England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT
Sitting at Bristol
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF AO (CARE PROCEEDINGS)

		Royal Courts of Justice Strand, London, WC2A 2LL
		30/06/2016

MR JUSTICE BAKER :

1. On 6 May 2016, I dismissed an application brought by a local authority for a care order in respect of a child, AO, born 16 October 2015. This judgment sets out the reasons for my decision.
2. AO had been relinquished for adoption by her parents at birth. They originate from Hungary but have been living in England for some time. The local authority originally started wardship proceedings under the inherent jurisdiction in the course of which it invited the court to make an order permitting it to send AO to be adopted in Hungary. On 3rd March 2016, I refused that application for reasons set out in a judgment reported at [2016] EWHC 440 (Fam). I concluded inter alia that an order under the inherent jurisdiction authorising the placement of a child abroad for adoption infringed s.85 of the Adoption and Children Act 2002. I pointed out that the prohibition under that section would not apply if the child was in care under Part IV of the Children Act and the court was persuaded to make an order under Schedule 2 para 19 permitting the local authority to arrange for the child to live in Hungary. At that stage, however, no such application was before the court. At paragraph 89 of the judgment, I said:

"I wish to emphasise that nothing I have said so far goes to the merits of the proposal that AO be placed in Hungary. In stating the legal principles and procedures to be followed in cases involving relinquished babies, I have deliberately refrained from expressing a view as to what is the right outcome for AO. That issue must be argued on another occasion before a court exercising the proper jurisdiction. I would therefore propose that, if the local authority elects to proceed with an application for a care order and an order under schedule 2 para 19, the proceedings should be started and transferred to me as soon as possible. I would hope that space in my list could be found to determine the application within the next three months."

3. Shortly afterwards, on 1 April 2016, the local authority filed this application for a care order and subsequently filed a care plan based on the proposal to place AO in Hungary pursuant to Schedule 2 para 19. It was possible to dispense with a number of case management stages of the public law outline. A final hearing took place on 3 and 4 May 2016 at which the issues were (1) whether the threshold criteria for making a care order under section 31 of the Children Act were satisfied; (2) if so, whether the care plan based on a placement of AO for adoption in Hungary was in accordance with her welfare interests, and (3) if so, whether the court should approve the placement notwithstanding the mother's refusal to give her consent, on the grounds that she was withholding that consent unreasonably. The local authority and children's guardian invited the court to answer all three questions in the affirmative, but the parents took a contrary position on all three issues. On 6 May, I gave my decision on the three issues, concluding (1) that the local authority had failed to satisfy the section 31 criteria; (2) that in the event that I had found the criteria satisfied, I would have refused to approve the care plan to place AO in Hungary on the grounds that it did not accord with her welfare, and (3) that even if I had approved the plan, I would have held that the mother was not acting unreasonably withholding her consent so that no authorisation could be given under schedule 2 para 19. Following this decision, the local authority indicated that it would proceed, under s.19 of the Adoption and Children Act 2002, to place AO for adoption in this country as soon as possible, in accordance with the parents' wishes.

Background

4. The history of this case is set out in full in my earlier judgment and I include only a summary here.
5. The mother and father, aged respectively 21 and 37, are Hungarian citizens. The father has resided in this jurisdiction for over two years and works at a hotel. The mother came to this country in August 2014 to join her partner, the father, and work at the same hotel. Neither parent has plans to return to Hungary in the foreseeable future. They first came to the attention of the local authority's social services on 1^st June 2015 when a referral was made by a midwife whom the mother had consulted because she was pregnant. The mother had requested a termination of the pregnancy, but this was not possible as she was already at 25 weeks gestation.
6. The local authority started the pre-proceedings process under the public law outline. At pre-proceedings meetings, the mother and father stated that they had come to England to better themselves, that they were not in a position to bring up the baby themselves, that they wanted the baby adopted in England, that they did not want relatives in Hungary to know about the baby, and that they did not want the baby to have information about her origins and history. The mother said that she did not want skin to skin contact with the baby after birth. The parents said they did not even want to know the gender of the baby, and neither wanted any form of involvement after birth.
7. Meanwhile in accordance with established practice, the local authority wrote to the Hungarian authorities. On 15^th September, a reply was sent by Dr Csilla Lantai from the relevant government department in Budapest stating that under Hungarian law the baby would be treated as a Hungarian citizen and that therefore only the Hungarian authorities had the right to decide whether the bay should be adopted. Following this letter, the local authority on 22^nd September, prior to the birth of the baby, filed an application under the inherent jurisdiction of the High Court, seeking a determination from the court as to the child's habitual residence following birth. The matter was referred to me and I listed the application for a preliminary hearing on 28^th September, inviting the Hungarian embassy to send a consular official to that hearing. In the event, the Hungarian Central Authority indicated that neither that authority nor the consulate would be able to attend the hearing, but that they stood by the opinions set out in the letter of 15^th September. At the hearing, I ordered inter alia that the child upon birth should become a ward of court. I further gave permission to the local authority to place the child with foster carers on discharge from hospital, also recording that I was satisfied that in doing so I was not "requiring" the local authority so to place the child. I listed the matter for a further hearing on 23^rd October and gave further directions for that hearing, including inviting the Hungarian Embassy and/or Central Authority to attend the hearing, by video link if they so wished.
8. On 16^th October, the mother gave birth to her baby, who, as agreed, was removed immediately from her care and placed with foster carers. Further directions hearings took place and the case was listed for joint hearing with other proceedings concerning another relinquished baby, JL. At the hearing in Bristol on 21^st December, the parents adhered to their position as set out above. The Hungarian authorities were again invited to attend the hearing but did not do so. Instead, Dr Lantai set out their position in detail in a letter dated 11^th December, confirming the view of the Hungarian authorities that the child should be brought to Hungary and that decisions as to her future were a matter for the authorities of that country.
9. The hearing of the local authority's application under the inherent jurisdiction took place in December 2015 and January 2016 at the same time as the case involving another relinquished baby, JL. At the conclusion of the hearing, I refused the local authority's application for orders under the inherent jurisdiction transferring jurisdiction to the Hungarian courts and authorising the placement of AO in Hungary.
10. Following the judgment, the local authority filed this application for a care order and subsequently a care plan in support of its proposed removal of AO to Hungary. The application was supported by the children's guardian but opposed by parents. As set out above, the application came before me for final hearing on 3 and 4 May 2016. Oral evidence was given by the social worker, mother and Guardian. In her evidence, the mother gave more detail of her background and family in Hungary. She described the difficult economic circumstances of the family. She said that she was sending money back to Hungary for their financial support. She reiterated that she did not want her family to know about the baby. She said that, if they had known about her, they would have said that they could not have afforded to care for her. The mother agreed that one reason why she did not want the child to be adopted in Hungary was because she feared that this would make it easier for her to trace her relatives. She stressed, however, that her principal reason for wanting her baby adopted in this country was because she believed that she would have a better life here.

Threshold criteria

11. The first question to be determined was whether the local authority had proved the grounds for making a care order under section 31(2), which provides:

"A court may only make a care order or supervision order if it is satisfied

(a) that the child concerned is suffering, or is likely to suffer, significant harm, and

(b) that the harm, or likelihood of harm, is attributable to

(i) the care given to the child, or likely to be given to him if the order were not made, not being what it would be reasonable to expect a parent to give to him, or

(ii) the chart's being beyond parental control."

12. In this case, the local authority's case was that, by failing to care for AO themselves and by relinquishing her to be looked after by the local authority, the parents had caused her to suffer significant emotional harm and to be likely to suffer further such harm, that harm being attributable to the care given to her not being what it would be reasonable to expect a parent to provide. The local authority further contended that the fact that the parents said that they were content for AO to be placed for adoption in England did not reduce the harm in question because the harm and likelihood of harm arose from AO

(a) having to be permanently removed from her mother at birth;

(b) having to be cared for by a foster carer, however caring and competent, rather than her own parents;

(c) having in due course to be moved to another carer, whether in England or in Hungary;

(d) being deprived of any relationship with her birth parents and possibly with their extended family;

(e) being deprived in her early weeks and months of experiences consistent with her Hungarian culture and heritage;

(f) being likely to become an adopted person rather than being brought up by her birth family, and having in due course to learn that her parents chose not to bring her up themselves.

13. In oral submissions, Mr Stuart Fuller on behalf of the local authority conceded that not every case where a child is given up for adoption would satisfy the threshold criteria. He submitted that in this case, however, the parents' actions in not only giving AO up but also insisting that she should not be placed in Hungary either with her birth family or with adoptive parents was unreasonable and was causing, or likely to cause, harm to AO in depriving her of the opportunity to live with her birth family and/or in her birth culture.
14. This position was supported by the children's guardian. He submitted that neither parent had in fact provided AO with any care at all. He concluded that it was in her best interests to live in Hungary. The parents' withholding of information concerning the family would prevent her having a complete understanding of her background and history and would impinge on her emotional welfare.
15. On behalf of the parents, Mr Frank Feehan QC, leading Ms Grainne Mellon for the mother and Ms Katherine Dunseath for the father, submitted that the threshold criteria were not satisfied in this case. They reminded me of the definition of "harm" in section 31 (9), and also reminded me of the provisions of section 31(10):

"where the question of whether harm suffered by a child is significant turns on the chart's health or development, his health or development shall be compared with that which could reasonably be expected of a similar child".

Mr Feehan and the juniors representing the parents further cited the well-known observation of Hedley J in Re L (Care: Threshold Criteria) [2007] 1 FLR 2050 at para 70:

"society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."

16. The core submission made on behalf of the parents was that the factual assertions made by the local authority and accepted by the mother did not amount to a finding of significant harm. It was submitted that to find that, as a relinquished child born in this country and now highly adoptable, AO would suffer significant harm as a result of growing up English rather than Hungarian would be a distortion of the statutory criteria. These parents took a decision as to the future of their child which many do not take: that they are simply not ready and not able to care for her and others should do so. They were in early contact with the authorities and fully cooperated with arrangements to ensure more than adequate care. In addition, it was submitted that, contrary to the suggestion that no information had been given by the parents as to AO's background, the parents had in fact given brief but full details of their own families and background and upbringing.
17. In my earlier judgement, I considered earlier reported cases in which a child had been given up by parents for adoption. In particular, I cited the observations of Holman J in Z County Council v R [2001] 1 FLR 365 :

"Adoption exists to serve many social needs. But high among them has been, historically, the desire or need of some mothers to be able to conceal from their own family and friends, the fact of the pregnancy and birth. So far as I know, it has not previously been suggested, nor judicially determined, that that confidentiality of the mother cannot be respected and maintained. If it is now to be eroded, there is, in my judgment, a real risk that more pregnant women would seek abortions or give birth secretly, to the risk of both themselves and their babies …. There is, in my judgment, a strong social need, if it is lawful, to continue to enable some mothers, such as this mother, to make discreet, dignified and humane arrangements for the birth and subsequent adoption of their babies, without their families knowing anything about it, if the mother, for good reason, so wishes."

I observed (at para 47 of Re JL, Re AO)):

"It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best opportunity to grow up in a loving home."

18. As I pointed out in the earlier judgment, very few babies nowadays are given up for adoption at birth. In the first half of the 20^th century, when illegitimacy still carried great social stigma, the numbers of babies adopted at birth were very much greater. As the stigma has evaporated, so the numbers of deduction so the numbers of babies relinquished for adoption have dwindled. New techniques for reproduction have provided different ways of meeting the requirements of couples who are unable to have children themselves. But there remain a few isolated cases where a mother concludes that she is unable to look after her child. It may be because her past history demonstrates that she is incapable of caring for a child. Or it may be that she feels that she cannot keep the baby for other reasons. A civilised society must accommodate such feelings and decisions, as societies always have. These feelings and decisions come within the range of diverse parenting to which Hedley J was referring in Re L. If society does not tolerate and facilitate such decisions, mothers who feel that they cannot keep them babies will be driven to take other measures.
19. It follows, therefore, that the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother's care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother's care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably.
20. The local authority argued that, in this case, the relinquishment has been accompanied by an insistence on the baby being placed in England, and a reluctance to co-operate with attempts to contact the Hungarian extended family or place the child in that country. As a result, A had suffered harm through being deprived of links with her extended family and culture. I agree that on one view this could be considered detrimental, but it is doubtful that it can be regarded as significant harm and, even if it can, I do not consider that the parents can be said to be acting unreasonably. It is not unreasonable for them to want the baby to be placed for adoption in this country. Such views also fall within the range of diverse parenting identified by Hedley J. Unless society tolerates and facilitates such decisions, mothers who want their children to be placed in this country will be driven to take other steps.
21. Accordingly, I concluded that the local authority has failed to prove the threshold criteria for making a care order under section 31 in this case.

Welfare

22. In the light of my decision as to the threshold criteria, it was strictly speaking unnecessary to determine whether the local authority plan for placing AO in Hungary would be the best outcome for her welfare, having regard to the provisions of section 1 of the Children Act. As I indicated at the conclusion of the hearing, however, it is my view, having considered the arguments, that such a plan would not be in AO's overall interests, and I here set out the brief reasons for so concluding.
23. The local authority's consistent view throughout these proceedings was that it was in AO's interests to be brought up in Hungary. She is a Hungarian citizen whose heritage is Hungarian. Other than the place of her birth and placement with her foster carer for the last six months, she has no connection with this country. She has no extended family here. In addition, the local authority submitted that, were she to be adopted here, she would in due course be told of her background and would learn that she has Hungarian parents and extended family. It was argued that, were she then to learn that she had been "turned into" an English child because that was what her Hungarian parents wanted, she would be likely to suffer identity confusion which in turn could lead to emotional harm and stress within her adoptive family. In addition, if she is brought up in England, by the time she learns of a Hungarian background it will be extremely difficult if not impossible for her to make any meaningful connection with her heritage.
24. In reply, the parents' consistent view throughout these proceedings has been that it would be better for AO to be brought up in this country. In addition, she was by the date of the hearing nearly seven months old and settled with her English carer. If she was moved to Hungary, she would move to a country where she is unfamiliar with the surroundings and language. In addition, if placed in Hungary, she would be subjected to at least two further moves of family – an initial preliminary foster placement to be followed by a move to a permanent family. In contrast, if she remained in this country, she would stay with the current carers until such time as an adoptive placement has been found.
25. The children's guardian supported the local authority's plan for moving AO to Hungary. He attached particular importance to her cultural heritage which would not be sustained if she was placed with an English family. A further concern highlighted by the guardian was that Hungary would be unlikely to recognise the adoption in England of a Hungarian child. This could create difficulties were AO to visit Hungary. Her ability to get to know Hungarian culture and background would therefore be impeded. The guardian feared that this might impinge adversely on her ability to gain a true sense of her identity, which in turn could lead to a sense of injustice with adverse consequences for her self-esteem, development and behaviour.
26. Set against that, however, the guardian expressed concern that with every passing week AO was becoming more attached to her current placement. He also pointed out that, if she was to be adopted here, a transition plan would be formulated involving both carers offering reassurance to help her with the change of primary care. In contrast, if she were to be placed in Hungary, the transition timespan would inevitably be much shorter which might cause difficulties in adjustment. Although it had been agreed that her carer and social worker would take AO to Hungary and take part in the transition arrangements, that process would, as the guardian identified, inevitably take place over a shorter period of time than in England. While supporting the local authority's plan, the guardian was concerned that the details of how a Hungarian adoption would be arranged remained unclear, in contrast to the clarity of the process by which an adoption would be arranged in this country.
27. I accept that, other things being equal, it would be in AO's advantage to grow up in her own culture. However, other things are not equal. AO is settled with her English foster carer and a move to Hungary would in my judgment be far more disruptive and damaging than an adoptive placement in this country which will involve only one change of carer, no language difficulties, and a transition that can be arranged at a pace and in a way that best meets AO's needs. It is, of course, very important that AO should be brought up with an awareness of her cultural background, but in my judgment this can be addressed by carefully selecting adopters who are able and willing to accept that she has such needs which they as her permanent parents will have to meet. I acknowledge the potential difficulties if Hungary refuses to recognise an English adoption of a child that it regards as Hungarian, but in my judgment this factor, and the others identified by the local authority, do not outweigh the clear benefits of proceeding to place her for adoption in this country. Accordingly, had I been required to do so, I would not have accepted the local authority care plan as being the right option to meet AO's needs.

Dispensing with consent

28. Again, in view of my earlier decision concerning the threshold criteria, the question whether to dispense with the mother's consent to a placement in Hungary does not arise, but at the end of the hearing I indicated that, had I been required to do so, I would have declined to dispense with her consent and I now set out my reasons for so concluding.
29. Schedule 2 para 19 of the Children Act, so far as relevant to this case, provides:

"(1) A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.

…

(3) The court shall not give its approval under sub- paragraph (1) unless it is satisfied that

(a) living outside England and Wales would be in the child's best interests;

(b) suitable arrangements have been, or will be, made for his reception and welfare in the country in which he will live;

….

(d) every person who has parental responsibility for the child has consented to his living in that country.

…

(5) where a person whose consent is required by sub-paragraph (3)(d) fails to give his consent, the court may disregard that provision and give its approval if it is satisfied that that person

(a) cannot be found;

(b) is incapable of consenting; or

(c) is withholding his consent unreasonably."

30. In this case, only the mother has parental responsibility so the court was only concerned with the question of her consent. The test for dispensing with a parent's consent to a local authority's proposal to arrange for her child under a care order to live abroad is whether that consent is being withheld unreasonably. Older readers may recall that this is in line with the test for dispensing with a parent's consent to adoption under the Adoption Act 1976, (subsequently replaced by the Adoption and Custody Act 2002) as interpreted in reported cases, in particular Re W [1971] AC 682. In Re G (Minors)(Care: Leave to Place Outside Jurisdiction) [1994] 2 FLR 301, Thorpe J (as he then was) accepted the submission that the test was the same, observing (at page 306):

"I am in no doubt at all that para 19 provides a self-contained code. The court, in granting or refusing approval, must apply the considerations contained in sub-para (3). The child's best interests are but one of four specific considerations. They have no paramountcy. In determining whether consent is being unreasonably withheld, the court must look to the broad band within which a reasonable parent may exercise a responsible choice."

31. On behalf the local authority, Mr Fuller submitted that the mother's reasons for withholding consent are superficial and completely failed to take into account the child's long-term emotional and cultural needs. In reply Mr Feehan and his juniors relied on the fact that these parents want to make a life for themselves and have chosen to do so in this country. They have seen this country as one of opportunity and are clear that an adoption such as that which they seek for their child is one which will fulfil all of her needs. Mr Feehan further submitted that, given the weight accorded to parental autonomy in relinquishment cases as described in my earlier judgment, such autonomy would be seriously circumscribed if it were regarded as being unreasonable to exercise it. This would raise a question as to whether the article 8 rights of the parents were being disproportionately infringed.
32. A reasonable mother would, of course, put AO's welfare as her primary consideration when deciding whether or not to consent to a plan to place her abroad. In this case, however, it is the firm view of this mother, and the father, that it is in AO's interest to be brought up in this country. In all the circumstances, I do not see how the mother's view that AO should be placed in this country could be described as unreasonable. It seems to me manifestly to fall within the broadband of choices which a reasonable parent might make. In those circumstances, had it been necessary for me to decide this issue, I would have refused to dispense with her consent under schedule 2 para 19.

Conclusion

33. In the light of my conclusion that the threshold criteria under section 31 are not satisfied, the application for a care order in respect of AO was dismissed. The local authority indicated that it would proceed to arrange an adoption in this country, the parents having given their consent to such a placement.
34. It should not be assumed that this will be the outcome in every case where a child of foreign parents is relinquished for adoption. Each case will turn on its own facts. In this case, it is plain that this is the outcome which best meets the welfare needs of this child. Those needs include being brought up with an understanding of her background and cultural heritage, and those who arrange her adoption should look carefully to ensure that any proposed adopters are aware of this factor and have the ability and commitment to bring her up with such an understanding.