an expert assessment by Estelle Louw (consultant clinical psychologist) who assessed LN and M. The assessments did not support M's continuing placement with his mother or indeed within the birth family. It was in these circumstances that the care proceedings in respect of M came before the Family Proceedings Court for final hearing.
10. The Local Authority's care plan for M was for his placement for adoption with indirect contact between M and his birth family. The Local Authority had issued a placement application which it invited the court to determine at the conclusion of the proceedings. The Guardian in both sets of care proceedings was Sheila Howey. She supported the Local Authority's plan for M. At the conclusion of a contested final hearing, the magistrates approved the findings sought by the Local Authority in relation to both threshold and welfare issues. These findings are at B48 in the supplementary bundle prepared for today's hearing and their reasons are set out at B36.
11. The threshold findings in respect of M related to his exposure to the abusive relationship that M had with AR and the circumstances of her relationship with M N, her dishonesty with professionals, poor home conditions and findings of neglect in relation to M's care whilst living with his mother (a failure to attend nursery and health appointments, amongst other aspects of his care). The magistrates' reasons set out their acceptance of the evidence of the Local Authority, of Estelle Louw and of the Children's Guardian in their analysis of the prospects of M's successful placement with his mother. In their reasons at B37 they set out some extracts from Estelle Louw's report which addressed the shortcomings that she found there to be in MN's parenting of M and the impact that that has had upon M.
12. The magistrates' reasons record that Estelle Louw gave oral evidence that she was not optimistic that MN would effect the necessary changes to be in a position to parent successfully. Her opinion was that it would take upwards of a year of constructive work to achieve the necessary change. Estelle Louw's view was that, as a result of his early life experiences, M required better than good enough parenting, a view with which the magistrates agreed.
13. When SW addressed the court, it was clear that she what she said were inaccuracies in the parenting assessment of LN insofar as it relates to her family and circumstances. I listened to some aspects of the shortcomings that she wished to outline and then made it clear to her that the court is to look at this stage at the changes which had been made since the placement orders in each case were made. The court is bound by the findings of the Family Proceedings Court in circumstances in which they have not been successfully challenged. I therefore propose to go no further into the matters that she raised, other than to say that they were not central in any way to the conclusions which were reached in the parenting assessment, nor to the magistrates' findings.
14. Having made final orders in respect of M on 4^th December 2012, H was born the following month. H was accommodated and care proceedings were issued. Those care proceedings proceeded to a final hearing in 11^th June 2013. Once again, LN put forward her case for her son's placement in her care. The magistrates gave their decision and reasons on 11^th June 2013. In the reasons in respect of H (at B54), the magistrates address the question of change since the conclusion of the care proceedings in respect of M, six months earlier.
15. It is clear from their reasons (at B55) that they did accept that some changes had taken place. They accepted that MN had attended courses and was due to start another course. Although they recorded that MN was able to say what the differences between courses were and what she hoped to learn from each, the magistrates' reasons record that she had not made sufficiently significant changes and they questioned whether she really grasps the information and understands it so that she can retain it and put it into practice in the future. As they recorded, simply attending these courses is insufficient to demonstrate the required change.
16. The findings record the conclusion of the court that there was continuing and recent evidence at that stage that LN was unable to work with the Local Authority. They found that she had lied in the course of the proceedings, which they concluded demonstrated not only deceit but, in the context of those lies, her inability to take appropriate decisions in the best interests of her children. At the time of the issues resolution hearing in respect of H, MN had disclosed that she may once again be pregnant from what was said to have been a one-off encounter. The court concluded that there was a lack of change in her circumstances in relation to her relationships and the court did not rule out, on her evidence, that she would have other such encounters.
17. The Family Proceedings Court recorded and accepted the evidence of H's Guardian, Sheila Howey, of the significant shortcomings in LN's basic parenting abilities. At B58 the magistrates found that there was a deficiency in understanding and carrying out the basic tasks of parenting in seeing to H's needs. Having addressed the welfare issues and approving the threshold findings that were in issue, the court went on to make final care and placement orders in respect of H. In the case of each of the children, when placement orders were made, parental consent was dispenses with in accordance with section 52 Adoption and Children Act 2002.
18. At the time of the final hearing in relation to H, the court was aware that an adoptive placement had been identified for the two boys if final orders were made. In the light of the final orders in respect of both children, the matching process proceeded and they were duly placed together with their prospective adopters on 15^th July 2013, now seven months ago.
19. The statements prepared for this hearing highlighted to me for the first time that there had been a further application since the conclusion of the care proceedings in respect of H. Further enquiry today has revealed that MN applied in person to the Family Proceedings Court for revocation of the placement orders. Her application came before District Judge Elsey in December 2013. It proceeded no further, in circumstances in which the children were already placed. It is in these circumstances that the applications for permission to oppose come before the court.
20. The written submissions on behalf of LN and the Local Authority make it clear that there is no dispute between them as to the relevant legal framework in the light of the decision of Re B-S (Children) [2013] EWCA Civ 1146. The magistrates made placement orders in respect of both M and H, pursuant to section 26 of the Adoption and Children Act 2002, dispensing with parental consent, as I have recorded.
21. Section 47 of the Act sets out the conditions for making an adoption order. The relevant parts are as follows:

(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52…

(4) The second condition is that:

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, and

(b)(ii) the child was placed for adoption under a placement order; and

(c) no parent or guardian opposes the making of an adoption order.

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.

(7) The court cannot give leave unless satisfied that there has been a change in circumstances since the placement order was made.

22. I make it clear that, in the application of these principles, I have taken account of the following. The Article 8 rights for respect for private and family life that are very clearly engaged - there can be no clearer situation where that is the case. The order proposed is one of adoption, altering the legal relationships that the child or children have with their birth family, so that they are terminated. Such orders can only be made where it is both necessary and proportionate. In Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, the Supreme Court stressed that orders contemplating non-consensual adoption are very extreme orders of last resort, to be made in exceptional circumstances where nothing else will do - where no other course is possible in the child's interests. I approach these decisions on the basis that the least interventionist approach should be taken, unless there are cogent and compelling reasons to the contrary.
23. In accordance with Re G (A Child) [2013] EWCA Civ 965, the court is to undertake a global, holistic and multifaceted evaluation of the child's welfare, taking account of all negatives and positives of the options in the question. The recent authorities confirm that 47(5) Adoption and Children Act 2002 is intended to provide a real and meaningful remedy in appropriate cases.
24. The application under section 47(5) is to be considered in two stages. First, whether there has been a change in circumstances and, second, if so, should leave to oppose be given. The first question, whether there has been a relevant change in circumstances, was considered by the Court of Appeal in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, where it was held that the change of circumstances since the placement order was made must be of a nature and degree sufficient on the facts of the particular case to open the door to the exercise of judicial discretion to defend the adoption proceedings. Whether or not there has been a relevant change in circumstances is a matter of fact to be decided by the good sense and sound judgment of the tribunal that are hearing the application.
25. The second question (if there has been a change in circumstances, whether leave should be given) was addressed in detail in the judgment of the President in Re B-S (Children) [2013] EWCA Civ 1146. At paragraph 74, he said the court needs to consider all the circumstances, in particular two interrelated questions:

i) The parent's ultimate prospects of success if leave is given; and

ii) The impact on the child if the parent is or is not given leave to oppose, remembering that the child's welfare is paramount at that stage.

26. I pause to record that the welfare consideration is in accordance with section 1 Adoption and Children Act 2002 so that the child's welfare throughout his life is the court's paramount consideration. The extended welfare checklist in section 1(4) is to be applied, requiring the court to consider (among other factors): the impact on the child of ceasing to be a member of the birth family and becoming an adopted person; the relationship the child has with the birth family, including the likelihood of the relationship continuing and the value of it doing so; the ability and willingness of the birth family to meet the child's needs and the wishes and feelings of the birth family.
27. The President set out in Re B-S ten factors which are relevant to the weighing and balancing of the considerations in any case:

i) The prospect of success of resisting the adoption, not ultimately having the child restored to the parent's care.

The mother's case is that that this is her ultimate goal. The court must nonetheless consider this application on the basis of the prospect of successfully resisting the adoption.

ii) The two questions (the change of circumstances and welfare) are almost invariably intertwined.

iii) Once a change of circumstances is established and solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave, remembering that adoption is the last resort and that the child's interests include being brought up within his or her birth family.

iv) The welfare evaluation must take into consideration the pros and cons' a balance sheet analysis is encouraged.

v) A close focus on the circumstances requires evidence.

The President considered that, typically, the hearing would be dealt with on the submissions, as I have done. I made it clear during the course of submissions that, insofar as there are disputed issues of fact, it is not possible for those to be resolved in the context of this hearing. There were, in the event, no factual issues which I considered central to the issues for my determination.

vi) As a general proposition, the greater the positive change and the more solid the parent's grounds for seeking leave to oppose, the more cogent or compelling the arguments against based on welfare must be if leave is to be refused.

vii) The mere fact that the child is placed with prospective adopters is not determinative, nor is the passage of time. The older the child and the longer in placement, the greater the adverse impacts of disturbing the arrangement are likely to be.

viii) The child's welfare throughout his or her life is paramount, looking into adulthood and old age. The court must not attach undue weight to the short-term consequence if leave is given but must take a medium and long-term view of the child's welfare.

ix) The court must take care not to attach too much weight to the adverse impact on prospective adopters and, in consequence, on the child or children; and

x) Importantly, the test should not be set too high.

28. The court must consider therefore whether the parent, the mother in this case, has demonstrated the necessary changes and solidity in her prospects of successfully opposing the adoption. The evidence and the submissions provided for this hearing have properly addressed the changes which are relied upon by LN in seeking permission to oppose the adoption applications and also address the welfare issues. The changes that she relies upon are summarised by Mrs Hargreaves on her behalf under a number of headings.
29. The first is the position in relation to her relationships. It is argued on her behalf that she has not embarked on any other relationship since the proceedings in relation to H concluded, now eight months ago. The Local Authority has had no direct involvement with her since the proceedings concluded, but there is no evidence to suggest that she has had any other relationship since the relationship which gave rise to the suspected pregnancy at around the time of the conclusion of the proceedings in June 2013. LM also accepted in the earlier proceedings that her relationship choices had been bad. There is evidence as recently as June 2013 that she had unprotected sex so that she believed that she may be pregnant. I accept that there is no evidence of any relationship appropriate or otherwise in the last eight months, however, that must be seen in context. It is, in my judgment, a short period which cannot be relied upon to provide any real foundation for the manner in which her future life will be determined.
30. I fully accept the submission which was made by Ms Hargreaves that M could not prove more because of the limited time that has passed since the final order was made in relation to H. It is, in my judgment, nonetheless a short period against the background of a history of inappropriate and abusive relationships, despite the work which had been undertaken by MN previously to understand the nature of those relationships through her attendance at at least part of the Freedom Programme.
31. The second change relied upon relates to MN's attendance at parenting and other courses. At the outset of the hearing, Ms Hargreaves conceded that one aspect of the case put forward on behalf of MN is inaccurate. The parenting course which is referred to as having taken place after proceedings in relation to H concluded, in fact, took place after the proceedings in relation to M. MN is once again undertaking sessions as part of the Solihull parenting course. That was a course that she had attended substantially before the proceedings concluded in respect of H. I accept that she may well have been unable to attend one of those sessions as a result of a commitment she had with her solicitor to prepare her statement for this hearing but, on the evidence that I have, she has attended two sessions of that course. This is a course which addresses basic parenting issues.
32. Mrs Hargreaves also argues that MN has made approaches to outreach services herself to see what further steps can be taken. The Family Proceedings Court concluded quite properly that the fact of attendance is not sufficient. As Estelle Louw said when she gave evidence in December 2012, significant work would be required by MN to put her in a position where she could safely parent a child. Although she identified a time of 12 months or more for that work to be undertaken, the passage of time itself would not achieve the change without the successful completion of the significant work which was identified as necessary to address her shortcomings in parenting.
33. The changes which have been made since the proceedings concluded in respect of M were, of course, the subject of consideration in the proceedings which related to H. The court concluded that the changes which had been made, and the work that was being undertaken, was clearly well-intentioned and MN's efforts were recognised. The court considered, however, these to fall far short of what was required to demonstrate an ability to parent a child, in the light of the overall evidence before the court. Limited work has been undertaken since that time.
34. Mrs Hargreaves also relies on the improved home conditions. That was an issue, certainly, in the proceedings relating to M. It was not an issue relied upon in the proceedings relating to H and the Local Authority does now not raise any issue of home conditions but argues that it is not a change since the proceedings in relation to H concluded.
35. The area in which there is some dispute on the facts relates to the case put on behalf of MN, that she is now able to work openly with the Local Authority and other professionals, in circumstances in which she accepts that she has not previously and the court has found that she has not previously. The Local Authority challenges this in the evidence that it has filed, arguing that there have been occasions where MN has continued to mislead and misrepresent situations in a way which has undermined a trusting relationship. As I have made clear in the course of the submissions with both advocates, I am not in a position to determine those issues.
36. As I would always do at this stage, I adopt the most positive approach for the parent seeking permission to oppose: if I considered there were proper circumstances in which those matters could affect my determination, I would explore them further. It is also argued that MN accepts the Local Authority's and professionals' concerns. That is something which is recorded in the magistrates' reasons from the earlier hearings.
37. Those are in summary the changes which are relied upon. I have to consider whether those are of a nature and extent to open the door to reconsideration of the issues in relation to these boys and their future placement and to an evaluation of the welfare considerations. I accept that there is some evidence of change. Mrs W, on behalf of her daughter, also gave support to that in saying that she has seen a very great change which she says is not seen by professionals. She said she sees that on day by day basis.
38. I have dealt with each of the headings of change which are relied upon. Such changes as have been established, in my judgment, fall far short of the necessary change which would be required to persuade the court that the issue of these boys' future should properly be reopened. In my judgment, the changes that have been established fall far short of the significant changes required to address the extensive shortcomings which were identified in the earlier care proceedings and reflected in the decisions of the court. In my judgment, MN, although I fully accept loving her children very much and wishing to provide the best for them, has not demonstrated the necessary changes or solidity in her prospects of successfully opposing the adoption.
39. Despite having reached that conclusion, I will nonetheless address in brief my evaluation of the welfare considerations, for the sake of completeness. As the President indicated in Re B-S, the two issues are intertwined. Where there is a significant change established it would require compelling reasons for the court to reach a welfare decision which would prevent further investigation of the issue. I have identified that the changes made in this case are not of a significant nature to provide a solid basis for seeking leave.
40. I look then to the welfare considerations. M is a young boy who is now over 5½. He has been living away from his family since he was not quite four years old, although he has only been in his adoptive placement (together with his younger brother) for seven months. He suffered significant harm as a result of the care he received from his mother. The Local Authority's evidence is that he is showing signs of the neglect that he experienced in his own life, in things he has said to his prospective adopters about the experiences he had when he was living with his mother. He is a child who the court accepted requires better than good enough parenting as a result of these early experiences. H has never lived with his birth family. He was in foster care and then placed for adoption. He has not suffered harm in the same way as his older brother.
41. Both of these boys require permanence and stability. They need to be part of a family which can provide for them not only consistently throughout their childhood, but throughout their lives. Taking account of their ages and circumstances, if they cannot live with their birth family, a placement for adoption provides by far the best prospect of this permanence and stability.
42. Although M has a memory of life with his birth family, the evidence indicates that these memories are not positive. The court concluded at each final hearing that the boys' mother could not provide them with the care they each required. The proceedings in relation to H concluded only eight months ago, since when I have concluded that the changes to her life are neither or a nature or extent to alter the conclusions reached by the magistrates.
43. M and H are both thriving in their adoptive placement. I give only limited weight to the impact on the prospective adopters (and therefore on the children) of any continuation of these proceedings. I have, however, concluded that there is no realistic prospect of a court considering their placement with their mother. Any delay in the adoption proceedings would not, in these circumstances, result in the prospect of a return to her care and would simply result in continuing uncertainty.
44. I have concluded that the positive changes do not make out any solid basis for permission to oppose. I have also concluded that the welfare considerations for these boys are overwhelmingly against any further delay in the adoption application. I therefore have concluded that the application for permission to oppose in each case is refused.
[Judgment ends]