England and Wales Family Court Decisions (High Court Judges)

IN THE FAMILY COURT [LEEDS] sitting at
THE ROYAL COURTS OF JUSTICE

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/10/2016

The Honourable Mr Justice Cobb :

1. The subject of these family proceedings is a little boy, aged 14 months, who I shall refer to as RA. This judgment is delivered at the conclusion of the final hearing of cross-applications concerning RA, namely:

i) An application for an adoption order issued by his current carers, Mr. and Mrs. D; this application was issued on 27 January 2016;

ii) An application issued by RA's maternal grandmother (hereafter 'MGM') on 4 August 2016 for leave to make an application for a Child Arrangements Order, and if granted, for a Child Arrangements Order; and further for leave to remove RA from the jurisdiction to reside with her, her husband, and an aunt (all in the same household) at their home in Latvia.

Further:

iii) Following the hearing of the applications listed above, and following the circulation of the draft judgment, but before the judgment was formally handed down, an application was issued by RA's birth parents for leave to oppose the adoption application; this application was issued on 29 September 2016.

2. This case has a most unusual litigation history, which will be apparent from what I have outlined above, and discuss more fully below. To set the scene, reference should usefully be made to the judgment which I delivered at the conclusion of a Case Management hearing on 6 May 2016 (Re RA (Baby Relinquished for Adoption: Case Management) [2016] EWFC 25). I summarised the issues then before the court at [2] ibid., and set out the essence of my case management decisions at [5]. It will be seen that at that stage, in spite of the wish of the birth parents to relinquish RA without involvement of their families, MGM had been identified as a potential carer for RA, and a provisional assessment of her had been undertaken. At that time, I requested the Central Authority of Latvia to file a full assessment of MGM, I gave permission to the prospective adopters to file evidence, and I directed an expert report on RA's nationality. I directed the listing of the final hearing before me. Funding issues for MGM frustrated attempts to list the case in July, so I arranged for it to be heard during vacation so as to reduce any further delay and anguish for the families involved. Funding difficulties continued to bedevil the case, and I am particularly grateful to those who for periods of time worked pro bono in order to prepare the case for final hearing.
3. A three-day hearing took place from 30 August to 1 September; for reasons more fully explained below, the birth parents played no part. I heard evidence from the prospective adopters, MGM, the social worker, and the Children's Guardian. I reserved judgment. The decision on the applications identified at [1(i)] and [1(ii)] above, and an earlier version of this judgment in draft, was circulated to the lawyers for the parties (but not to the parties themselves) on 9 September with an indication that the judgment would formally be handed down on 29 September. On 22 September, the solicitor for the Local Authority wrote to my clerk in these terms:

"The birth mother … has indicated that she has had a "change of mind" and has attended at Leeds County Court to make an application to oppose the adoption order.  The court staff have, we understand, told her that she cannot make any application until 29 September 2016.  In the circumstances, we consider that an urgent hearing is required." (emphasis by italics in the original).

In light of this, I indicated that I would not after all hand down judgment on 29 September, and I convened a hearing on notice to all parties on 4 October. The mother, appearing in person, confirmed at that hearing her wish to oppose the adoption, and indicated that she had made an application to that effect, supported by a statement. I therefore listed her application for leave to oppose on 10 October. At that hearing, I received additional written evidence from the local authority and Children's Guardian, and heard oral evidence from the birth mother (the birth father was not in attendance), the social worker and Children's Guardian; I received submissions of the parties. This judgment deals with all of the applications.

Background

4. The essential background facts are summarised in [6]-[11] of my earlier judgment (April 2016), which for ease of reference I set out again here:

6. "RA is 8 months old; he was born prematurely, at home, in the presence of a maternal aunt, in August 2015. RA's parents took him straight to hospital where they left him; they did not return to visit him, and have not seen him since. He remained on the Special Care Baby Unit until 24 September 2015. The Local Authority was notified of RA's presence on the ward on the day after his birth, and the social worker urgently contacted the parents to discuss plans for his care. On RA's discharge from hospital, and with parents' agreement, he was placed with a couple, Mr. and Mrs. D, who are 'Early Permanence Foster Parents' (foster parents approved to adopt). He has been with them ever since – altogether 30 weeks, more than three-quarters of his life at the present time.

7. RA's mother and father are Latvian citizens but have lived in England since 2009; they have never married. They separated while the mother was pregnant with RA. RA has two full siblings who live with the mother, and who have contact with their father. The mother and father believe that raising another child within the family would impose upon them too heavy a burden, financially and otherwise. They have indicated that they do not wish to have any form of contact with RA.

8. RA has Latvian nationality. He may well have British nationality too …. RA's forename is a classic English name chosen specifically because his parents want him to have the best chance of integrating here.

9. Both parents gave their consent to RA's adoption in this country by adopters to be chosen by the Local Authority, in a manner which conforms to the requirements of the section 19 and section 20 of the 2002 Act, and the Adoption Agencies Regulations 2005 – the mother gave her consent on 5 October and the father on 16 October 2015.

10. On 4 December the adoption panel considered RA's situation and recommended permanence for RA through adoption; it endorsed RA's placement with Mr. and Mrs. D. This recommendation was not initially approved by the Agency Decision Maker ("ADM"), as the ADM wished the Latvian authorities to be notified of RA's situation. The process of notifying the Latvian authorities commenced on the 15 December 2015.

11. On 14 January 2016, the ADM confirmed the placement for adoption with Mr. and Mrs. D and from that time, his placement with them became an adoptive placement. A few days later, this application was issued."

5. My earlier judgment also reveals that in February 2016, the Local Authority notified the Latvian authorities of the existence of RA; the Latvian authorities traced and contacted MGM who indicated a wish to care for RA. By the time of that earlier hearing, MGM had been provisionally positively assessed.
6. That background history can now be updated in three material respects:

i) In the period following my case management judgment, the Latvian authorities supplied detailed assessments of MGM and her home circumstances; among the assessments is a report from a psychologist; there have been no specific assessments of the maternal step-grandfather and/or teenage aunt but they are referred to in passing within the documents supplied;

ii) RA's mother and father, having reconciled in March 2016, have, as indicated above, very recently changed their mind and now wish to oppose the adoption of RA, and seek his return to their care;

iii) RA is now 14 months old; he has lived with Mr. and Mrs. D for over 12 months. He is described as a happy boy, who has made extraordinary progress in his development, significantly exceeding expected gains following his premature birth. He eats well, sleeps well and enjoys socialising, particularly with the D's wider family. He is nonetheless appropriately wary of new situations and people, and clings to his carers when unsettled.

The prospective adopters

7. When I first considered this case, the prospective adopters were not represented nor were they present at the hearing; they had filed no evidence. I nonetheless had read the Annex A report which gave me much important information about them; the local authority's submissions at the case management hearing reflected their common position. At that stage, I remarked as follows ([37]):

"Mr. and Mrs. D undoubtedly have a solid case for an adoption order in their favour in respect of RA. Of the wide assortment of considerations which will be relevant to the court's appraisal of their situation, Mr. and Mrs. D are likely to be able to demonstrate to a convincing degree that many of them point to a conclusion that it would be in RA's best interests for an adoption order to be made; they can surely maintain (among other considerations) that RA will benefit from the continuity of care which they have provided to him, that RA is settled in the only home he has known and has formed attachments to them, that he has been introduced to and has fledgling relationships with the wider extended family, that he is geographically close to his birth mother, father and siblings should he wish to contact them in the future."

8. Since that case management hearing, Mr. and Mrs. D have taken up the opportunity to file written evidence; they both gave oral evidence before me. Their contribution to my understanding of this case and its nuances has been enormously helpful. My experience of seeing and hearing from the Ds amply supports the comments which McFarlane LJ made in Re W (A child) [2016] EWCA Civ 793 at [81] about the value of hearing "first-hand … from the only two people who know [the child] very well".
9. It was evident that the Ds have found the experience of being propelled unexpectedly into a contested adoption application enormously stressful. They appear to be bruised by the experience; the strain on them was all too apparent, and the developments of the last two weeks will doubtless have heaped further stress upon them. That said, they gave evidence clearly and coherently, and their accounts added significant colour to the picture:

i) They described with engaging humility, indeed awe, their experience of seeing RA for the first time in hospital, specifically how tiny he was, still some weeks premature; Mr. D movingly acted out in court the moment he was able to hold RA for the first time, in the palm of just one hand;

ii) They recounted how for the following 10 days or so, they travelled for more than an hour, after work, to the hospital where RA was being cared for in the neo-natal unit; how they learned about his feeding and oxygen supports, and the multiple tubes, how to bathe him; they would stay with RA until midnight or later, before travelling home, to sleep and repeat the routine on the following day;

iii) They reflected (with total justification in my view) how vital this regular human contact had been for RA; for the first six weeks of RA's life he had experienced little but the mechanical and electronic ambient noises of a busy neo-natal hospital ward, with only a limited degree of consistent nursing care;

iv) They prepared tape recordings of their voices, which they left in the hospital to be played to RA when they were away from him while at work;

v) They expressed their eagerness to get him home, as soon as he was breathing independently of the oxygen machine; they spoke of the enormous pleasure in introducing him to the wider extended family, and the role he currently plays in all their lives across the generations;

vi) They describe him being the centre of their family;

vii) Mrs. D, having worked all her adult life, has now taken an unlimited career break to care for him;

viii) RA is said to be a "daddy's boy" and notices with displeasure Mr. D putting on his tie for work; both described RA's delight when Mr. D returns from work; Mr. D told me that it would make his day to return home to the yelp of welcome from RA;

ix) Mrs. D told me that she had composed a song with RA's name in it, which she routinely sings for him to his evident delight;

x) RA has no comforter (teddy or blanket) – he derives comfort from the smell and feel of Mrs. D's hair, and often goes to sleep nestled into it.

10. It will be more than apparent from the above that Mr. and Mrs. D are deeply devoted to RA; more than once the professionals remarked that the Ds were "besotted" by RA – a description which, in my view, goes only some way to do justice to the manner in which Mr. and Mrs. D gave their evidence about him. The depth of their feeling towards RA, who is in every sense an integral part of their lives, was virtually tangible. The Ds expressed themselves keen to foster RA's heritage as a Latvian child by birth, and have researched ways of doing so. They are keen to embark on life story work, and give the strong impression of being a couple who are not fearful of opening RA's eyes to his birth family in that context. They support mutual indirect contact between RA and his birth parents and separately with MGM.
11. Mr. and Mrs. D were asked to contemplate RA's removal from their care. At an intellectual level they know (and have known all along) that this is indeed possible; they have increasingly allowed themselves to believe that this is no more than a theoretical possibility. Emotionally, however, they simply cannot bring themselves to consider it at all. I accept Ms Branigan QC's submission that the Ds would undoubtedly do their best for RA whatever was required of them, even if it meant handing him over to his natural parent or relative. But they would, in my view, be emotionally torn apart to have do so. Significantly, when asked to consider this scenario, I was struck by the fact that it was the likely effect on RA of removal from their care which was their first and instinctive concern, not their own feelings.
12. Mr. and Mrs. D predictably oppose the birth parents' application for leave to oppose the adoption application.

The maternal grandmother (MGM)

13. MGM is 44 years old; she has three children – RA's mother, a son and a younger daughter. The son lives in the same town in England as the mother. The youngest child, who is still only 17-years old lives at home and attends college; she was the 'aunt' who was present at RA's birth (see [4] above at inserted [6]). Relationships in the home are described in the Latvian social welfare reports as being "close, sweet, supportive and harmonic". MGM works part-time; her husband has full-time work. MGM indicated that she felt that she could take a maximum of two months' leave from work, and thereafter RA's care would be divided between herself, her husband, her teenage daughter, and a family friend who is a nursery school teacher. The family live in a first-floor apartment, and the living conditions are said to be "good".
14. MGM seeks the care of RA. She has not met him, has had no contact with him, and has no actual relationship with him. No one doubts, however, that her application is genuine and heartfelt.
15. MGM participated in the hearing by video-link from Latvia. She gave evidence with the assistance of an interpreter; she speaks no English. She was co-operative with the court process, clear in her answers, thoughtful and congruently emotional at times. My assessment was consistent with the assessment of the psychologist instructed in Latvia, who found MGM to be "approachable", "emotionally slightly labile", "hard-working, responsible, orderly and precise". She has a logical approach to issues, revealed in her responses and judgment. In interview in Latvia, the psychologist found that MGM gave:

"socially desirable answers, [to] show herself in positive light, denies any difficulties and weaknesses what to a certain degree is related to the cognitive process and her desire to become the Guardian [sic]."

I, for my part, attached less weight than the local authority and guardian to MGM's wish to be seen in the most positive light, a not unnatural tendency of those being assessed for court reports; I was nonetheless concerned about MGM's denial of difficulties and weaknesses which it seemed to me are likely to exist in, and may well be exposed by, a placement of RA with her.

16. MGM explained that she regarded it as her "duty" to offer RA a home given that his birth parents were not in a position to do so; she had told the psychologist in Latvia: "that child is part of my flesh and blood, he is my relative and I simply can't act otherwise…". The psychologist described MGM as having "a level of responsibility" towards her grandson; this sense of duty to offer RA a home was a strong theme of her evidence. Although advancing a case to assume the care of RA at this hearing, she told me (as indeed she had told the psychologist) that in fact the best outcome would be for RA to be cared for by his birth mother and father; unsurprisingly, therefore, at the hearing on 10 October, MGM supported the mother's application for leave to oppose the adoption.
17. MGM professes not to understand her daughter's actions in concealing the pregnancy and the birth, and acknowledges honestly to the psychologist that:

"she doesn't know how she will create relationships with her daughter and her family when the child will live with her, she does not know how to talk to her daughter, how to behave."

The psychologist comments (with no small degree of understatement) that there are:

"possible complications in relationships with her oldest daughter who is the biological mother of the child and would visit [MGM] periodically because [MGM] admits for herself that she does not know how to talk to her daughter in general about the occurred situation, how to react and how to create further relations."

18. It was opined by the psychologist that MGM lacks some flexibility in dealing with new situations, when she can "get confused, feels insecure and anxious in situations that are unclear, and unknown". MGM nonetheless shows a reasonable level of understanding about the needs of RA, can demonstrate positive methods of discipline, and sees the importance of providing a safe home for RA. Significantly it is said:

"She is aware that the child might be emotionally engaged with the foster parents in England but expresses interest and motivation to see specialists and work with herself and the child to create safe connection to the child that could be evaluated as positive resource [sic.]" (emphasis by underlining added).

As to the complexities of caring for a child who is attached to other carers, it is said that MGM:

"is aware of this situation and its danger, expresses and shows interest, readiness and motivation to visit a specialist and work with her and the child to create safe connection with the child [sic.]"

19. MGM proposed to the Guardian that the transition of RA from the care of the Ds into her care could be achieved by her staying for a short time with her daughter in England (i.e. RA's birth mother), and establishing new family relationships in that environment. Given the extraordinary scope for confusion and conflict in such an arrangement, this proposal was unsurprisingly not pursued.
20. It is argued on behalf of MGM that as the Ds were approved as Early Permanence Placement (EPP) foster/adopters, and were caring for RA in that capacity, they should, and indeed will, accept a move of RA from their care, as they have been selected and trained to do. Ms. Branigan relied on comments of Sir James Munby P in the decision of Re T (A child)(Early Permanence Placement) [2015] EWCA Civ 983 in seeking to make good this case. I consider Re T distinguishable on its facts in a number of respects, most notably that the EPP carers in Re T were, at the time at which their role was being debated, only at the fostering stage and had not been approved for adoption of the child. Since January, RA has been with the Ds in an adoptive placement. RA has lived with them virtually all of his life (not the "unexceptional time" for which the carers had cared for the child in Re T – see [51]). The legal status of the placement at the point of the challenge is significant, as is the reasonable expectations which accompany that status (irrespective of any potentially misleading representations which were made by the local authority at the time, see [30] below). A further, final, and crucial point is that RA is oblivious to whether Mr. and Mrs. D are at any one time fosterers or prospective adopters; he just knows them as his parents.

The birth parents

21. The birth parents' position in April 2016 was fully set out at [25] of the earlier judgment ([2016] EWFC 25) which contains the key text of the mother's witness statement. The essential position of the birth parents at the hearing on 30 August to 1 September remained the same; they "very strongly" wished for RA to be adopted by the Ds: "it is the only home he has ever known and he should stay there".
22. The birth parents played no part in the hearing of the cross-applications identified in [1](i) and (ii) above, but had confirmed both to the Children's Guardian (at a meeting in late June 2016) and to the social worker (before and during the final hearing, by text messages which were read out to the court) that they remained of the view that RA should be adopted by the Ds; they expressly confirmed during that hearing that adoption would be "the best option" (see [31](vi) below). The case proceeded on the basis that in the event that the adoption application failed, they would seek to care for him in preference to RA being placed with MGM (as the mother had indicated in her April 2016 statement). It is fair to observe that while initially the birth parents rationalised their relinquishment of RA by reference to their own perceived practical difficulties in caring for him and their wish to promote an English life for him, by the time of the hearing they seemed – from their discussions with professionals – much more focused on what they saw to be the reality of RA's strong attachments to his carers and the risks to him of disturbing those.
23. After I distributed my draft judgment on 9 September (which contained the decision on the applications then before the court), the birth parents notified the social worker that their position had changed. On 29 September, they issued an application (in the wrong form, but I have deemed it to be an application under section 47(3) or section 47(5) of the Adoption and Children Act 2002) seeking the return of RA to their care. In a letter in support of this application, the birth mother says this:

"I want you to know that I no longer consent to [RA] being adopted and I ask that he is returned to the care of me and his father… So that he can live with us and our other two children…"

24. She explains in the letter that she did not realise that she was pregnant in the summer of 2015, and therefore had had:

"… no time to come to terms with the idea of having a baby. At that time, I was living with my two daughters in one room in a shared house and did not have a good job. I was living separately from the father of all three children… I did not believe that I would be able to care for another child properly."

She asserts that her circumstances have now changed: that she is reconciled with the children's father, that they live in a "nice three-bedroom house and have a car". She goes on:

"I worry for [RA] if he is adopted. I am very grateful the family who are looking after him and I am sure he is well cared for. But when [RA] gets older he will not understand why he has not been allowed to live with the rest of his family and his two full sisters. He needs his birth parents and his birth siblings and to know the rest of his wider family in Latvia. It cannot be best for him to live away from his birth family. I think you will be unhappy when he is older and discovers he has a family who love him and who he was not allowed to live with."

25. The birth mother states in her letter that she did not understand that she may be able to get help with housing and childcare when RA was born; she further asserts that from the moment she signed the consent forms she did not think she could do anything to have RA restored to her care. She, however, accepted in oral evidence that the consent forms were translated to her in Latvian and she understood them; these forms contain advice about applying for leave to oppose the adoption.
26. The birth mother further maintains that in June 2016 she told the Children's Guardian that she wished RA to be returned (this is disputed), and was offered a list of children's solicitors. She maintains that she has never had any of the documents available to her translated into Latvian, and at no time had any independent legal advice about the adoption or the options available to her. She maintains that she would like to see RA and that the option of seeing him has not been explained to her.
27. In oral evidence she told me that:

i) She has in fact lived in her current three-bedroom accommodation for about a year; she moved in before the birth father signed the consent form in October 2015;

ii) She reconciled with the father in March 2016; this was before she signed her witness statement, in which she indicated "very strongly" that she wished for RA to be adopted;

iii) She has been in work for at least seven months now; she works nights in a warehouse distribution centre; the father is not in work, but is looking also for employment as a warehouseman. Their plan is that he should obtain daytime work so that at any one time, at least one parent is available for their children;

iv) She explained that she changed her mind only when she was told the outcome of the hearing after 9 September. Her evidence was revealing: "things happened to me, inside me, and just changed me. At first I thought that he would be alright, and then I just changed my mind, [I thought] there is no one better for him as a child. Yes, that's what happened. I was thinking what will happen to him when he learns that he is adopted, it will be hard for him."

v) She converses with her children in English and Latvian.

When given free rein to address the court at the end of her oral evidence, the mother told me that she hoped that "the end result will provide the best for [RA] when everything is taken into consideration bearing in mind his future". Her oral submission at the end of the case was to the same effect; she said: "I just want to confirm that I want everything to be in the best interests of [RA]. Please consider it all." Perhaps significantly, she did not plead for the chance to oppose the adoption and seek the return of RA, but for me to make the right decision for him in his best interests.

The Local Authority

28. The local authority lends its full support for the adoption application. Mr. Feehan QC submitted that the oral evidence in both hearings has, in all respects, reinforced the written evidence – the Ds, he says, have presented as even more impressive as carers than the written word may have given us cause to believe; MGM's oral evidence, he says, lays bare her lack of true appreciation of RA's needs and/or of the potentially conflictual situation into which she proposes to introduce him; the mother's change of circumstance does not cross the threshold and even if it did, it would not be in RA's interests that leave be granted.
29. The local authority, alone among the other parties, made a point of asserting its opposition to the grant of leave to MGM to pursue her application for a section 8 order.
30. The Ds have I believe been well-supported by the local authority social workers and their own agency social workers. However, I felt that they were mistakenly allowed, indeed encouraged, to believe that an adoption order was assured as soon as the match was approved by the Agency Decision Maker in January 2016; this made the emergence of MGM and the contest of their application all the more difficult for them to manage. There is a lesson to be learned here by the local authority.
31. In its opposition to the application by the birth parents for leave to oppose the adoption, the social worker advised as follows:

i) At the first home visit four days after RA's birth, the parents were clear that RA should be placed for adoption, even though this decision was said to be "extremely difficult for [the mother]";

ii) The birth parents confirmed on a visit some weeks later that their decision to relinquish RA was influenced significantly by financial considerations; they were offered different forms of support, but did not consider that this would cause them to change their minds;

iii) The birth parents were reluctant to register the birth, and felt that his ultimate carers should do so; they were nonetheless encouraged to register the birth and did so;

iv) In meetings with the birth parents thereafter, they were able to articulate clearly what adoption would mean for RA; they indicated that they did not want any form of contact with him, save that the birth mother wanted one letter from his adopters once RA had settled with them; a photograph of RA was offered to the birth parents, which they declined; the social worker states that the birth parents were advised to obtain legal advice if they wished to challenge the making of an adoption order;

v) In April 2016, the social worker saw the birth mother again, and clarified her position on the adoption; at that time, the mother was clear that her preference was for RA to be adopted; she filed her statement with the court (see my earlier judgment at [25]) at that time confirming this;

vi) On 31 August, in both telephone and text conversations with the social worker, the birth mother confirmed that she still supported the plan of adoption; she confirmed that she knew the hearing was going ahead. In relation to the proposed adoption, she texted the social worker during the hearing as follows (in answer to a specific query about her current stance): "Yes. Let's keep with the plan. I think it would be the best option"; later, having clarified that this was the final hearing, the mother texted to the social worker: "Alright. Hopefully things are going good. Let me know the situation";

vii) On 9 September, the social worker texted the mother with the outcome of the hearing. On 15 September, the social worker received a text message from the mother asking for advice as she wanted to "appeal" the decision; on 28 September, the social worker met with the mother, who explained that "the situation became more real" for her when the outcome of the hearing was made known to her.

On all visits, the social workers have believed that the birth parents have satisfied themselves that they have understood what has been explained to them, even though English is not their first language. The social worker told me that the conversations often took place in English; indeed, she observed that the birth parents and their daughters conversed in English as much as Latvian.

The Latvian Authorities

32. The Latvian authorities have made a number of submissions to the local authority and to the court, but have not attended the final hearing. I discussed their position extensively in my earlier judgment. They have, as indicated above, most helpfully collated and filed detailed assessments of MGM. I have assumed for this judgment that their position is as I set it out at [17]-[24] of the earlier judgment; specifically, they invite me to take into account its view that proper attention should be paid to the importance of RA being raised in Latvia ("to preserve his identity, including nationality, name and family relations": see [20]), and specifically by his grandmother. The Latvian Authorities are concerned that RA's rights under Article 8 and 20 of the UNCRC are threatened by this adoption; I have already indicated (see [2016] EWFC 26 at [43]) that I do not consider that this is so.
33. Expert evidence obtained in the last few months has confirmed that although a Latvian citizen, RA has a strong claim to British Citizenship, and an entitlement to be registered as a British Citizen under the provisions of section 1(3) of the British Nationality Act 1981.

The Guardian's position

34. The Guardian's position at the Case Management Hearing on 21 April 2016 was summarised at [27] of my earlier judgment; specifically, the Guardian was then submitting that:

"the option of family placement for RA with his grandmother should be more fully assessed, and in that regard she wishes the Latvian Authorities to complete its full assessment of the grandmother and to provide a report of the assessment (in translation) as a matter of urgency. She does not see "how the court can proceed with the adoption application whilst a family member is willing to care and an assessment of that family member is outstanding"" [2016] EWFC 25 at [27]

35. Having considered the matters now more fully, and with the benefit of the various assessments and her own observations, the Children's Guardian lent her full weight behind the adoption application. Her assessment is that if "[RA] is removed from [the Ds] care it is likely that he will suffer emotional harm…" as a consequence of the severing of his primary attachment, and the unpromising context in which he could seek to establish substitute attachments with MGM and her husband. She was particularly concerned about MGM's lack of insight into the needs of RA, her ill-considered plan for transition, and the potential for RA to be thrust into family disputes between his mother and MGM.
36. The Children's Guardian opposed the birth parents' application for leave to oppose the adoption application. She specifically observed:

i) When the birth parents signed the consent forms, they were accompanied and assisted (as the mother accepts) by a Latvian interpreter; the interpreter read the forms to them, and each part of the form was explained. The form records specifically the fact that the parent "understands" that they "may withdraw [their] consent at any time until the prospective adopters start an adoption application in the court" and "will only be able to oppose the making of an adoption order if the court gives [them] permission to do so"; the form also records that the mother was advised of the right to obtain legal advice;

ii) Whenever the Guardian has spoken to the mother, the mother has chosen to speak in English (even when a Russian or Latvian interpreter was present);

iii) That there has been no recent change of circumstances; the birth parents moved into their new home sometime between 5 and 16 October 2015 (when the mother's and the father's signatures were respectively witnessed); they reconciled in March 2016, before the mother signed her statement confirming her consent to the adoption;

iv) In June 2016, the mother did ask the Guardian about obtaining legal advice; she was clear at that stage that she thought that adoption was in RA's best interests, but was interested in obtaining advice about MGM's application. She was provided with a list of children's solicitors. She did not take matters forward.

MGM's application for permission to make a Child Arrangements Order

37. In determining MGM's application for permission to make an application under section 8 of the Children Act 1989, I have given first consideration to the list of statutory factors set out in section 10(9), and must observe that individually and certainly cumulatively they tend to point against the grant of leave. MGM's "connection with" RA (section 10(9)(b)) is as a blood relative but there is no emotional content to the relationship. There is little doubt that MGM's application in itself has caused a degree of "disruption" to RA (section 10(9)(c)), given that the adoption would otherwise have long since been concluded had she not put herself forward as a carer, and her case (if successful) envisions far-reaching "disruption" to RA (see Re M (Care: Contact: Grandmother's application) [1995] 2 FLR 86). The local authority has clear plans for RA which are inconsistent with MGM's aspirations, and RA's birth parents' "wishes and feelings" are fundamentally opposed to MGM's objectives (section 10(9)(d)). If the right to family life were to play any part in this test, MGM's claim under Article 8 would be, for reasons which I explain further below not likely to assist MGM.
38. All that said, MGM's case is not in my judgment without merit (see Re S (Contact application by Sibling) [1998] 2 FLR 897, and Re B (Paternal Grandmother: Joinder as Party) [2012] 2 FLR 1358 at [63-65]); on these somewhat unusual facts, she plainly has an arguable case. I say so having regard to the fact that she enthusiastically put herself forward to care for RA as soon as she heard of his existence; moreover, I have noted the social work and psychological evidence provided from Latvia of her positive parenting of her children and her genuine concern to do right by RA, which is buttressed to some extent by my own assessment of her. Moreover, I consider that it is likely ultimately to be in RA's best interests (even though this is not a paramount consideration in this evaluation) that RA should know in due course that I considered his grandmother's claim to care for him truly on its merits and did not reject it at the gateway stage.
39. I therefore propose to grant MGM permission to make her application for a child arrangements order and for leave to remove RA from the jurisdiction.

The law

40. Although the birth parents wish to withdraw their consent to the adoption, it is not possible for them to do so at this stage; they gave their consents in October 2015 and could only have withdrawn those consents prior to the date when the Ds made their adoption application in January 2016: see section 52(4) Adoption and Children Act 2002. They do nonetheless have the right to apply for leave to oppose this application; such an application can be brought under section 47(3) or section 47(5) of the Adoption and Children Act 2002 and is determined by reference to section 47(7). This latter subsection provides that a court "cannot" give leave "unless satisfied that there has been a change in circumstances since the consent of the parent was given…".
41. The change of circumstance must be of a nature and degree sufficient to re-open consideration of the issue: Re P (Adoption)(Leave Provisions) [2007] 2 FLR 1069. If there has been a change of circumstance, then I must consider whether it is in the best interests of RA ("throughout his life") that leave should be given. I discuss the law and its application on these facts more fully in the next section of this judgment ('The application for leave to oppose').
42. Indeed, the best interests test is the only authentic principle which governs the cross-applications of the Ds and the MGM; the decision must be in the best interests of RA "throughout his life" (section 1(2) Adoption and Children Act 2002). The unusual facts and issues of this case have some common features with the facts and issues which were discussed recently by the Court of Appeal in Re W (A Child) [2016] EWCA Civ 793; specifically, in introducing the judgment, McFarlane LJ identified that one of the issues of "general importance" for consideration in that case was:

"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." (see [1](1) ibid.)

The parallels with this case are thus clear.

43. While it has been useful to consider the judgment and reasoning of the Court of Appeal in Re W, I have not been diverted from my obligation to focus on the essential statutory framework, and on the following key principles:

i) Any delay in resolving the issue is contrary to RA's interests (section 1(3) ACA 2002);

ii) A decision on what is best for RA is likely to be materially informed by consideration of the factors set out in section 1(4) of the 2002 Act;

iii) Specifically, in section 1(4)(f) the relationship which RA has with his prospective adopters should explicitly be considered in my overall assessment: per McFarlane LJ in Re W (A Child) [2016] EWCA Civ 793 at [40]:

"it should be self-evident that a prospective adopter with whom a child has been placed under a placement for adoption order will automatically be "any other person" within the context of s 1(4)(f). Such an individual will have the child committed to their care for the express purpose of establishing themselves in the important, if not the most important, relationship of parent to the child both in reality and, if the anticipated adoption takes place, in law. Such an individual will have parental responsibility for the child, shared with the adoption agency and any parent, upon the moment that the adoptive placement commences (ACA 2002 s 25(3)). It is also of note that this court in Re M'P-P (Children) [2015] EWCA Civ 584 held that a local authority foster carer, who intended in due course to put herself forward as a prospective adopter, qualified as "any other person" within s 1(4)(f)."

iv) I must consider the options available for RA in a holistic way, and not consider the options sequentially; there should be a thorough analysis of all of the realistic options (Re JL & AO at [54-56]);

v) Adoption represents a significant interference with family life, and should be assessed by the requirements of necessity and proportionality (see my earlier comments at [2016] EWFC 25 at [32]); that said, I agree with Baker J when he observed that:

"Where parents have relinquished their baby and expressed a wish that he or she be adopted outside the natural family, the degree of interference with family life rights is less than where the parent-child relationship is severed against the parents' wishes. The fact that the parents have taken this decision is an important consideration when determining whether the interference is necessary and proportionate." Re JL & AO at [55] and see also [2016] EWFC 25 at [32]);

vi) The views of birth parents in a relinquished baby case will carry "significant weight" even if they are not decisive (see Baker J in Re JL & AO at [50]); it is perfectly appropriate for the court to have regard to the fact that parents may well wish to make "discreet, dignified and humane" arrangements for the birth and adoption of their baby (Holman J in Z County Council v R [2001] 1 FLR 365);

vii) The right to a private and family life is not a theoretical right or one created by kinship alone; it must have body, and substance: "the existence of "family life" rights under Article 8 is a question of fact": Re W at [79]. The child has no right to be brought up by his or her birth family; as McFarlane LJ said in Re W:

"The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged." Re W [2016] at [71]);

viii) In this case Article 8 rights are engaged, and specifically I consider that:

a) The birth parents initially sought a right to a private life under Article 8, and further sought to exercise this right by inviting the authority to arrange a discreet and confidential adoptive placement for their baby; their right to this private life has not been faithfully observed;

b) The prospective adopters plainly have Article 8 rights to private and family life with RA. Their rights reflect a rich reality, and have real substance;

c) MGM does not in my judgment enjoy Article 8 family rights with RA; her blood relationship to him, albeit not unimportant in many ways, does not on its own create a right which is entitled to protection under Article 8 of the ECHR.

The application for leave to oppose

44. I deal first with the birth parents' application for leave to oppose the adoption, because, if granted, this would almost certainly involve a further adjournment of this final hearing, in order to conduct a wider evaluation of the merits.
45. I have considered the birth parents' application at a hearing specially convened within these proceedings, notwithstanding the extraordinarily late stage at which the application was made. I have proceeded (without demur from the Bar) on the basis that I would be entitled to alter, even reverse, the decision which I communicated in my draft judgment, and could do so at least at any time before the order made in these proceedings is drawn up and perfected (see In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693 @ 697, and Re LB [2013] UKSC 8 at [16]). That said, on the information before me I have reached the conclusion that the application for leave to oppose the adoption application must fail.
46. First, I am not satisfied that there has been a change in the birth parents' circumstances such as to carry them across the first limb of the test. It is clear that the material change in the situation of the birth parents in this case has not been of circumstance, but has been of heart. This was apparent from the mother's comments to me from the witness box – see [27] above, especially [27](iv). Not every change in circumstances will suffice to open the door to the exercise of the judicial discretion: the change needs to be "of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings" Re P at [30]; the change needs to be "relevant" (Re P at [32]) or material to the question of whether or not leave should be granted.
47. In this case, the housing pressure was relieved at about the time that the birth parents gave their consent to the adoption, and this did not impact on their giving of consent, or provoke an immediate withdrawal. The birth mother's employment followed a few weeks or months later, and the parental reconciliation shortly thereafter; neither of these further events had that effect. In short, these changes in circumstances did not operate on the birth parents to cause them to make this application. Even when MGM launched her own application in August, they did not counter with one of their own; by the grandmother's actions they plainly realised that it was possible to challenge the adoption process. I remind myself that in her earlier witness statement to the court (April 2016) the birth mother said this:

"My life has now stabilised and I have a steady job and I feel I could look after him well. I do not, however, oppose the making of an adoption order. Rather I support it…" (see [2016] EWFC 25 at [25(6)]).

This underlines that the operative change of circumstance was not the improvement in their home life. They maintained their explicit support of the adoption up to and throughout the hearing in August/September.

48. The event which caused the change in the birth parents' circumstance, provoking this application, was receipt of the news that this Court had determined that RA would indeed be adopted by the Ds, and that I was on the point of making the final order. This signaled the end of a long process which had begun in the neo-natal ward over one year earlier. The irreversibility of this outcome must have looked stark to the birth parents and was plainly painful to them. It provoked an emotional response in them – a wish to have him back. This was a completely understandable response, but in my judgment did not represent a relevant change of circumstance such as to justify, without more, the grant of leave to oppose.
49. I should add that I do not accept the birth parents' case that insufficient consideration has been given to their possible need for support in the early days of RA's life, and/or to their need for the processes to be conducted in their second language. I accept the evidence of the social worker that they were offered practical support in caring for RA at his birth, but the birth parents rejected this. I am also satisfied that in key meetings with the professionals an interpreter was present; the key documents have been translated for them. There has, in my judgment, been no unfairness in the processes engaged here.
50. If I were wrong in my evaluation and conclusion on the first limb of the test, (i.e. "change in circumstances"), I would nonetheless have gone on to decline leave on the basis that it would not have been in RA's best interests to grant the birth parents' leave. I am wholly satisfied that it is not in RA's best interests for there to be any further litigation about his future, with the inevitable associated delay (section 1(3) ACA 2002), and the equally inevitable disruption to his carers and therefore in all probability to him. Of course I recognise the inestimable benefits to RA, as to any child, of being raised within his or her natural family, and with his full siblings. But I am satisfied that at this stage in this case, such a powerful consideration would nonetheless be significantly outweighed by the damage to his emotional wellbeing of being uprooted from the only parents he knows, with whom he has undoubtedly forged strong mutual bonds. Mr. and Mrs. D have demonstrated extraordinary commitment and devotion to RA from the earliest days of his life, from which he has benefited and from which he will continue to benefit; their loving care has provided rich and fertile terrain into which he has already burrowed roots. By contrast, while the improvement in the birth parents' home circumstances is pleasing to note, on the mother's evidence to me it continues to look precarious; the father is still out of work, and searching for employment. The mother told me that if RA were returned to her care, she would give up her work for a while to care for him; while this may well be necessary in order that RA should have consistency of care, it seemed to me that this may well pitch the birth parents back into the very situation in which they found themselves when RA was born, and which provoked the decision which they now wish to reverse. Further, RA will always carry the legacy of having been relinquished at birth; there is little cause to believe that RA's emotional welfare in the long-term would be better served by being placed back with the parents who chose to relinquish him, rather than by causing him to be raised by the parents who rescued him and offered him a home. I have conscientiously considered the negatives and the positives of the outcomes, either giving or refusing the birth parents' permission to oppose. In summary, the parent's ultimate prospect of success of resisting the making of an adoption order if given leave to oppose does not enjoy the 'solidity' (Re B-S, below at [59] and [74]) which I am enjoined to look for.
51. In determining the birth parents' application, I have considered with care not only the provisions of section 1(4) (the checklist, which I discuss more fully below) and section 1(6) of the ACA 2002 (the width of range of powers and orders), but also the provisions of Re B-S [2013] EWCA Civ 1146 at [74] in particular, and In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. I have considered carefully the holistic needs of RA and his welfare; I have considered whether the ultimate order satisfies the requirements of proportionality. I have reminded myself of what Thorpe LJ said in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 215 about the need to have regard to the impact of the grant of permission on the child within the context of the adoptive family. In that case (Re W), the mother had not seen her child for a considerable time, and the child had been placed with adopters for more than a year. The Court held at [20]:

"To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child. So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity."

52. These birth parents had, by their actions, allowed – indeed encouraged – the forging of strong bonds between RA and his adopters; their oft-repeated indication of their consent to his permanent placement with other parents allowed the relationship between the Ds and RA to develop and strengthen, enjoying the fullest protection of Article 8 of the ECHR. This situation called to mind Sir James Munby P's comments at [74(vii)] in Re B-S ("the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be"), and his earlier remarks in Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431 [2013] 2 FLR 1393 at [37] (in relation to an adoption placement which in fairness was longer than that which obtains here):

"Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?"

53. Mr. Barnes suggested, through his questioning of the Children's Guardian, that there may be an inconsistency in the Court granting the MGM's application for leave to make the application for a Child Arrangements Order (I having already indicated, in my draft judgment, that I would be prepared to do so) if I were then to refuse the birth parents' application. I see no inconsistency in such an approach. First, under section 10(9) there is no requirement on the applicant to demonstrate a change of circumstance. Secondly, in deciding an application for leave under section 10(9) of the CA 1989, the court is not determining any question with respect to the upbringing of a child. Accordingly, section 1 of the 1989 Act does not apply to it, and the child's welfare is not the court's paramount consideration, as it is in this application.

The section 1(4) ACA 2002 considerations:

54. RA has a fundamental "need" (section 1(4)(b)) for a permanent secure home; insofar as anything in life can ever be reasonably guaranteed, this comes as close as anything could be for him in the home of Mr. and Mrs. D. As the statute reminds us (section 1(3)), he is likely to be suffering "prejudice" to his emotional well-being while decision-making about his future is delayed.
55. This is a case in which there is no dispute that the Ds currently provide, and that MGM could provide, good physical care for RA. There is no real analysis at this stage of the birth parents' ability to provide adequate physical care for RA but I have proceeded on the basis that they could, there being no concern about their care of their daughters. But there are significant question marks over the natural family's ability to offer him a secure home emotionally. I am extremely doubtful that MGM could offer such an emotionally secure home, given the difficulties which I find RA would be likely to encounter in transferring his primary attachment from the Ds, the complexities of transition which on any view is likely to be fraught, and the potential for exposure to family conflict. I have some concerns about the birth parents' ability to offer security and stability, given the lateness of their bid to care for him, their change of position driven by emotional reflex rather than well-thought-out practicalities, and the unformed and somewhat tentative plan for his care which they have presented to the court.
56. I have received no specialist expert evidence about RA's attachments, but it has been widely discussed by the social workers, the Children's Guardian and the advocates in this case to describe the instinctive and nourishing quality of relationship between RA and his carers; the essential message from the professionals, which I accept, is that where those attachments are healthy, the child is likely to benefit from emotional security. There is no issue but that RA and the Ds enjoy a profound and secure attachment. Of course, the Ds are the only parents that RA has ever known.
57. Focus was brought at the main hearing to whether those secure attachments could be transferred to another carer, specifically MGM. I have, of course, considered the same question subsequently in relation to the birth parents. This was prompted by the Guardian's comment reflected in my earlier judgment (see [2016] EWFC 25 at [26]) that:

"She considers that RA's positive experience of being parented by Mr. and Mrs. D would stand him in good stead if it proves to be in his overall best interests for him to move to a new home, and he is required to transfer his attachments".

58. The Guardian's earlier expressed opinion reflects what I believe to be reasonably conventional philosophy in the field of child development, but it cannot, indeed does not in my judgment, apply without careful consideration of context. The evidence laid before me strongly suggested that there are a number of factors which would contra-indicate a successful transfer of RA's primary attachments from the Ds to MGM, or to his birth parents, including the following:

i) RA's primary attachment dates back to an extremely early point in RA's life; he first experienced the care of the Ds – and began forming his crucial attachments to them – during the period in which he was still chronologically premature;

ii) RA is currently with the only carers he has ever known; they have cared for him throughout virtually all his life;

iii) The Ds have substantially or indeed wholly believed for some time – certainly since January 2016 – that RA would remain with them forever; consequently, their emotional investment in him has been without limits;

iv) Mr. and Mrs. D would, it is said (and I accept) be devastated if RA had to move from their care; such a decision would be bound to have an effect on their emotional state, and consequently on their caring abilities; in the period, however long it may be, in which RA remained in their care while transfer to MGM or the birth parents was attempted, try as they might they would be unlikely to be able to shield RA from their distress; they would find it nigh on impossible to assist RA to transfer his attachments to another;

v) The Ds would realistically be unable to assist RA to move gradually to his grandmother or birth parents which would, in the opinion of the Guardian and social workers, be the optimum way of transferring his attachments;

vi) RA would be moving into a situation of considerable uncertainty and likely tension within the birth family, certainly if placed with MGM (see below);

vii) RA would experience very considerable feelings of bewilderment, distress, and grief which may go unaddressed in any way which RA would experience as positive;

viii) MGM is unable to offer more than a time-limited opportunity for RA to establish a new primary attachment with her, before she would be required to return to work, devolving the caring responsibilities to a range of others. The birth parents are offering constant care between them, but again this is subject to their work commitments.

59. Because of the lateness of the birth parents' application, and the context in which it was being considered, the issue of transition of RA into their care was not fully explored in the brief evidence. However, much of what I say below about the difficulties of transitioning RA to MGM would nonetheless apply to a similar exercise involving them.
60. I found it instructive to test the viability of MGM's case by charting RA's potential move from the Ds care into her care. All professionals, and indeed the lay parties, have struggled significantly with how this could be accomplished in any realistic way which would not be harmful to RA. Ideally (I emphasise, ideally), the guardian opined, RA would be enabled to move gradually from the Ds to his grandmother, over a period of days extending possibly into weeks, in England, with support and permission from the Ds for that move to be made. But it is acknowledged by all that this will not happen – not because the Ds would consciously obstruct such a course, but they simply would not be able to participate in such an exquisitely painful endeavour. It seems to me that they would find a transition of RA to the birth parents no less distressing.
61. MGM's proposal for her to stay with her daughter, and grand-daughters, while she receives RA into her care, a course which is of course wholly opposed by her daughter, was self-evidently unrealistic. Placing RA in a bridging foster placement was considered and rejected for introducing unwelcome delay, and a further set of carers to whom RA would need to become accustomed before moving again to his grandmother.
62. It was therefore concluded that RA would need to move to his grandmother quickly, and remain with her in England for a period of time with professionals on hand, to help him to settle. However carefully planned, it seems to me to be inevitable that RA would experience a traumatic rupture of the secure attachments which he has undoubtedly formed with the Ds, and this would be likely to play out in challenging behaviour to his grandmother, which I fear she would be ill-equipped to deal with: she has no experience of RA, she speaks no English (and would therefore struggle to comfort RA in words that he would understand), has little insight into the strength of the attachment with the Ds (see [17] above), shows limited flexibility, and is not good at recognising her weaknesses (see [14] above).
63. Once back in Latvia, MGM indicated that within weeks she would have to resume work (she indicated that she would be able to take 8 weeks off work in total), and he would then be offered care by a combination of family and friends: MGM, the step-grandfather, the teenage aunt and a friend. The birth parents' plan would be for the mother to give up work temporarily, and for the care thereafter to be shared between them. I consider that both of these plans would significantly impair RA's ability to transfer or forge new secure primary attachments.
64. Any move to MGM and to Latvia does not attract the support of the birth mother and father; MGM would not be able to look to her daughter for assistance. Far from it. The placement is only likely to cause friction.
65. RA has never experienced any family life with his birth family – so the "likely effect on [him] (throughout his life) of having ceased to be a member of the original family and become an adopted person" (section 1(4)(c)) is divested of any real meaning. The "effect" on him of becoming an adopted person will impact more greatly on issues around his identity, and perhaps poignantly the impact on his emotional development of learning in due course of his original relinquishment. The Ds have demonstrated more than adequately that they are attuned to the "effect" on RA of losing his Latvian nationality culture and heritage if he were to be adopted by them, and have taken appropriate steps to address this. Any potentially damaging effect on RA of having ceased to be a member of his birth family will I hope be mitigated by the fact that there will be mutual indirect contact which will maintain the link between RA and the birth family. His "background and … relevant characteristics" (section 1(4)(d)) include not only his heritage (see above) but also consideration of his position in the sibling group, and his loss of a potential sibling relationship with his sisters. But it is only that – a potential relationship. If he were placed with his grandmother, he would be unlikely to enjoy any significant relationship with his sisters. It was revealing that the mother apparently (according to MGM, but I emphasise that I make no finding about this) threatened her younger sister with the severance of all family contact with the girls in the event that she disclosed to MGM the existence of the premature baby. Whatever the truth of that assertion, it is plain that the young maternal aunt carried a significant family secret for eight months or more.
66. There is no doubt in the Guardian's mind that RA would be likely to suffer significant emotional harm (section 1(4)(f)) were he to be moved to live with MGM; the process of moving him would be damaging, as would the result.
67. There is force in the Guardian's submission that the MGM is not well-placed to mitigate the effects of harm given her lack of English, her lack of knowledge of RA, and her limited opportunity to spend time with him before she had to resume work.
68. Importantly, the court must consider "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 "the likelihood of any such relationship continuing and the value to the child of its doing so" (see section 1(4)(f)). The prospective adopters are clearly included within that category of person; they can of course offer RA something unique, which is continuity of care from shortly after his birth, throughout his childhood. They have the benefit of being able to assert and rely on an established 'status quo' for RA which has benefits recognised both socially/emotionally (Bowlby et al) and neurologically (see Re M'P-P (Adoption Proceedings) [2015] EWCA Civ 584 (at [47-50]). Apart from the obvious blood tie to MGM and the birth parents, RA has no actual relationship with any of his family members; he has never met MGM and last had any contact with the birth parents when they left him on the neo-natal unit as a premature baby. This reduces significantly the "value" (see above) which can be attached to such a relationship, let alone its continuation. The "willingness" of MGM to offer RA a secure home is not in doubt; I am impressed with the way in which she has pursued her ambition through to the conclusion of this final hearing. It is however her "ability" to do so which I find is wanting. The "willingness" of the birth parents is only of very recent origin. The "willingness and ability" of the Ds to offer a secure home to RA is tried, tested and proven for a period of over one year.
69. Finally, I have regard to the "wishes and feelings" of key protagonists – the birth mother and father, MGM and the Ds (section 1(4)(f)(iii)). The birth parents and MGM now oppose the adoption, and of course I take their views into account. It may indeed give RA some comfort to know that – in the end – all key members of his natural family showed a clear interest in claiming him, and wanting to raise him. I take into account too that exactly a year ago the birth parents gave their clear consents to adoption; they expressly repeated this consent more than once over the last year, and appeared until the last moment to be supportive of the Ds' application. As a matter of law, their consents remain in place (see [40] above). Their recent change of stance is an understandable and emotional reaction to the finality of this process, but does not detract significantly from the clarity and consistency of their position for all but the last few days.

Conclusion

70. Having weighed carefully all the matters discussed above, I have reached the clear conclusion that RA's best interests will be served by him remaining throughout his childhood in the loving care of Mr. and Mrs. D, in whose favour I propose to make an adoption order.
71. The relevant factors in this case, while not all one way, nonetheless cumulatively point overwhelmingly to this outcome as the best possible one for RA. The risk of disruption to the secure attachments which RA has forged with the Ds cannot in his interests be taken. I consider that the prospects of him ever forging an equally, or even a sufficiently, strong attachment with either his birth parents or MGM are poor, given their respective plans for his future care. The consequences for RA if he failed to achieve that level of security could be catastrophic for his emotional well-being and development. I am as confident as I could be that the Ds can and will continue to meet RA's global needs. This placement affords proper respect to the established Article 8 rights of RA and the Ds.
72. It will be important as RA grows through childhood into adulthood that he learns fully about his Latvian heritage. It is also important that he comes to know that his grandmother, and indeed ultimately his birth parents, laid a claim to care for him. I felt that MGM's stance was honourable; she felt a strong sense of duty to offer RA a home; the presentation of her case proportionate and dignified. I equally recognise and understand the birth parents' emotional reflex as they saw their son standing on the brink of an irreversible legal and emotional commitment to other parents; I don't dispute the genuineness of their yearning to care for him which they had suppressed for much of the last year. Had the circumstances in which I had come to decide this case been different, it may well have been that the birth parents and/or MGM would have had a stronger claim, but I have tried the applications on the facts as they developed, and as they stood at the time of this judgment. As McFarlane LJ observed in Re W:

"Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances. At the earlier time when a placement order is being considered, that side of the balance, which must now accommodate the weight to be afforded to the child's place within the adoptive family, simply does not exist." [65]

73. I support the proposals for indirect contact, and for life-story work which will be greatly to RA's benefit. I am sure that the Ds will be conscientious in fulfilling their obligations in this respect, confident that they will offer RA the "secure, stable, reliable, permanent, lifetime placement" (per Re W at [64]) which he deserves.
74. That is my judgment.