England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT sitting in LEEDS

		LS137/14
		5th August 2015

HHJ Troy:

1. The court is concerned in these proceedings with one child [name - "the Child"], who was born on [date].

The Application

2. By application issued on 13^th May 2014, the Child's prospective adoptive parents ["the Prospective Adopters"] apply to adopt her.
3. The Respondent to this application is the Child's Mother [name – "the Mother"].
4. The Child's Father is not named on her birth certificate. He has played no role in her life and has never shared parental responsibility for her. The Mother has named and described the man she believes to be the Child's Father but it has not been possible to locate him or serve him with notice of any of the proceedings in respect of the Child.

Legal Framework

5. This application for an adoption order is made pursuant to sections 49 and 50 of the Adoption and Children Act 2002 which provide that:

49 Applications for adoption

(1)     An application for an adoption order may be made by—

(a)     a couple, or

(b)     one person,

but only if it is made under section 50 or 51 and one of the following conditions is met.

(2)     The first condition is that at least one of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) is domiciled in a part of the British Islands.

(3)     The second condition is that both of the couple (in the case of an application under section 50) or the applicant (in the case of an application under section 51) have been habitually resident in a part of the British Islands for a period of not less than one year ending with the date of the application.

(4)     An application for an adoption order may only be made if the person to be adopted has not attained the age of 18 years on the date of the application.

(5)     References in this Act to a child, in connection with any proceedings (whether or not concluded) for adoption, (such as "child to be adopted" or "adopted child") include a person who has attained the age of 18 years before the proceedings are concluded.

50  Adoption by couple

(1)     An adoption order may be made on the application of a couple where both of them have attained the age of 21 years.

(2)     An adoption order may be made on the application of a couple where—

(a)     one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and

(b)     the other has attained the age of 21 years.

6. Section 1 of the Adoption and Children Act 2002 provides that –

1  Considerations applying to the exercise of powers

(1)     [Subsections (2) to (4) apply] whenever a court or adoption agency is coming to a decision relating to the adoption of a child.

(2)     The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.

(3)     The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.

(4)     The court or adoption agency must have regard to the following matters (among others)—

(a)     the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

(b)     the child's particular needs,

(c)     the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

(d)     the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

(e)     any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

(f)     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—

(i)     the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)     the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii)     the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

(5)     [In placing a child for adoption, an adoption agency in Wales] must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.

(6)     [In coming to a decision relating to the adoption of a child, a court or adoption agency] must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.

(7)     In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—

(a)     coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 [or 51A] (or the revocation or variation of such an order),

(b)     coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances.

(8)     For the purposes of this section—

(a)     references to relationships are not confined to legal relationships,

(b)     references to a relative, in relation to a child, include the child's mother and father.

7. Sections 42 & 43 of the Adoption and Children Act 2002 set out what are described as "preliminaries to adoption" as follows:

Preliminaries to adoption

42  Child to live with adopters before application

(1)     An application for an adoption order may not be made unless—

(a)     if subsection (2) applies, the condition in that subsection is met,

(b)     if that subsection does not apply, the condition in whichever is applicable of subsections (3) to (5) applies.

(2)     If—

(a)     the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or

(b)     the applicant is a parent of the child,

the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.

(3)     If the applicant or one of the applicants is the partner of a parent of the child, the condition is that the child must have had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application.

(4)     If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.

(5)     In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.

(6)     But subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.

(7)     An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given—

(a)     where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,

(b)     in any other case, to the local authority within whose area the home is.

(8)     In this section and sections 43 and 44(1)—

(a)     references to an adoption agency include a Scottish or Northern Irish adoption agency,

(b)     references to a child placed for adoption by an adoption agency are to be read accordingly.

43  Reports where child placed by agency

Where an application for an adoption order relates to a child placed for adoption by an adoption agency, the agency must—

(a)     submit to the court a report on the suitability of the applicants and on any other matters relevant to the operation of section 1, and

(b)     assist the court in any manner the court directs.

8. Section 46 of the Adoption and Children Act 2002 provides that –

The making of adoption orders

46  Adoption orders

(1)     An adoption order is an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter.

(2)     The making of an adoption order operates to extinguish—

(a)     the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,

(b)     any order under the 1989 Act or the Children (Northern Ireland) Order 1995 (SI 1995/755 (NI 2)),

(c)     any order under the Children (Scotland) Act 1995 (c 36) other than an excepted order,

(ca)     any child assessment order or child protection order within the meaning given in section 202(1) of the Children's Hearing (Scotland) Act 2011, and

(d)     any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child's maintenance or upbringing for any period after the making of the adoption order.

"Excepted order" means an order under section 9, 11(1)(d) or 13 of the Children (Scotland) Act 1995 or an exclusion order within the meaning of section 76(1) of that Act.

(3)     An adoption order—

(a)     does not affect parental responsibility so far as it relates to any period before the making of the order, and

(b)     in the case of an order made on an application under section 51(2) by the partner of a parent of the adopted child, does not affect the parental responsibility of that parent or any duties of that parent within subsection (2)(d).

(4)     Subsection (2)(d) does not apply to a duty arising by virtue of an agreement—

(a)     which constitutes a trust, or

(b)     which expressly provides that the duty is not to be extinguished by the making of an adoption order.

(5)     An adoption order may be made even if the child to be adopted is already an adopted child.

(6)     Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.

9. Section 47 of the Adoption and Children Act 2002 sets out the conditions which must be satisfied before an adoption order can be made in the following terms –

47  Conditions for making adoption orders

(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; but this section is subject to section 52 (parental etc consent).

(2)     The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—

(a)     that the parent or guardian consents to the making of the adoption order,

(b)     that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or

(c)     that the parent's or guardian's consent should be dispensed with.

(3)     A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.

(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)     either—

(i)     the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or

(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.

(6)     The third condition is that the child[—

(a)     is the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or

(b)     is free for adoption by virtue of an order made,] under Article 17(1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (SI 1987/2203 (NI 22)).

(7)     The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.

(8)     An adoption order may not be made in relation to a person who is or has been married.

(8A)     An adoption order may not be made in relation to a person who is or has been a civil partner.

(9)     An adoption order may not be made in relation to a person who has attained the age of 19 years.

Background to the Application

10. There have been on-going court proceedings in respect of the Child for the whole of her life.
11. An application for a care order was made in respect of the Child immediately following her birth and on 5^th March 2013 the Child was made the subject of an interim care order and placed in the care of a foster carer. She had supervised contact with her Mother.
12. Following a period of assessment, the Applicant Local Authority in those care proceedings, invited the court to approve a care plan providing for the Child to be placed with prospective adoptive carers with a view to her being adopted. Pursuant to the care plan, direct contact for the Child with her Mother was to be gradually reduced and then terminated prior to her placement with prospective adopters and replaced with indirect, letterbox style, contact.
13. The Mother opposed the applications for care and placement orders and had legal representation in responding to the applications. An appeal against a case management order made in the course of those proceedings was considered and dismissed. At the conclusion of the final hearing of those proceedings, on 11^th September 2013, the care plan was approved by the court and the Child was made the subject of care order and placement orders.
14. The Mother, now representing herself, issued a Notice of Appeal against the orders made at the conclusion of the care proceedings on 11^th September 2013 and her appeal was heard and dismissed by HHJ Tyler on 7^th November 2013. The Mother has represented herself in this appeal and in all subsequent hearings and applications including the hearing before me.
15. The Applicant Local Authority identified prospective adoptive carers for the Child and the final direct supervised contact for the Child with her Mother took place on 15^th January 2014.
16. The Mother applied for permission to appeal against the order of HHJ Tyler and that application was dismissed on 20^th January 2013.
17. On 3^rd March 2014, following a period of introductions, the Child was placed in the care of her Prospective Adopters, where she has remained.
18. On 3^rd April 2014, the Mother issued an application for an order revoking the placement order made in respect of the Child and on 23^rd April 2014, the Mother applied for leave to apply to revoke the placement order which she required pursuant to the terms of section 24(2)(a) of the Adoption and Children Act 2002.
19. The applications in respect of the placement order were dismissed by DJ Lord by order of 6^th May 2014 without a hearing on the grounds that the Child had been placed for adoption.

Events Following the Issue of the Application for an Adoption Order

20. At the first hearing of the application for an adoption order, the Mother indicated that she wished to apply for permission to oppose the application. The Mother's application for permission to oppose was listed for hearing on 21^st November 2014 before DJ Mallon and refused.
21. By notice issued on 13^th February 2015, the Mother applied for permission to appeal against the order made on 21^st November 2014. On 23^rd February 2015, HHJ Lynch considered and refused the application for permission to appeal without a hearing. The Mother requested an oral hearing of her application for permission to appeal. The oral hearing was listed before Mr Justice Mostyn on 13^th March 2015. Mr Justice Mostyn refused the oral application for permission to appeal and listed the adoption application for final hearing on 14^th April 2015 before HHJ Hunt.
22. On 14^th April 2015, the Mother informed HHJ Hunt that she had on 10^th April 2015 applied for permission to appeal against the order of Mr Justice Mostyn. On this basis the final hearing was adjourned. I note that no such application has ever been identified on any court file as having been issued, it was not served on any other party and the Mother had no copy of her application.
23. The Mother did however issue a notice on 2^nd June 2015 inviting the Court of Appeal to "set aside" the order of Mr Justice Mostyn. By letter dated 3^rd June 2015, the Master of the Court of Appeal advised the Mother that she could not appeal to the Court of Appeal against the order of Mr Justice Mostyn but if what she sought was permission to re-open her appeal she must make an application pursuant to CPR 52.17 using form N244 to Mr Justice Mostyn.
24. By form N244 on 10^th June 2015 the Mother applied for permission to re-open her appeal pursuant to CPR 52.17. This application was considered and dismissed by Mr Justice Mostyn that day.
25. CPR 52.17 provides that –

Reopening of final appeals

52.17

(1) The Court of Appeal or the High Court will not reopen a final determination of any appeal unless –

(a) it is necessary to do so in order to avoid real injustice;

(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and

(c) there is no alternative effective remedy.

(2) In paragraphs (1), (3), (4) and (6), 'appeal' includes an application for permission to appeal.

(3) This rule does not apply to appeals to the County Court.

(4) Permission is needed to make an application under this rule to reopen a final determination of an appeal even in cases where under rule 52.3(1) permission was not needed for the original appeal.

(5) There is no right to an oral hearing of an application for permission unless, exceptionally, the judge so directs.

(6) The judge will not grant permission without directing the application to be served on the other party to the original appeal and giving him an opportunity to make representations.

(7) There is no right of appeal or review from the decision of the judge on the application for permission, which is final.

(8) The procedure for making an application for permission is set out in Practice Direction 52.

26. Mr Justice Mostyn did not give permission for an oral hearing of the application to re-open the appeal and since pursuant to CPR 52.17(7) his decision is final I am satisfied that each of the applications which the Mother has made has been dismissed and there is no outstanding appeal or right to appeal in respect of any of them.

Position at this Hearing

27. The Prospective Adopters did not attend this hearing but the child's social worker attended and the Local Authority was represented by its Solicitor. The Mother attended and represented herself.
28. The Mother applied for this hearing to be adjourned on two grounds – first - that she hoped to apply for and be granted public funding to secure legal representation to assist her in responding to this application and second – that her adult son with whom she lives [name – "the Half-Brother"] had consulted a solicitor about this application and wished to oppose the granting of an adoption order in respect of his half-sister. However, the Mother accepted that she had neither consulted a solicitor nor made an application for public funding in the 14 months which have elapsed since the application was made and she had not made any arrangements to do so. She had no evidence to place before the court to suggest that any application for funding for representation made now would be successful.
29. The Mother confirmed that she has not made any further application to this court or any of the Higher Courts in respect of the adoption application neither has her son made any applications to any court in respect of the adoption application.
30. In those circumstances, and bearing in mind the considerations I must apply in exercising my powers in these proceedings set out in section 1 of the Adoption and Children Act 2002 which provides at subsection (1) that my paramount consideration must be the Child's welfare throughout her life and at subsection (3) that any delay in coming to a decision relating to the adoption of the Child is likely to prejudice the Child's welfare I refused the application for an adjournment of this hearing. This is the second occasion when this application has been listed for a final hearing and the Mother has had numerous opportunities over many months to consult a solicitor and to seek public funding for legal representation. There is no evidence before the court that she would, if the application was further adjourned, either see a solicitor or seek or secure public funding for representation. Similarly, the child's half-brother, living with his Mother, will have been well aware of these ongoing proceedings and has made no application in respect of them.
31. The Solicitor for the Local Authority confirmed that the circumstances of the Child and the prospective adopters had not changed since the submission of the report about the application. I then heard representations from the Mother in response to the application.
32. As she has done throughout each of the many hearings during the course of these proceedings, the Mother emphasised her love for the Child. She explained that she thinks of the Child every day. She feels she has made changes in her life since the Child was born and wishes to have the opportunity to demonstrate that she has made changes. She said that she wants to be able to give her daughter "a better future". The matters to which the Mother referred were the same matters to which she has referred in each of the hearings in the course of these proceedings and have been the subject of detailed consideration by the court.
33. In the report filed with the court, it is recorded that the Mother has not engaged in indirect contact with the child and had refused to sign an agreement about indirect contact because she felt that to do so would amount to an admission or an acceptance that the Child would not return to her care. I asked the Mother about contact in general and the question of indirect contact in particular. The Mother agreed that she had refused to sign any agreement about indirect contact for the reasons recorded and though she would wish to have contact with the child her primary wish was to have the child returned to her care.

Judgment

34. In determining this application, the welfare of the Child throughout her life must be my paramount consideration.
35. The application for an adoption order is brought by pursuant to Sections 49 and 50 of the Adoption and Children Act 2002 by the Prospective Adopters who are a married couple, both having attained the age of 21 years and both of whom are domiciled in a part of the British Islands. The Child has not attained the age of 18 years and is not and has not been married or a civil partner.
36. Turning to the "preliminaries to adoption" set out in sections 42 and 43 of the Adoption and Children Act 2002, the Child was placed with the Prospective Adopters by the Local Authority and has been in their care for one year five months now and at all times during the period of ten weeks preceding the issue of their application. I am satisfied based on the report filed with the court that there have been ample opportunities for the Child to be seen together with both Prospective Adopters in the home environment by the Local Authority.
37. The Child was placed for adoption under a placement order and therefore pursuant to Section 47(5) of the Adoption and Children Act 2002, the Mother may not oppose the making of an adoption order in respect of the Child without the court's leave. She sought leave to oppose the order and her application was refused. She appealed against that decision and her appeal was dismissed. She sought to re-open the appeal and her application to re-open the appeal was dismissed. It follows that the Mother does not have the leave she requires to oppose this application.
38. Turning to the matters set out in section 1(4) of the Adoption and Children Act 2002

(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,

The Child is a girl now aged 2 year 5 months old. She is of dual heritage as her Mother is Indian and her Father is British. She has two older half-brothers, both now adults, one of whom was adopted as a young child.

(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),

The Child is too young to express her wishes and feelings regarding this decision but she has been observed to be happy and thriving in the care of the Prospective Adopters.

(b) the child's particular needs,

The Child has no particular health needs though she was born significantly premature and remains small for her age. She has moved from the foster carers with whom she was placed on her discharge from hospital at birth to the care of her Prospective Adopters and the contact which she had with her Mother was terminated prior to her placement with her Prospective Adopters so she has faced a number of changes in her circumstances and therefore now requires stability and the security of a permanent home and family.

The Prospective Adopters are meeting all the Child's needs to an excellent standard and there is no doubt that they will continue to do everything they can to provide her with a happy, loving, secure and stable childhood.

(c)     the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,

Although the Child is settled and thriving in the care of her Prospective Adopters, she may well face emotional difficulties as she grows older and comes to understand her status as an adopted person. She may wish to contact her Mother and she will need the support of her Prospective Adopters in coming to terms with the fact that she has ceased to be a member of her original family. It would assist her if her Mother could engage in the indirect letterbox style contact which the care plan for the Child envisaged would take place, so that she can have information about her Mother as she grows up and so that she can be assured that she is and always was loved by her Mother. I hope that the Mother will feel able to participate in indirect contact in the future.

(e)     any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,

Although the court determined that the Child would be at risk of suffering significant harm if she had been placed in the care of her Mother, with her Prospective Adopters she has not suffered and is not at risk of suffering harm within the meaning of the Children Act 1989.

(f)     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—

(i)     the likelihood of any such relationship continuing and the value to the child of its doing so,

(ii)     the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,

(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.

The Mother does not have the permission she requires to oppose this application for an adoption order and there are no other relatives able to meet the Child's needs. As I have set out above, there would be a value to the Child in indirect contact with her Mother. The Mother does not wish the Child to be adopted and has done everything in her power to secure her return to her care.

39. I am satisfied that it would not be in the interests of the Child to make arrangements pursuant to Section 46 of the Adoption and Children Act 2002 for allowing any person to have contact with the Child other than the indirect contact envisaged by the care plan filed in the care proceedings in her case. The Child has had no direct contact with her Mother for more than 18 months now and to reintroduce such contact given the Mother's opposition to her placement for adoption would be disruptive and damaging to her. It would be of benefit to the Child if indirect contact could be established but it is not necessary to make any order in respect of contact.
40. I have considered the whole range of powers available to the court in this Child's case but the only realistic options for consideration are the granting of this application or an adjournment. The application has been under consideration for many months now. There are no avenues left unexplored which might, on further consideration, lead the court to make a different order or follow a different course in respect of this Child and further delay will be prejudicial to her welfare as her Prospective Adopters need to be
41. I am satisfied that the interests of the Child demand that she is made the subject of an adoption order in favour of the Applicant Prospective Adopters and that to make this order will be better for the child than not doing so.
42. I therefore make the Child [name] the subject of an adoption order in favour of [name and name] the Applicant Prospective Adopters.
43. The Mother was not present in court when this judgment was handed down and therefore did not seek permission to appeal against this order. She is to be provided with a copy of the written judgment with the court order. The Mother needs to be aware that, if she wishes to apply for permission to appeal this order, she must issue a Notice of Appeal so as soon as possible and no later than 16:00 on 26^th August 2015.

HHJ Troy

5^th August 2015