England and Wales County Court (Family)

IN THE CANTERBURY COUNTY COURT

		The Law Courts Chaucer Road Canterbury Kent CT1 1ZA
		28th February 2014

JUDGE MURDOCH:

1. This is an application by a mother for leave to oppose an application for adoption of her son, F, born in November 2007 and therefore now six years and three months of age. The mother, as I understand it, was born in February 1991 and so was 16 at the time of F's birth. I should say that F's father's name appears to be unknown to the local authority and the applicant. He is in any event not named in F's birth certificate and so he does not have parental responsibility for F. During the mother's pregnancy with F she met a man, Mr D, who became in due course the father of her two younger children, M, who was born in December 2010 and is now three, and B, who was born in July 2012 and is now therefore 19 months old. The mother's relationship with that man appears to have resumed in 2009 and he was then living it seems in Holland and the mother left F with her maternal grandmother on a date which is not entirely clear but was probably in 2010. It was in any event before 10 October 2010, which is the date when F was placed in police protection at a time when the maternal grandmother was arrested together with another relative for attempting to leave the country with F and F's cousin, travelling on false documents. The grandmother was held in custody pursuant to her arrest on that occasion. At the time that F was made the subject of police protection he was found to have very serious dental problems and required surgery under general anaesthetic for the removal of eight of his teeth. He was then not yet three years of age. At that stage the maternal grandmother told the local authority who received F into their care that the mother was in Germany but in January 2011 she informed them that the mother was in Holland and had given birth to her second child, M. As I have said, that was in December 2010. At that stage the information from the grandmother was that the mother had fled from her violent partner, M's father. The social worker rang a telephone number and spoke to someone who said she was the mother who said that she was trying to get back to the UK from Holland, where she was living illegally. Apart from the telephone number, no contact details were provided.
2. The local authority issued care proceedings in respect of F on 1 April 2011 and in those proceedings he was made the subject of a series of interim care orders. The maternal grandparents told the local authority that they did not know the mother's whereabouts; they assumed she was living in Holland, having, as they understood it, returned to the abusive partner, Mr D. The local authority then learned that the mother had surrendered to the Dutch authorities and asked to be deported to the United Kingdom and indeed after four months in a Dutch detention centre the mother was returned to the United Kingdom in July 2011. At that stage her child, M, remained abroad with other carers. On arrival in this country the mother spent three months in Holloway Prison, not being released from there until September 2011. She was represented in the care proceedings and attended court hearings on 2 September and on 18 October, the former occasion being while she was still held in custody and the second being after her release. She explained in a statement filed in those proceedings that she had left F with her mother, intending to return from Holland to visit him regularly but Mr D had been violent to her and she was unable to leave him. After learning of F's having been taken into care she decided that the only way to return to the United Kingdom was via detention and deportation. After the hearing in October 2011 the mother returned to the Netherlands. In doing so she failed to engage in any assessment process within the care proceedings. The local authority received information from the grandparents, including to the effect that the mother was in a refuge in Germany and then that she was in Cologne with an uncle. There was a conversation between the mother and the social worker when the mother telephoned and said that she did not agree with the local authority's then plan for F to be placed for adoption and she told the social worker that she was in a refuge in Germany because her partner had been trying to kill her. She gave no other contact details. The final hearing in the care proceedings was set for 15 May 2012. The local authority had sought to serve the latest court order on the mother but had been unable to do so because of the lack of contact details. The grandparents were in touch with the mother, however, and in a letter dated 11 April 2012 solicitors acting for the maternal grandparents said that the German authorities would be returning the mother to the UK and by another letter dated 13 April the grandparents sought the adjournment of the care proceedings until after the mother had returned to the UK. Despite that application, the Family Proceedings Court, considering matters at the hearing (which was fixed as a final hearing) on 15 May 2012, decided to proceed with the hearing and made a care order and a placement order in respect of F. The care proceedings had been in existence for over a year at that stage and F had been in foster care for some 19 months.
3. Following that hearing the mother returned to the UK at the end of May and she has remained in this country ever since. She in fact gave birth shortly after her return to the United Kingdom to her third child, B, that birth occurring, as I have said, in July 2012. She has sought to regularise her immigration status and has been supported by the National Asylum Support Service ("NASS"). M has had a number of carers, being eventually returned to his mother's care in November 2012. B has been in his mother's care throughout the period since his birth. In March 2013 when the mother was living in Haringey she permitted Mr D to join her in her home and in that home there was a violent incident when the police were called. The mother fled with the children to Croydon and stayed in an NASS hostel there until April 2013 when she and the younger two children were re-housed in Birmingham. The mother has been convicted of an offence of shoplifting and was made subject to a suspended sentence in respect of that matter and was required not to go within a particular exclusion zone locally. I shall return to that matter a little later.
4. The mother on returning to the United Kingdom immediately sought advice from Coram Children's Legal Centre in relation firstly to appealing the care and placement order and secondly to seeking contact with F. The local authority, however, were opposed to the establishment of direct contact, given the orders that had been made in the Family Proceedings Court and the substantial lapse of time since the mother had last seen F. The mother sought advice from solicitors, who wrote to the local authority in November 2012 asking for direct contact between the mother and F but the local authority responded, indicating that this would not be agreed. There was then a delay in the mother obtaining funding to apply for contact, which was granted in mid-March 2013. On 18 April 2013 the mother issued a contact application at the Principal Registry of the Family Division. There was then some difficulty in the processing of that application and it appears that it was not until some weeks later that Kent County Council became aware that the application had been issued. On 21 May 2013 the local authority informed the mother's solicitors that an adoptive family had been identified for F and that a panel meeting was scheduled for 4 June. The local authority at that time continued to maintain its opposition to direct contact. The panel in due course approved the adoptive match and on 7 June the local authority wrote again to the mother's solicitors saying that the local authority intended to proceed with the plan to place F with the prospective adopters. A planning meeting was due to take place on 21 June but on the previous day, 20 June, the mother's solicitors had written expressing concern as to the proposal for introductions to start and stating that they intended to issue an application for leave to apply to revoke the placement order.
5. The matter then came before Her Honour Judge Rowe QC first of all on 2 July and she then heard the matter in the course of that week. In view of the urgency of the matter she gave a detailed written judgment on 5 July 2013. In that judgment Her Honour Judge Rowe QC accepted that there had been a change of circumstances since the placement order was made. What she said about that was as follows:

"When decisions were made about F's future, the mother was not in the country and her whereabouts were unknown. She had not engaged with the local authority in assessments of her parenting. She had not made herself available for contact with F. She had not consistently cared either for F or M. Her relationship with her partner was abusive. Her immigration status was unresolved. Today the mother's immigration status remains unresolved. There was a recent incident of violence which involved the same partner. She is, however, presently separated from that partner. Further, she has worked with various local authority professionals for just over a year to maintain (B) or resume (M) the care of her young children. She has accepted help in relation to accommodation and she has apparently welcomed local authority support, particularly in her care of M. These changes are I find more than superficial on consideration of the further material filed between the hearings. Miss Lazarus, the mother's counsel, very sensibly recognised this. The mother should be given and I do give her substantial credit for making these changes in her life and for achieving the local authority's support in her care of her younger two sons. I accept that she very much wants the chance to make up for her failure to care for F. I conclude that her circumstances have changed in nature and degree, not completely but sufficiently for me to consider whether to exercise my discretion to grant her substantive application."

However, the learned judge then went on to consider the discretion as to whether to give leave to the mother to apply for the revocation of the placement order. She concluded having reviewed the mother's then situation and the position of F and the fact that prospective adopters were awaiting introduction to F that she would not give leave. She said at paragraph 80 of her judgment:

"In these circumstances I conclude that the mother's application to revoke the placement order has no real prospect of success. It cannot be in F's best interests to halt the plan by which he will be placed in his forever family in the next two weeks and instead to make him wait for an unspecified but significant period of time whilst the mother does her best to overcome these enormous hurdles identified above. The loss of his only chance of an adoptive placement is far too high a price to pay for the prospect which I find to be poor of a placement within this family after all these years."

So on that basis Her Honour Judge Rowe QC, as I have said, refused the mother's application.

6. F was then placed with the applicants on 15 July 2013 and they made an application for an adoption order on 6 November. That application came before me on 22 November when I made an order in the usual form requiring service on the mother and requiring the mother to file and serve on the local authority a statement of any change in circumstances that she was relying upon if she sought leave to oppose the application. The matter was due to be before the court on 24 January but the matter was considered by the court on 15 January when the hearing was adjourned to today's date with a time estimate of two hours on the basis that the mother was to file with the court and serve on the local authority by 12 February a statement of evidence in support of her application for leave to oppose the adoption application and the local authority were to file and serve their evidence in response by 21 February. The mother has duly filed her statement and the mother essentially says this: that her situation has greatly changed since the date when the placement order was made on 15 May 2012, she has been living back in the United Kingdom since shortly after that placement order was made, she has had B continuously in her care since then and M in her care since November 2012 and she has cooperated with the local authority in Birmingham where she lives.
7. The children were the subject of child protection plans at the time of the hearing in front of Her Honour Judge Rowe but in December of last year at a child protection review conference the decision was made that the children would no longer be subject to safeguarding plans and would be treated as children in need. She has not resumed her relationship with Mr D. She relies on a number of positive comments in the child protection review conference minutes which say that the mother has good care of B and M; they are clean and tidy; their diet is good. During visits the mother has been observed encouraging them not to eat in between meals; there is fruit and meat in the fridge and evidence that she prepares meals; the home environment is reportedly clean and tidy with adequate toys and books and they each have their own beds although B still sleeps with his mother. The reports from the nursery are that M has been attending five afternoons per week since September 2013 with very good attendance. She brings M to the nursery with B, who is both clean and presentable. Both children are described as hyperactive. There are some negative points raised in the child protection conference. There is a note from the contribution of the social worker that the GP was concerned that the mother was shouting at M whilst at the surgery and this was also noticed on another occasion when she was kept waiting. This was however put down to the mother becoming frustrated and trying to manage two active young children in a strange environment.
8. The mother is of Croatian Roma origin and it has been noted that the language environment can be difficult for the children in that three different languages including English are spoken to the children but having said that of course it is of great importance that the children are brought up with a full knowledge of their cultural background. The social worker's view was that the mother was caring adequately for B and M. She recognises her mistakes and would not do anything to put B and M at risk. Although the mother apparently presented as defensive to professionals, once matters are explained to her she is responsive to advice given.
9. Among the risk factors noted was the involvement of the mother in shoplifting, which was described in the conference as a habit which she has made attempts to break. I have already referred to the suspended sentence to which she was subject for shoplifting and she has recently had to appear before the court in respect of an alleged breach of the suspended sentence order in that she entered the excluded area. It was also noted that on that occasion she had a number of items in the bottom of B's pram for which she had forgotten to pay when paying for other goods. The mother's explanation that that was a simple piece of forgetfulness and a mistake was apparently accepted but she nevertheless was required to attend court for being in breach of the exclusion order and it was only on Monday of this week, 24 February, that she was fined the sum of £55 for that and placed on an electronic tag until 25 March. The case conference had noted that there was a concern about the possible exposure of the mother to a custodial sentence if she continued to engage in shoplifting. There is no evidence that she has recently engaged in shoplifting but there must be a concern about her recent breach of the exclusion order.
10. It was also noted at the case conference that the mother's immigration status remains an issue. She is currently seeking regularisation of that status but is currently not in receipt of public funds as a result of her immigration status. She receives financial support from NASS, which enables her to meet her living requirements.
11. The local authority in their evidence accept that the mother has made significant changes in her circumstances and for the purpose of the application which is before me today there is no dispute that that element of the two-stage test which the court must apply to an application of this kind is to be resolved in the mother's favour. Bearing in mind the judgment of Her Honour Judge Rowe QC to which I have already referred and the mother's continued cooperation with the authorities so that the children are no longer subject to child protection plans, it is undoubted that the mother has demonstrated a change in circumstances for the purpose of section 47(7) of the Adoption and Children Act 2002. It is clear from the authorities that the court must in addition to addressing whether there has been a change in circumstances exercise a discretion as to whether in the light of that change in circumstances leave should be given to the parent to oppose the application for adoption and of course the most important of the recent authorities is the case of Re B-S (Children) [2013] EWCA Civ 1146 and I have regard in particular to paragraph 74 of the judgment of the court in that case. Paragraph 74 sets out ten particular points after indicating the principle, which is that the court has to consider two interrelated questions:

"One, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount."

12. This is of course an exercise of discretion pursuant to the Adoption and Children Act 2002 and so it is the child's welfare throughout his lifetime which is paramount. I must bear in mind that when considering the prospects of success it is the prospect of successfully resisting the making of an adoption order and not necessarily the prospect of ultimately having the child restored to the mother's care which is to be considered. I must bear in mind that once the court has decided as I have in this case already that there has been a change of circumstances the court must consider very carefully whether the child's welfare really does necessitate the refusal of leave and I must keep at the forefront of my mind that adoption must be regarded as a remedy of last resort and only permissible if "nothing else will do" following the guidance of the Supreme Court in the case of Re B. I must consider all the advantages and disadvantages of each of the two options, either giving or refusing the parent leave to oppose. I must also have regard in particular to the fact that the circumstance that a child has been placed with prospective adopters can by no means be regarded as determinative of the application, although it is right to say that the older the child and the longer that child has been in placement, the greater the adverse impacts of disturbing those arrangements would be likely to be. I have already mentioned that it is welfare throughout the child's lifetime that is important and is paramount and I must consider that it is the long-term and medium-term view of the child's development that is important and not simply a short-term view of problems which might be created. I remind myself that I should be careful not to attach undue weight to the argument that the granting of leave to oppose would cause an adverse impact on the prospective adopters and thus on the child and I must bear in mind that the test for giving leave to oppose should not be set too high because parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.
13. In this case I must bear in mind in particular the course of F's life to date and the fact that for the reasons of the history which I have referred to he has not seen his mother since 2010. He has no knowledge of his own birth family that he is likely to be able to bring to his recollection. He has spent the period from October 2010 until July 2013 in two foster placements and since July 2013 he has been placed with the present applicants. I have the evidence from the social worker of the fact that he is now settled in his foster placement, presents as a confident child and interacts well with all members of his prospective adoptive family. He talks positively about his prospective adoptive grandparents and aunts and uncles; he has been prepared for the move to the adoptive placement as his forever family, which is how he sees them; he calls the Applicants "Mum" and "Dad"; he has an older prospective adoptive sister and has a positive relationship with her; he has had to change school after being placed with adoptive family and there has been a careful transition; he is progressing well and has made new friends and has been invited to several birthday parties, so the process of F's settling into the prospective adoptive family is well under way.
14. The court must have regard to the disadvantages for F of adoption. He would not be brought up by his own natural mother or any member of his birth family. He would not have connection with his brothers, M and B. He would not be likely to be introduced in any meaningful way to the culture of his mother's family, his Croatian Roma background, although the prospective adopters wish to do what they can to introduce him to that. He now speaks only English. He would not have the advantages of having other languages from a very early age. He would be likely to have some issues as to his identity in adolescence or in early adulthood. The advantages of adoption for him would be that having been placed in a family which appears to be well able to meet his needs and in which he has settled there is a very good prospect of his remaining successfully in that family for the whole of his childhood and achieving a sense of belonging in that family which would be lifelong. There would be an extremely good prospect that all his physical, emotional and educational needs would be met.
15. The other options which fall to be considered for F include, of course, return to the mother, which the mother fervently seeks. She has really fought for that since her return to this country in May 2012. The advantages to F of that course of action being followed would be that he would be returning to his birth family and to his mother. She is obviously committed to him, whatever the difficulties in her commitment at an earlier time may have been, given her young age and difficult circumstances. He would be able to be with his two brothers, whom he has not yet met. The disadvantages of a placement with his mother are that this would be yet another change for F, having been carefully prepared for an adoptive placement and introduced to a new "forever" family. Having now gratefully accepted that family as his forever family it would be necessary for work to be done with him to move him back to the care of his mother. He would be likely to be very perplexed about that sudden change in his direction of travel. There are other disadvantages: the mother only on Monday of this week was facing the possibility of a custodial sentence in connection with her history of offending and being in breach of the exclusion order. She has uncertain immigration status, although there is evidence before the court that her prospects of remaining in this country are reasonably good. She has no access to public funds at present. The two children in her care are designated as children in need. She is receiving assistance in caring for them, so she is not able fully to meet their needs on her own at present, although she is endeavouring to do so. There would inevitably, it seems to me, be a risk that if F was returned to his mother's care that that would be an unsuccessful rehabilitation. If it was an unsuccessful rehabilitation the effect on F would be devastating. In my judgment looking at those disadvantages they greatly outweigh the advantages of a return to his mother's care.
16. There is the third possible option of a placement in long-term foster care. That would have the advantage that it can be combined with ongoing contact to the family and contact could be set up but it would have the disadvantage that it would be another change for F; it would be another complete change in the direction of travel for him and one which again he would be bound to find extremely perplexing. It would not have the advantage of an adoptive placement that it is one which comes very close to imitating the features of a natural family placement in that long-term foster carers are not generally given parental responsibility which resides with the local authority. F would continue to be a child in care. It might lead to a change whereby the foster carers became special guardians but that is a matter of speculation for the future. It is very hard to see any net advantage for F of moving from his current adoptive placement into a long-term foster placement.
17. In having thus examined the advantages and disadvantages for F of those placements it is very clear to this court that the net advantages for F of remaining in his current adoptive placement are very greatly in excess of any net advantage for him of moving to his mother. In my judgment, indeed moving to his mother's care would place him at risk of his needs not being met. Accordingly, when I evaluate the prospects of an opposition by the mother to the adoption application I have reached the clear conclusion that there is no realistic prospect that if I gave leave to the mother she would be able successfully to oppose the making of an adoption order in this case. In those circumstances for me to give leave for that matter to go ahead and the mother to oppose the adoption application would be to expose F through the impact on his adoptive parents to uncertainty and anxiety for no real benefit at the end of the day. It would be to raise the mother's hopes and to no real benefit to her at the end of the day. Accordingly, when I consider the advantages and disadvantages of the granting of leave to the mother I am completely satisfied that the disadvantages of granting the leave application greatly outweigh any possible advantage, so measuring the exercise of my discretion against F's welfare interests throughout his lifetime I am very firmly of the view that I should not grant leave to the mother to oppose this application. For all those reasons I will dismiss the mother's application for leave. Before doing so, however, I would note that the mother said in her latest statement:

"Ultimately if the court believes that it is not in F's interests for my application for permission to oppose the adoption application to be granted then I can only accept that decision. I want my son to know when he is old enough and when he has access to these papers that I never stopped fighting for him to come back to me and that I love him dearly and that I did not agree to the adoption."

I respect the mother's statement to that effect and the way in which it is phrased and I understand very much the strength of the mother's feelings but I have to deal with this application on the basis of what is in F's interests, having regard to his welfare throughout his lifetime.

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