England and Wales Family Court Decisions (other Judges)

Case No: NE136/14 

IN THE FAMILY COURT
The Law Courts

AT NEWCASTLE UPON TYNE
Quayside
Newcastle upon Tyne

(AND BY VIDEO LINK TO LIVERPOOL)

NE1 3LA

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

AND IN THE MATTER OF: C (A CHILD)

Friday, 29^th August 2014

Before:

HER HONOUR JUDGE HUDSON

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Re: C (A Child)

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Solicitor for the Local Authority: Mr Steel

The Mother did not attend and was not represented

The Father did not attend and was not represented

Hearing date: 29^th August 2014

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APPROVED JUDGMENT

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Number of Folios: 54

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JUDGMENT

1.                  THE JUDGE:  This case comes before me today by way of an application which I deemed an application for permission to oppose the adoption application in respect of a little girl, A, who was born on 7^th March 2005 and is, therefore, 9 years of age.  A’s birth parents are M, who is 38, and F, who is 53.  They share responsibility for A, as F is named as her father on her birth certificate.

2.                  The adoption application was issued under a serial number on 16^th May 2014.  It came before me on the first occasion on 4^th August 2014, which was expected to be the Part 1 hearing of the adoption application.  Notice of that hearing was sent to each of A’s birth parents at their last known addresses.  In the case of M, the address of Address B in Anfield, Liverpool and, in the case of F, Address C in Liverpool.  Those notices were sent to each of them on 14^th July 2014 notifying them of the hearing at Newcastle upon Tyne Combined Court Centre on 4^th August 2014.  The circumstances of A and her prospective adopters are such that court hearings concerning A have needed to take place away from the area in which she and her prospective adopters, as well as the birth family, live.

3.                  By a notice dated 17^th July 2014, M confirmed receipt of the notice of hearing.  She completed the form, confirming her address, indicating that she did not intend to attend the hearing on 4^th August 2014 but that she did wish to oppose the adoption.  Accompanying the acknowledgement was a short typed letter, apparently written by M.  It is addressed to ‘Who all it may concern’ and states as follows:

‘I have never wanted my daughter [A] to be adopted.  I have always wanted her to know she is loved by me, her brother and sisters, by uncles and aunts and their families.  I want her to know about her grandad and [Z].  I don’t object to her having her name changed if that is what [A] wants by legal guardianship or deed poll but she is still my daughter until I draw my last breath.’

4.                  No response was received from F.  It was in those circumstances that the case came before me on 4^th August 2014.  Having been made aware of the letter and response from M, I had ensured that this information be relayed to the Local Authority, and through them to the prospective adopters, so that they were aware of the circumstances in which the case was coming before me on 4^th August 2014.

5.                  Unsurprisingly, neither M nor F attended the hearing in those circumstances.  I was particularly mindful of the geographical limitations.  Transport between the Liverpool area and Newcastle upon Tyne is not straightforward.  It takes time and, of course, it costs money as well.

6.                  On 4^th August 2014 I adopted my usual practice when I am aware of circumstances in which a birth parent with parental responsibility seeks to oppose an adoption application.  I gave directions for evidence to be filed relating to the issues the court must consider, deeming M’s response to be an application pursuant to section 47(5) Adoption and Children Act 2002, seeking permission to oppose the adoption application.  The directions I gave on 4^th August 2014 recorded the circumstances of each of the parents and the position that the court was taking in relation to M’s letter.  I directed M to file a statement with the court by 18^th August 2014 and send it to the Local Authority, setting out her grounds for seeking permission to oppose the adoption.  I specifically recorded in my order the areas that needed to be addressed in accordance with the legislative framework and case law: firstly, the changes that she asserts have taken place since the placement order was made in respect of A; secondly, why she argues she has good or solid grounds for opposing the application and why it is in A’s welfare interests for permission to oppose the adoption application to be granted.  I made a similar direction in respect of F, aware that he had been actively involved in proceedings previously, to address the eventuality that he would wish to oppose the application as well.

7.                  I directed the Local Authority to file a statement from the social worker in reply.  I was told that it would be prepared by Eunice Nopondo, the team manager who attended the hearing before me in Newcastle on 4^th August 2014.  I gave directions for the Local Authority to file what I considered to be the necessary material from earlier proceedings to allow me to make a proper determination of the anticipated application for permission to oppose: the earlier court bundles; the threshold findings; any transcript of the judgments given in the earlier proceedings; and, finally, the statements I had directed.

8.                  I listed the case for hearing before me today, 29^th August 2014, at ten o’clock.  Having regard to the distance between here and Liverpool, I made arrangements for the court in Liverpool to have a video link facility so that if either birth parent wished to attend the hearing, they were able to do so at a court local to them.  The order from the hearing on 4^th August 2014 recorded this, so that each of the birth parents would be aware of their ability to attend the hearing from Liverpool.

9.                  The order was sent to each of the birth parents at their addresses on the court record on 7^th August 2014.  No response has been received from either birth parent in response to that order and the notice of hearing.  No statement has been provided by either of them, nor has there been any other communication with the court in advance of today’s hearing.  Mr Steel, the Local Authority solicitor who has attended today’s hearing by video-link in Liverpool, has confirmed that the Local Authority has received no communication from either of the parents.  A statement has been filed by Eunice Nopondo, which sets out the Local Authority’s continuing support for A’s adoption and makes reference to the material filed in earlier proceedings as providing a recent evaluation of A’s circumstances.

10.              The order I made on 4^th August 2014 made it clear that, in the absence of statements being filed and/or either of the birth parents attending, it was likely that the court would determine the application without such documentation from or attendance by one or both of them.  Mr Steel told me today that the Local Authority has tried without success to effect personal service of the social work statement on each of the birth parents.  In the case of F, the process server visited his property, which appeared still to be occupied.  A neighbour informed the process server that F was still living there, but he was not present on each occasion the process server visited.  In the case of M, the address the Local Authority has for her is the same address as she provided to the court only a few weeks ago.  She has not been at that property when the process server has tried to serve the statement on her, nor has there been any sign of her at the property, where the curtains have been drawn.

11.              In those circumstances, I stood the case down this morning for Ms Nopondo to make enquiries of the social work department, mindful that there is ongoing social work involvement by the Local Authority with A’s elder two siblings (Y and X).  Those enquiries have been made and there is no record of any house move on the part of M, nor has she informed the court of any change of address.  In those circumstances, I am satisfied that all reasonable efforts have been made to effect service of today’s hearing on the birth parents by the court and also by the Local Authority to serve the social worker’s statement upon them. 

12.              I have concluded that, in these circumstances and alive to the indication by M from her earlier notice that she did not intend to attend a hearing in any event, I should properly proceed with this application, having regard to the A’s welfare interests and taking ac of the competing Article 6 and 8 rights which are engaged.  I therefore turn to the circumstances which bring these proceedings before me. 

13.              There is a very lengthy history to this application, in proceedings which have taken place out of this area.  A is the youngest of four children to her mother.  Her eldest half-sibling is W, who was born on 22^nd April 1996 and is now 18 years of age, living with her mother.  A has two older full siblings.  On 6^th February 2000, her brother Y was born, who is now aged 14 years.  Her sister, X, was born on 3^rd June 2012 and so is now 12 years of age.  It will be evident that A is the youngest in the family.

14.              The children were all accommodated by the Local Authority and placed in foster care in November 2007 against a background of longstanding Social Care involvement with issues of neglect, drug and alcohol misuse, domestic violence and unsatisfactory home conditions.  The children were moved in June 2008 from their foster placement to what was expected to be a respite placement with the prospective adopters.  The respite placement in fact endured beyond its expected duration, in circumstances in which the children were considered well settled there and expressing a wish to remain in the placement at that stage.

15.              In the care proceedings that followed, the children were made the subject of interim care orders.  A range of assessments was undertaken in the proceedings, including psychological assessments of the parents and children and Local Authority parenting assessments in respect of each of the parents.  In January 2009, W and Y moved from the care of the then foster carers (now A’s prospective adopters) to a different placement.

16.              The care proceedings were concluded at a hearing before HHJ Halbert on 20^th April 2010.  The court approved the threshold findings (in the supplementary bundle for this hearing at pages 1 to 3).  The findings reflect the wide-ranging concerns about the care of the children by their birth parents.  Having determined that the threshold criteria were established, Judge Halbert went on to make care orders in respect of each of the children and, in the case of A and her elder sister X, made orders pursuant to section 34(4) of the Children Act 1989, authorising the Local Authority to refuse contact between the children and their parents.

17.              On 23^rd April 2010, X also moved to a different foster placement.  More recently, she and Y have been placed in foster care together, where they remain settled.

18.              A remained in the care of her then foster carers.  In due course they indicated a wish to adopt her.  In May 2012, at a Looked After Review, the Local Authority approved adoption as the appropriate plan for A.  An assessment of the then foster carers as prospective adopters reached a positive conclusion.  In September 2012, the adoption panel approved the plan of adoption for A.  On 16^th November 2012, the Local Authority issued an application for a placement order, on the basis that any adoption would be by A’s foster carers.

19.              The placement proceedings took a very considerable time to reach their conclusion.  I now have before me the documentation filed in the placement proceedings, together with a transcript of the judgment which was given by HHJ Orrell on 17^th January 2014 when he ultimately made a placement order.  In the course of his judgment, he considered the placement options for A in terms of the appropriate legal framework in circumstances in which, at least in the cases put before the court, neither of her parents was asking for her return.  It is clear from Judge Orrell’s judgment that, in the case of M, that appeared to mask her true position: that A could and should, in fact, return to her care.  The judgment records that F’s evidence revealed a continuing deep seated negativity in respect of A’s placement with her foster carers (and proposed adopters).

20.              The judgment of HHJ Orrell is also included in the supplementary bundle which has been filed.  At page 17 of the bundle, Judge Orrell set out the findings he made in the course of his judgment.  He considered applications for contact with A from both W and X.  HHJ Orrell made the placement order on the basis that he approved adoption as being the appropriate course for A with indirect contact with her birth family, anticipating an adoption application would be made by A’s carers.

21.              On 20^th February 2014, the adoption panel considered the match for A and approved the match with her foster carers as prospective adopters, which was duly ratified by the agency decision-maker.  To complete the chronology, the court has been provided with a letter dated 27^th May 2014 from A’s Independent Reviewing Officer, Rob Brotherson, which lends his support to A’s adoption by the prospective adopters.

22.              I have already recorded the circumstances of the older children.  In the course of the earlier proceedings, Y indicated that he agreed with the plan of adoption if that was what A wished.  So far as W and X are concerned, although they both recognise that A is happy and settled with the prospective adopters, they each indicated they were opposed to A being adopted.

23.              The adoption application is supported by an Annex A report which was prepared by Maria Smith in respect of A.  She had been A’s social worker for a very lengthy period of time, as reflected in the judgment of HHJ Orrell.  She had retired by the time the case came for hearing before me, hence the attendance of the team manager, Ms Nopondo.  The assessment of the prospective adopters was carried out by Lynn Kearns, who is present at the hearing today by video-link from Liverpool.

24.              The plan is for A to maintain contact with her birth family is by way of indirect contact.  A and her siblings have each expressed the wish to maintain direct contact, although it is clear that A’s priority has been for her adoption to proceed.  The judgment of HHJ Orrell made it clear that the circumstances in this case are such that direct contact could not reasonably be contemplated for A.

25.              A is now 9 years of age.  She has lived with the prospective adopters since she was 3.  She has been living with them now for more than 6 years.  She is extremely settled in their care.  She has been telling all who will listen to her how keen she is to be adopted and to become a part of the family of her carers.

26.              It was against that background that the adoption application was issued.  The Annex A report lends its full support to the proposed adoption and provides the context within which I must view the application, as I have deemed it to be, for permission to appeal the adoption application.

27.              It is clear from the short letter filed by M that she is opposed to A’s adoption.  It does not address the test which is required by the court when considering an application for permission to oppose, which requires the court in the first instance to look to the changes which have taken place since the placement order was made.  The placement order was made as recently as 17^th January 2014, now just over seven months ago.  At the time that the adoption application was issued, it had only been made four months previously.

28.              In those circumstances, I have looked to see what evidence there is of any change in circumstances since the placement order was made.  I have not been provided with any evidence from either of A’s birth parents of any changes in their circumstances which would allow the court to revisit the issue in accordance with the test established by the Court of Appeal in Re P (Adoption and Leave Provisions) [2007] EWCA Civ 616, where the Court of Appeal held that the change of circumstances must be of a nature and degree sufficient on the facts of a particular case to reopen consideration of the issue.

29.              I have looked beyond the short letter which was filed by M to the information contained in the social work statement.  There is no material which identifies any change of circumstances which would entitle the court to revisit the issue.  I am very clear on the information before me that the court cannot properly proceed beyond the first limb of the test required pursuant to section 47(5). 

30.              As is my usual practice in such cases, I will nonetheless record my conclusions in respect of the second limb of the test.  I have considered the framework which the court must apply in such a case, looking at the parents’ ultimate prospects of success in opposing the adoption application and the impact on A if permission to oppose is granted, with her welfare throughout her life as my paramount consideration.  I have had regard to the ten factors set out by the President in the judgment in Re B-S (Children) [2013] EWCA Civ 1146.  I am clear that the welfare evaluation overwhelmingly argues against permission to oppose the adoption application being granted.  The reasons for that are well set out in the material before me.  A, now aged 9, has lived with her prospective adopters for more than six years.  She has expressed a strong and consistent wish to be adopted by her carers.  Any grant of permission would prolong what have been years of proceedings concerning A, with what I consider to be no realistic prospect of success in resisting the adoption application.  There is, in my judgment, no good or solid basis for the application. 

31.              I have reached the very clear conclusion that, in A’s case, the application which I deem to be made by her mother for permission to oppose the adoption application is to be refused.  I will defer consideration of the Part 1 application for a period which allows the 21 days in which any appeal must be lodged to elapse.  I will therefore list the Part 1 application before me on a convenient date four weeks from now.  The authorities following on from Re B-S have made it clear that the court can at this stage indicate the likely outcome of that hearing but cannot make an adoption order.  It is clear from all that I have read and heard and, indeed, from what I have said so far, that the arguments in favour of A’s adoption are strong.  It is highly probable that the court will proceed to make the adoption order on the next occasion, unless there is any material to alter the evidential weight as it presently is.

32.              Finally, before I conclude today’s hearing, one further issue requires consideration.  A has made it very clear she wants to be able to use the name of her prospective adopters.  Their name is known to the family because, as foster carers, they were known to the birth family.  Section 28 Adoption and Children Act 2002 prevents a child subject to a placement order from using a different surname without either the consent of her parents with parental responsibility or an order of the court.  A’s birth parents had, in fact, indicated that they would not oppose A using the name of her prospective adopters if that was her wish, although it is right to record that F expressed some reticence about that in circumstances in which A shares his name. 

33.              When considering the issue of A’s name, it has been a strong theme for her that she should be able to use the name of the family with whom she is living.  She is about to start a new school term within a matter of days.  It has been a particular wish on her part to be able to use the name of her choosing, that of her prospective adopters.  A’s welfare is my paramount consideration when I consider this issue.  I have reached a clear conclusion that an order should be made today pursuant to section 28 of the 2002 Act which allows A to take the name of her prospective adopters so that, as she starts her school year in a few days’ time, she can have the name that she chooses and which is that of the family with whom she is living.  I therefore make that order. 

[Judgment ends]