England and Wales Family Court Decisions (other Judges)

NEWCASTLE UPON TYNE COUNTY COURT

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF: A & C (CHILDREN)

		The Law Courts The Quayside Newcastle upon Tyne NE1 3LA
		1st May 2014

1. THE JUDGE: I give this judgment in respect of applications by the birth parents for permission to oppose adoption applications in respect of two of their children. The adoption applications relate to two children: A, who is a young girl now just 6 years of age; and C, a little boy aged 3½. The parents share parental responsibility for A; the father does not have parental responsibility for C but has been fully engaged in the proceedings concerning him.
2. The applications came before me for a hearing on 29^th April 2014. The mother submitted further evidence in the days before the hearing by way of videos and photographs which I had not been able to access on the equipment which was available to me before the hearing. In addition, documentation which I had directed the Local Authority to file was not included in the bundle, most particularly, the reasons of the Family Proceedings Court when final care and placement orders were made in respect of A and C on 24^th May 2012. As will become clear, I have previously read these reasons. In these circumstances, I heard argument on 29^th April 2014 and reserved judgment to allow the missing material to be filed and to provide an opportunity for me to view the DVD evidence submitted by the mother. I now give judgment on 1^st May 2014.
3. There is a complex background to these applications, both in terms of the family circumstances and the applications which have been before the court, in particular during 2013, concerning these two children and their older sisters. I will set out the background insofar as I consider it necessary for these applications to be seen in their proper context.
4. The mother is now aged 32. The father is 60. He is married and has lived with his wife for well over 30 years. They have three adult sons. The father and his wife continue to live together, as they have throughout. The relationship between the mother and father has, therefore, been an extra marital affair for the father.
5. The mother and father have four children. The eldest, L, was conceived when the mother was 16 and the father 44. They were aged 17 and 45 respectively when she was born in 1999. L lived with her mother until she was aged about 18 months, when she moved to her father's care following a non-accidental injury to her caused by her mother. L is now aged 15 and has continued to live with her father and his wife.
6. The second child, E, was born in 2003 and is now aged 10. She lived with her mother following her birth. A was then born in 2008. She too remained in the care of her mother.
7. The Local Authority first issued care proceedings in respect of E and A in November 2008. The proceedings in the Family Proceedings Court concluded on 10^th March 2010 when supervision orders were made supporting the children's placement with their mother. The relationship between the parents was then understood to be at an end. The father was granted parental responsibility for E and A on 10^th March 2010.
8. In 2010, it became clear, however, that the relationship between the mother and father had not ended. The mother duly gave birth to their fourth child, C, later in 2010. A feature of the earlier proceedings had been the father's denial of paternity. It was not until February 2009 that he admitted the paternity of E and A. E was then aged 5 years and A almost twelve months.
9. There were a number of occasions when the children were placed temporarily in the father's care as a result of concerns about the mother's ability to provide safe and consistent care for them. On 30^th September 2011 E, A and C were removed from their mother's care for the final time after a neighbour called police as a result of concern about the mother's behaviour towards the children.. The children were placed in foster care.
10. On 3^rd October 2011, the second set of care proceedings commenced in the Family Proceedings Court. The children had the advantage of representation by the same very experienced children's guardian in those two sets of proceedings.
11. In March 2012, the Local Authority obtained an interim order pursuant to section 34(4) Children Act 1989 authorising the refusal of contact between the children subject to the proceedings and their mother, as a result of her behaviour in contact and its impact on them. She last had contact with them, and particularly A and C for the purposes of this application, in February 2012, now more than two years ago.
12. The final hearing of the care proceedings took place in May 2012 over five days. The Local Authority and the parents were represented by counsel, the children by their solicitor. The Local Authority were seeking final care orders with care plans of adoption and seeking placement orders in respect of E, A and C. The mother was seeking the return of all three children to her care. The father was seeking the placement of E and A in his care.
13. The justices gave their reasons on 24^th May 2012 and made care orders and placement orders in respect of each of the children. They gave very detailed reasons which are now included in the court bundle filed for this hearing. They made serious and wide-ranging findings against both parents. In relation to the mother, the findings included physical and emotional abuse of the children. In relation to the father, the principal findings related to emotional harm, including his delay in accepting paternity, a failure to protect the children from harm from their mother, the children reporting harm to him and his delay in responding to it. The father was found to lack honesty and consistency, in particular, his inconsistent position in relation to the care of the children which had caused confusion for them. The magistrates found many examples of the father behaving to suit his own needs rather than putting the children's interests first. No appeal against the orders was made at that stage by the mother or father.
14. The care plans approved by the Family Proceedings Court provided for a time limited search for prospective adopters for E, A and C together. The plan recognised the strength of the children's relationship with each other and the benefit if a placement could be found for them together. It was anticipated that such a placement may not be found. Sadly, that proved to be the case. No family was identified in the six months during which the search was undertaken.
15. In October 2012, the prospective adopters for A and C expressed their interest in adopting them. They were identified as a suitable match in December 2012. A Looked After Review in respect of E in December 2012 changed the plan for her to long-term foster care.
16. Following the conclusion of the care proceedings, the father, his wife and L had continued to have direct contact with E, A and C. In the light of the identified match with prospective adopters, the direct contact between the father, his wife and L on the one hand, and A and C on the other, ended with a final contact on 18^th December 2012.
17. In February 2013, the prospective adopters were formally approved as a match for A and C. On 9^th February 2013, the Local Authority applied pursuant to section 28 Adoption and Children Act 2002 for permission to place A and C outside the UK in circumstances in which the prospective adopters live outside the jurisdiction. That application was listed before me for directions on 20^th February 2013. On the day before that hearing, the mother made an application seeking to appeal the placement orders which had been made on 24^th May 2012.
18. At the hearing before me on 20^th February 2013, both parents appeared in person. The mother has continued to represent herself throughout. Having explored their respective positions, it was clear that, in fact, the mother was seeking to appeal against the care orders and placement orders. Both parents were seeking the revocation of the placement orders. Against that background, the Local Authority agreed not to proceed to match the children until these issues had been determined. I appointed a children's guardian to represent the children's interests. They were once again fortunate to have the continuity of representation by the guardian who had represented their interests in the previous care proceedings. The parents each lodged applications to revoke the placement order following the hearing.
19. The case came back before me on 14^th March 2013, at which time the father was represented. The Local Authority indicated its intention to apply to revoke the placement order in respect of E in the light of the change planned for her for long-term foster care. The Local Authority also indicated an intention to seek an order pursuant to section 34(4) Children Act 1989 to confirm the position in relation to the mother and to authorise a refusal of contact between E and her father. I was told at that hearing that L was intending to apply for contact with her three younger siblings. The order I made on 14^th March 2013 recorded that the mother and father were both proposing that A and C should be placed in long-term foster care; neither was putting forward a case for the return of A and C to either of them at that stage. On 14^th May 2013, the Local Authority issued its application to revoke the placement order in respect of E and its application for a section 34(4) order in respect of E in relation to both parents.
20. On 12^th June 2013, L's application for contact was issued pursuant to section 26 Adoption and Children Act 2002, for which no leave was required as L is a relative in contrast to the requirement for leave in respect of an application for contact pursuant to section 8 or section 34 Children Act 1989, for which leave would be required. I made it clear that L's application would be considered on its merits, whether the children were subject to placement orders or otherwise at the time of the application.
21. The case came before me on 28^th June 2013 when I determined a series of applications in turn. I refused the mother's application to extend time for appealing against care and placement orders. I refused the applications by the mother and the father to revoke the placement orders in respect of A and C. I refused L's application for contact with A and C. I gave the Local Authority permission to place A and C out of the jurisdiction. There was no appeal against these orders. There were different considerations in relation to the applications concerning E which could not be determined at that hearing. I gave directions to a hearing that was to take place on 26^th September 2013. On 12th July 2013, A and C were placed with their prospective adopters, where they remain.
22. At the hearing in relation to E on 26^th September 2012, I received statements from the parents in which each put forward a case for E's return to their care, which was not something which had previously been put forward by them. This had not been considered by the children's guardian. The applications were therefore adjourned to allow the guardian to address the issue and for the parents, then both acting in person, to have a proper opportunity to consider and respond to her views.
23. There was no issue between the parties that the placement order in respect of E should be revoked. This would have effect of reviving the care order. The Local Authority plan, supported by the children's guardian, was for E's placement in long term foster care. At the hearing on 15^th November 2013, I heard argument in relation to the applications by the parents and L in relation to the parents' application for discharge of the care order and the applications by the parents and L for contact with E. The Local Authority case, once again supported by the children's guardian, was that direct contact between E and her father, his wife and L should end to allow E the opportunity of continuing direct contact with A and C in their adoptive placement, which could not realistically continue if E was having ongoing contact with other members of her birth family.
24. I gave judgment on 20^th November 2013. I revoked the placement order in respect of E. I refused the application for discharge of the care order. I made section 34(4) orders authorising refusal of contact between E and both parents. I refused L's application for contact. I directed a transcript of my judgment, which I approved within a week of the hearing. The transcript records that I considered the decision on contact to be difficult and finely balanced.
25. The father is appealing my decision from 15^th November 2013. I understand that, on 1^st April 2014, the Court of Appeal granted permission to appeal against my decision insofar as it relates to the contact issue only. A hearing is listed in Court of Appeal on 21^st July 2014.
26. To complete the picture, I was told at the hearing in November 2013 that the mother had an ongoing application for contact with L in circumstances in which there had been no contact for some time. Those proceedings were concluded at a hearing before the district judge on 2 January 2014, when an order was made for reasonable contact. The father said at this hearing that that order was in line with the CAFCASS recommendation (by a Family Court Advisor not involved with the proceedings otherwise), that the mother and father could make arrangements for contact between themselves in respect of L, now aged 15. The mother is now having unsupervised contact with L in accordance with L's wishes and facilitated by the father.
27. It is against this complex and lengthy background that the adoption applications issued on 2^nd December 2013 must be considered. The applications were listed for final hearing on notice to both parents on 12^th March 2014. The father returned acknowledgements of service in each case, indicating an intention to attend the hearing but no intention to seek to oppose the adoptions.
28. At the hearing on 12^th March 2014, there was no attendance by either parent at the time the case was ready to be called on, sometime after its ten o'clock listing. I was confident that the mother would attend (from my knowledge of the previous hearings) and so I delayed the hearing in my list. The mother did duly attend and confirmed she wished to oppose the adoptions. She said her understanding was that the father was not attending court because of his concern about the impact of the applications on L. I gave directions for the mother to file a statement setting out the basis of her opposition to the adoption applications. I explained to her in detail, and confirmed in the order I made, that her statement and submissions needed to address changes in her circumstances since the placement orders were made and why she argued that it was in the children's welfare interests that she be given permission to oppose the adoptions. I directed the Local Authority to file a statement in response and listed the application for hearing on 1^st April 2014.
29. I was somewhat surprised to receive a letter from the father dated 13^th March 2014 indicating his intention to oppose the adoptions. He had clearly been informed of the outcome of the hearing the previous day by the mother. His letter explained that he had misunderstood his position. I therefore gave directions for him to file a statement setting out the basis upon which he sought leave to oppose the adoption applications. The hearing on 1^st April 2014 was vacated as it unfortunately coincided with the date of his application for permission to appeal to the Court of Appeal. The case could not be relisted until 29^th April 2014, due to my leave and other listing commitments.
30. Both parents duly filed statements. The mother's statement is at C2 to 49 of the bundle, the father's statement at C50 to 58. The mother's statement and many of the documents attached to it seek to challenge evidence which was before the magistrates in the original care proceedings and the conclusions the magistrates reached when they made care and placement orders on 24^th May 2012. The father's statement rehearsed these issues to a much lesser extent.
31. In the days before the hearing, the mother lodged with the court and served on the Local Authority two discs containing photographs and video clips. There were about 20 photographs and 60 video clips taken at contact at different times before the cessation of her contact in February 2012. The material includes all four children, although predominantly L and E, in a wide range of settings, clearly enjoying themselves. The mother said she took all the video footage and photographs herself and she can, indeed, be heard in some of the videos. The father was present on some occasions. I reminded the mother of the need to focus on the changes since the placement orders were made, but I viewed the material in the light of her submission that they were important in demonstrating the good relationships between the children and that they were not afraid of her. A is seen as a baby and toddler in some of the clips and photographs. C is seen in a few of both the videos and photographs enjoying the attention of his sisters. The Local Authority filed statements addressing the position of each of the parents separately.
32. In the course of the hearing, I heard oral submissions from the mother and father, each having taken the oath, and from the Local Authority's solicitor. During the course of the submissions, I sought to focus both the mother and father on issues of direct relevance to the questions for determination: whether there are changes of circumstances since placement orders were made; and whether it is in the children's welfare interests for permission to oppose the adoptions to be given. It is inevitably difficult for litigants in person to limit representations in such a way. Both parents, but the mother in particular (as at each of the previous hearings) sought to rehearse arguments about why the decision of the Family Proceedings Court was wrong. The father was much more able to focus on the relevant issues.
33. Their position was not assisted by the Local Authority statements, which also rehearsed the Local Authority's case in the care proceedings rather than the findings of the court, and the use of inaccurate terminology and factual inaccuracies. I have taken account of these matters in my evaluation of the arguments.
34. The position of the mother and the father is that they each seek to oppose the adoption applications with a view to securing the return of the children to their respective care. In the case of the mother, she seeks the return of A and C to their care and, if not, she supports their placement with the father. The father seeks placement of A and C in his care but does not support their placement with the mother.
35. In determining these applications, I have applied the following legal framework. The magistrates made placement orders in respect of A and C on 24^th May 2012 pursuant to section 26 Adoption and Children Act 2002. Parental consent was dispensed with in accordance with section 52. Section 47 Adoption and Children Act 2002 sets out the conditions for making an adoption order. The relevant parts are as follows:

(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met;

(4) The second condition is that—

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

(b)...

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

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

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

(7) The court cannot give leave under subsection (5) unless satisfied that there has been a change in circumstances since... the placement order was made.

36. I make it clear that, in the application of these provisions, I have taken account of the following principles. Article 8 rights for respect for private and family life are clearly engaged. There can be no clearer situation where that is the case. The orders proposed are adoption orders, altering the legal relationships for the children so that their relationships with the birth family are terminated. Such an order can only be made where it is necessary and proportionate. Orders contemplating non-consensual adoption are very extreme orders of last resort to be made in exceptional circumstances, where nothing else will do and where no other course is possible in a child's interests: Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33.
37. I approach these decisions on the basis that a less interventionist approach rather than more should be taken unless there are cogent and compelling reasons to the contrary. In accordance with Re G (A Child) [2013] EWCA Civ 965, the court must undertake a global, holistic and multifaceted evaluation of the child's welfare, taking accounts of all negatives and positives of the options in question.
38. Section 47(5) Adoption and Children Act 2002 is intended to provide a real and meaningful remedy in appropriate cases. An application pursuant to section 47(5) is considered in two stages: first, has there been a change in circumstances; second, if so, should leave to oppose be granted? The first question, whether there has been a relevant change in circumstances, was considered in Re P (Adoption and Leave Provisions) [2007] EWCA Civ 616 where Wall LJ said in paragraphs 30 to 32 that the change of circumstances since a placement order was made must be of a nature and degree sufficient on the facts of a particular case to open the door to the exercise of judicial discretion to defend the adoption proceedings. Whether or not there has been a relevant change in circumstances is a matter of fact to be decided by good sense and sound judgment of the tribunal hearing the application.
39. The second question, if there has been a change in circumstances whether leave should be given, was addressed in detail in the judgment of the President in Re B-S [2013] EWCA Civ 1146. At paragraph 74, he said the court needs to consider all the circumstances, in particular two interrelated questions: (1) the parents' ultimate prospect of success if leave is given and (2) the impact on the child if the parent is or is not given leave to oppose, remembering that the child's welfare is paramount at this stage. The court must assess whether the parent has established a solid basis for seeking permission to oppose the application.
40. I pause to record that the welfare consideration is in accordance with section 1 Adoption and Children Act, so that the child's welfare throughout his or her life is the court's paramount consideration and the extended welfare checklist in section 1(4) must be applied, requiring the court to consider, among other factors, the impact on the child of ceasing to be a member of the birth family and becoming an adopted person and the relationship the child has with the birth family, including the likelihood of the relationship continuing and the value of it doing so, the ability and willingness of the birth family to meet the child's needs and the wishes and feelings of the birth family.
41. The President set out ten factors relevant to the weighing and balancing of the considerations in any case:

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

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

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

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

(v) A close focus on the circumstances requires evidence, although typically the hearing will be dealt with on submissions.

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

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

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

(ix) Care must be taken not to attach too much weight to the adverse impact on the prospective adopters and, in consequence, on the child.

(x) The test should not be set too high.

The Changes Relied Upon

42. When focusing on the changes, the following were put forward by the mother and the father. They both relied on L's situation as providing evidence of a positive change: that she is thriving in the care of the father and his wife; and that, following the involvement of a different social worker for L and the Family Court Advisor, the district judge in January 2014 approved an order for reasonable contact so that the mother has unsupervised contact with L which is arranged between the parents themselves. There are a number of changes in relation to L's circumstances. She is having regular contact with her mother. That contact is unsupervised and there is no Local Authority involvement in the contact, which is arranged by the parents and L herself (who is, of course, now 15). The mother argues that that demonstrates that she does not pose a risk to L and, therefore, she should not be considered to pose any risk to her younger children.
43. The mother and the father both argue that the fact that they are able to arrange L's contact demonstrates that the negative relationship between them identified by the magistrates is not a feature of their relationship now. At each of the now seven hearings before me over the last 14 months the mother and the father have had an apparently cooperative relationship and an ongoing knowledge of aspects of each other's lives, reflecting some level of ongoing communication and association in that time.
44. I heard argument about the nature and extent of parenting and anger management work undertaken by the mother during 2013 in particular. The mother disputes the account given by the social worker in her statement as to the work which was proposed and undertaken, the extent of it and the circumstances in which courses were not completed. As I would always in these circumstances, I have given the parents all reasonable latitude in accepting their arguments at their very highest and strongest in determining whether the relatively low threshold of seeking permission to oppose is established.
45. The first change relied upon is L's progress in the care of the father and his wife. L is now 15. She was 13 at the time of the final hearing before the Family Proceedings Court and had lived with the father and his wife since she was only 18 months of age. She was then and is now clearly settled and well cared for by them. This does not, in my judgment, establish a change in circumstances since the placement order was made.
46. The arrangements for L's contact with her mother have, however, progressed. The mother argues that this shows a significant change which is relevant to the issues concerning A and C. In this regard, I found it significant that, at this hearing (as at the hearing before me in November 2013 and, indeed, at all hearings before me) an ongoing strong theme and, in fact, the dominant theme has been (as I said in my judgment in November 2013) the mother's lack of acceptance of the decision of the Family Proceedings Court and the reasons for it, and her consequent lack of understanding or acceptance of her responsibility for the children's removal from her care and the difficulties they have experienced as a result of these events.
47. The developments in relation to L's contact also have to be seen in the light of her age and her own wishes and feelings. She is 15 and is now having contact with her mother at her own request. The arrangements for her involve an element of pragmatism as well as consideration of different risks and factors for contact in respect of a 15-year-old girl as opposed to the issues evident from the reasons of the Family Proceedings Court in relation to A and C, two much younger children.
48. I do accept that circumstances in relation to L represent a change. In the circumstances as I have outlined them, I do not, however, consider this is a change of such a nature or degree sufficient to open the door to the exercise of judicial discretion to oppose the adoption applications in respect of A and C.

Welfare Considerations

49. Having determined that there is no sufficient change established, the second stage of the test does not fall for consideration. I will, nonetheless, briefly consider the relevant factors in order to identify those matters which, in my judgment, should properly weigh in the balance of a welfare evaluation in this case.
50. A and C have been in foster care since September 2011, more than two and a half years ago. They have had no contact with their mother for more than two years. They have had no contact with their father, his wife and L for 16 months. They were matched with prospective adopters in February 2013. They were placed with prospective adopters in July 2013 (nine months ago), following a delay in determining the application to place outside the UK because of the challenges to the care and placement orders themselves. A is now just 6. C is 3½. The evidence is that they have settled extremely well. They consider the prospective adopters as their parents and their home to be their permanent home.
51. The parents each seek to oppose the adoption with a view to restoring the children to their care. The question for the court, of course, is their prospects of successfully opposing the adoptions applications. A and C are settled in their placement with the prospective adopters. The prospective adopters have experienced a significant delay in the placement because of the ongoing litigation. The impact of further litigation is a consideration, although given only limited weight in the light of Re B-S.
52. The parents seek to oppose the adoption applications with a view to securing the children's return to their care. If realistic and successful, this would have the obvious advantage of placement within the birth family. If the adoption applications were successfully opposed without a rehabilitation to the family, there would nonetheless be the prospect of some ongoing contact with the birth family.
53. I have identified limited changes of limited relevance when considering the overall circumstances of A and C. Taking account of the parents' circumstances and the changes insofar as I have accepted them, I have concluded that the prospect of the parents successfully opposing the adoption applications is minimal or remote at best. There is, in my judgment, no realistic prospect. In reaching this conclusion, I have taken account of the father's argument that the bar was set too high for him previously. It is not for the court now to revisit the basis of the Family Proceedings Court's decision almost two years ago. A and C have a pressing need for their future placement to be determined and secured. They need it in the short term, medium term and long term, beyond their minority and into their adulthood.
54. My analysis of the welfare considerations, where the children's welfare throughout their lives is my paramount consideration, leads to a clear conclusion, in my judgment, that these applications must be refused. I therefore refuse the applications made by the mother and the father for permission to oppose the adoption applications. Any appeal against my order is made to the Court of Appeal. The time for appeal is 21 days. Any appeal against my decision must be lodged within that 21 day period.
55. In accordance with the guidance of the President in Re W; Re H [2013 EWCA Civ 1177, I will not proceed to deal with the adoption applications themselves until the time for appeal has passed. The adoption applications will, however, be listed on a date more than three weeks from now. That hearing will be on notice to each of the birth parents, although, in circumstances in which their applications for permission to oppose have been refused, and subject to any other orders made by the Court of Appeal, they are not entitled to make representations against the adoption applications at that hearing.
56. I will direct a transcript of my judgment, prepared at public expense on an expedited basis. To avoid what the father and the mother advise me was a delay in them receiving the transcript from the hearing in November 2013, they should confirm their addresses to the court before they leave so that the judgment can be sent to them directly. I will, if they wish it to be done, ask that the court also telephones them to confirm that the judgment has been approved and is being sent to them.
[Judgment ends]