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Cite as: [2015] EWFC B145

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IN THE FAMILY COURT AT EAST LONDON

Case No: ZE47/15

6^th and 7^th Floor

11 Westferry Circus

London

EH14 4HD

Wednesday, 22^nd July 2015

Before:

HER HONOUR JUDGE ATKINSON

B E T W E E N:

LB BROMLEY

and

ROCHE/NICHOLLS

Transcript from a recording by Ubiqus

61 Southwark Street, London, SE1 0HL

Tel: 020 7269 0370

MR R SHOCKNESS appeared on behalf of the Local Authority and the prospective adopter

MS VILLAROSA appeared on behalf of the Birth Mother

MS STIRING appeared on behalf of the Birth Father

JUDGMENT

(Approved)

HHJ ATKINSON:

1. This is an application by the parents of a little girl, L, who was born on 6 December 2007, aged 7, for permission to oppose the adoption order sought by the prospective adopter in the substantive proceedings. L has been placed with her prospective adopter for a year and a month now, pursuant to a placement order and a care order that was made by me at the conclusion of proceedings in October 2013.

2. L’s mother is SN and her father is DR. L has lived her entire life at the centre of court proceedings. There have been two sets of care proceedings in respect of her. The first concluded in April 2012, having begun in 2010, when L was not yet three. They were brought to an end finally by Her Honour Judge Redgrave at Bromley County Court. At the conclusion of those proceedings, Judge Redgrave declined the Local Authority’s invitation to make a care order and placement order and, in accordance with the recommendations of an independent social worker and the guardian, she made an order for residence in favour of the father with a supervision order to the Local Authority. She did so on the basis of evidence that the father had shown signs of being able to turn himself around, prioritise his child and care for L; at that time the mother was not really a contender for care of L.

3. About a year later, in April 2013, there was a referral made in respect of L from the Emergency Duty Team, by L’s mother, that her father had slapped L across the face. That precipitating event led to the proceedings that then commenced in front of me at Bromley County Court. At the conclusion of those proceedings, I found the threshold crossed. Significantly, I found that the father had slapped L in the way that L had described, though he denied it in those proceedings. I found that he was not capable of providing for L’s needs and, although I acknowledged that the mother had made progress in the intervening period, I concluded that she was still not in a position to meet L’s emotional needs, in that she still struggled to prioritise L in the ways that I set out in my judgment and will not set out again now.

4. In addition to that, I noted that she still did not recognise the problems that she had and did not acknowledge them and, as a result of that, I felt she was unable to access the therapy that she so clearly needed. I concluded that neither of these parents was able to care for L and I acceded to the Local Authority’s application to make a care order and a placement order. I heard evidence from the independent social worker, Amanda Gillard, who advised and recommended that L was desperately in need of permanence, and that the best way in which that could be achieved was through adoption. She told me that there were good prospects for an adoptive placement in spite of L’s relatively advanced age. On that basis, and for the reasons that are set out in my very full judgment, on 25 October, I made a care order and a placement order.

5. I am told that the Local Authority matched L with a prospective adopter in January 2014. That match went before panel in March 2014 and was approved. There was then a hiatus between March and 6 June 2014, when L was placed in her prospective adoptive placement, because the mother sought permission to appeal the orders that I had made out of time. I do not have all of the papers in that case, but I have been given the draft notice. It does not bear any court stamps, but it would appear that this is the notice that went before the Court of Appeal. The mother appeared in person. It is significant, in my view, that the grounds of her appeal were not that I was wrong about her or wrong about the father, but rather the grounds of her appeal were that she had effected changes since. The grounds read as follows:

‘The steps I have taken since the decision have been efforts to comply with the court’s recommendations. I have successfully removed all negative influences in my life that would have been detrimental to my daughter. I have attended and successfully completed the freedom programme, which provides counselling about the realities of domestic violence. I am also moving house to a safer location due to my arrears being cleared, and the council are placing me in band one and are therefore treating my case as urgent. Also my daughter has also threatened to kill herself in her adoptive placement and shown signs of separation anxiety, in my view.’

6. The point is that the basis of her appeal was a change of circumstances and a change of circumstances in reacting to the court’s criticisms of her. She was refused permission to appeal, for reasons that are easy to understand, and had she had the benefit of legal advice, which of course parents are denied during these applications, then somebody might have advised her that the better thing to do at that point would have been to apply to revoke the placement order. She would have been entitled to do so because Bromley had not placed the child for adoption at that point. There it is. She did not, and her application for permission was refused. L was placed in her adoptive placement, as I have said, a year and a month ago now.

7. The application to adopt has been made relatively recently on 18 March 2015. I have seen the suitability report or the Annex A report and it approves the placement. Standard directions were given and the parents were invited to say whether or not they intended to seek permission to oppose. Just prior to the last directions hearing, the court had received a one-paragraph letter from the father, indicating that he wished to oppose the adoption. His grounds for doing so, set out in that very short paragraph, were that he had changed, he had found himself a job, he was very much more stable and he had not been involved in any criminal activity for three years; he thought that adoption would not be in L’s best interests.

8. The mother attended on the last occasion with a statement and represented by direct access Counsel at her own expense. In that statement, she made the same points that she made in front of the Court of Appeal. She said that she had changed, that she had diligently set about dealing with the issues in her life that had been raised by me in my original judgment, and that she wanted to be given the opportunity to put a fuller statement in. I acceded to that application to put in a fuller statement and gave the father a similar permission, because, just prior to the listing of the directions hearing, the court received an email from the Local Authority on behalf of the prospective adopter indicating that she wished the hearing to be postponed because she was not in a position to proceed with the application at that time. I have seen the email that comes from her setting out her reasons. They were that, tragically, a year on, there had been significant problems in the placement, including increasing instances of sexualised behaviour from L and what are described by the prospective adopter as “extreme behavioural problems”, such that the prospective adopter indicated in the email to the Local Authority that she felt that she had been left unable to cope. She was critical of the lack of local authority support and stated that she felt that L had ‘severe psychological issues that are, in my opinion, being ignored.’ She stated that, without any proper support and input, whilst she did not want the placement to break down, she felt that it was at a high risk of breaking down. She was sufficiently worried to ask that the application should be delayed. That is quite unusual, and it is very troubling.

9. The case has been listed today for directions only. Mother has her direct access Counsel and as luck would have it for the father his former solicitor is here acting pro bono. I pause to comment that neither of the parents are able to get public funding to deal with what is agreed by all to be an extremely important matter and in respect of which they would be unable to represent themselves properly. Accordingly whilst having the benefit of some lawyers in the case other than the local authority I have pressed everyone to deal with the substantive application for permission today, rather than listing it. Although initially reluctant the local authority has agreed.

The Legal framework

10. The provisions governing the making of an adoption order are contained in Section 47 of The Adoption and Children Act 2002. In this case, the provisions under Section 47(4) apply. L has been placed for adoption by an adoption agency, pursuant to a placement order. I can only make an adoption order under this provision if no parent opposes the making of an adoption order. The parents in this case most definitely do oppose the making of the order but pursuant to Section 47(5) a parent may not oppose the making of an order without the court’s permission. I cannot give permission to oppose the making of the adoption order unless there has been a change in circumstances since the placement order was made and that is set out in Section 47(7).

11. I have considered what I know are the key authorities on these provisions, and indeed Mr Shockness has referred me to them in his argument. The most important of those authorities are Re P (Adoption: Leave Provisions) [2007] 2FLR; Re B-S (Adoption: Application of Section 47(5) [2013] 2FLR 1035; Re H (Adoption Order: Application for Permission to Oppose) [2014] 1FLR 1266. I can summarise the principles as follows.

12. The grant of leave or permission to oppose is a two-stage process. The first question is whether there has been a change of circumstances. The change does not have to be significant but it must be relevant or material to the question of whether leave should be granted. It must be of a nature and degree sufficient to reopen consideration of the issue. Mr Shockness has also relied upon the authority of Prospective Adopters and SA; Re SMM (A Child) [2015] EWHC 327 in which Mostyn J considered further what was meant by change of circumstances. Mr Shockness refers specifically to paragraph 16 and this: “obviously the words ‘a change in circumstances’ are not intended to be read literally. As soon as the placement order is made, the circumstances will change if only by fluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order” Mr Shockness relies heavily upon what he maintains is the insistence through that authority that there should be ‘unexpected change.’ - as in something not in the contemplation of the parties.

13. It seems to me that this authority is not intended to suggest that there need be something so unexpected and unusual as to be beyond the contemplation of the parties at the time of the original proceedings. At the time that the placement order is made, the court looks as far ahead as the timetable for the child will permit. For instance, I would have looked and indeed did look at the fact that the mother was already at the time of making the order in October 2013 indicating a willingness to undertake work; attend the freedom project; undertake some sort of therapy. The time that work would have taken for her to conclude was in my view outside of the child’s timetable. So, whilst it cannot have been outside of the contemplation of the parties that she would have gone on to complete that therapy, the fact that she did (and possibly successfully so) in advance of the making of the adoption order must surely be capable of amounting to a change of circumstances. I can do no better than repeat that the change of circumstances must be of a nature and degree sufficient to justify the reopening of the issue of opposition to the making of an adoption order; something that, had it been known at the time that the placement order was made, would have been weighed in the balance in accordance with Re B-S.

14. If there has not been a change of circumstances that is an end to the matter and permission will be refused. If the answer is yes then I have to go on to consider the second stage and ask whether leave should be given. I need to consider all the circumstances and in doing so I have to have regard to two interrelated questions. One is the parent’s ultimate prospect of success in resisting the making of an adoption order if given leave to oppose. The other is the impact on the child if the parent is or is not given leave to oppose. Always remembering of course that at this stage the child’s welfare is paramount throughout her life.

15. Turning to the parents’ prospect of success that means their prospects of success in opposing the adoption order and not their prospect of ultimately having the child restored to their care. I have to ask myself, are those prospects fanciful, or do they have some solidity. At the same time I have to consider whether the parents have solid grounds for seeking leave, I have to consider carefully whether the child’s welfare throughout her life really does necessitate the refusal of leave. I have to bear in mind at all times adoption is the “last resort” and only permissible if “nothing else will do” and that the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. In other words I have to carry out a proper welfare analysis. I am entitled to do that in these applications on the basis of written evidence and submissions rather than hearing evidence in accordance with the guidance given in Re B-S.

16. I also have to remind myself that the mere fact the child has been placed with prospective adopters and would suffer a short-term disruption if moved cannot be determinative. Finally, I have to bear in mind what was said by Wall LJ in the case of Re P which was that I must not set the bar too high because, ‘Parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.’

Position of the parties

17. The parents’ case is this. Firstly, the father’s case is that he has changed. What he wants for L, he says, is what is best for her. He is very troubled about her being secure in her current placement because of what he has heard about the disruption she has suffered. He is almost more troubled about that than he is about seeking a return of the child to his care. For those reasons alone – that is the problems that she is exhibiting in placement, he feels that he succeeds in demonstrating a change of circumstances even though he may not be able to demonstrate the same change in his life that the mother is able to demonstrate.

18. The mother’s case is that she acknowledges the deficits in her care but she has responded to that and put things right. She says, ‘I have done everything I have been asked to do.’

‘I have been to the freedom project, I have sought my counselling through the freedom project, I have separated from the father, I have a new partner and I have got independent accommodation and made myself independent of my parents or intend to do so.’

19. The Local Authority’s case is that none of this adds up to a change of circumstances sufficient to enable the parents to get over the first hurdle nor does what I have read about L’s disruption in her placement. Secondly, says the Local Authority, if they are wrong about that, nevertheless, there is little prospect of either of these parents succeeding in being able to oppose an adoption. Neither of them are likely to be in a position to be able to care for L in a way that will meet her needs, her desperate need for permanence.

Change of circumstances

20. In my judgment the mother has evidenced in her statement a change of circumstances of a nature and degree that is sufficient to open the door. The base line from which the measurement of change takes place is what I found in my judgment about her back in October 2013. Going back to that judgment I was quite sympathetic to the mother whilst recognising that she was not yet able to care for L.

21. I have set out at some length in my judgment at the conclusion of the care proceedings, in relation to the mother, between paragraphs 71 and 87 that she continued to struggle to understand the issues that were of concern about her at that point. She was still unable to demonstrate an ability to separate from her parents. Back in October 2013 however I did comment that I felt she was showing the beginnings of insight, the beginnings of an ability to put L’s needs before her own. She still demonstrated minimisation of aggression and violence. I was concerned that she had failed to take the opportunity in the intervening period between the two sets of proceedings to seek the work that she so desperately needed through the freedom project. I finished by saying this:

‘I am sorry to have to say that in my judgment the mother is not able to care for L now. She is still hugely emotionally vulnerable. She is isolated and dependent upon her parents and, to an extent, the father. She does not recognise these problems and until she does she is unlikely to be able to access the therapy she so clearly needs. Even if I am wrong about that and she is able to resolve her issues through therapy she would be unable to do so within L’s timeframe. ’

22. It seems to me that since that judgment Mother has evidenced that she has set about dealing with the points that I raised. We can see even in her appeal she says, ‘I have done everything the court has asked me to do.’ She has separated herself from the father. She has sought the assistance of the freedom project and successfully completed the project by December 2013. Indeed I understand it; she has been approached and asked to take a role in the project herself such is her understanding. She has taken steps to clear her arrears and find herself independent accommodation. She has a new partner. She is in a stable relationship. She is accessing work or has the opportunity to access some work. It seems to me that those things in themselves demonstrate a change of circumstance of sufficient degree but that is added to by the circumstances that we find L in.

23. I refer the parties to the case of Re T (Children) [2014] EWCA Civ 1369. This case was an appeal of a refusal to revoke a placement order. However, the situation is comparable as the applicant must also show a change of circumstances. In that case Russell J, giving the Judgment of the full court, was clear the change of circumstances is not limited to a change in the parents’ circumstances and one is also entitled to look at a change in the child’s circumstances.

24. In this case there is clear evidence - brought forward by the prospective adopter herself - of the fact that L is troubled in her placement and has demonstrated extreme behaviours. These behaviours may or may not have settled but this is prima facie evidence to suggest that there may well be difficulties in that placement proceeding under and adoption order. I do not question for a moment the commitment of this prospective adopter who I have every belief, and I am sure the parents will believe, is doing everything she can to meet L’s complex needs and look after her. This is not a problem of her making but the fact of the matter is things had reached such a pitch just prior to the last directions hearing that this lady felt she had to put the brakes on the application for adoption. Therefore, it seems to me those two things combined clearly get mother over the first hurdle.

25. Turning to the father, it seems to me that the father does not get over the hurdle of change of circumstances on the back of his own circumstances alone. Whilst I commend him for getting work, for being out of trouble, for growing up a bit in the intervening period, and I accept at face value his assertion that he has accepted what I have said about him in the judgment. That of itself does not necessarily get over the change of circumstances it seems to me, but L’s change of circumstances I think does get him over that. I turn then to the second stage of the test.

What does the child’s welfare demand?

26. At this point the first question I have to ask myself is whether or not the prospects of success of each of the parents in opposing the adoption order are fanciful or do they have solidity? Turning to the mother, I am not saying that she will be successful in opposing this adoption if giving leave, but I do consider that those prospects are more than fanciful. That is partly because of her own change of circumstances but largely it is because of the presentation of L. The two combined present a troubling picture and one which requires some enquiry in my view. Interrelated with that I have to consider very carefully whether the child’s welfare throughout her life does necessitate the refusal of leave. Put another way, in the case of Re B-S at paragraph 74.3, these are the words of the President:

‘Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the Judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The Judge must keep at the forefront of his mind the teaching of Re B in particular that adoption is the last resort and only permissible if nothing else will do………. the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible.’

27. It seems to me that in this particular case because the mother has quite a strong case for a change of circumstances and her prospects of success have solidity as a result, it follows that I cannot be satisfied that L’s welfare throughout her life does necessitate the refusal of leave. Let us just remind ourselves here that what I am giving is permission to the parents to oppose the adoption; to come forward and argue the point again and add this new evidence into the mix when I do the balancing act again, looking at adoption as against placement with one or other of them. It seems to me in this case the mother does succeed on that and I am going to give her permission to oppose the adoption.

28. The father’s situation is more difficult. I find myself quite troubled by this. Actually it may well be that I am being troubled for no particular reason because at the end of the day it does not much matter. Does his application for permission to oppose gain strength in circumstances in which I am opening up afresh the welfare test and looking at all potential outcomes? Does his position gains strength simply from her position. I can see that there is an argument that that might be the case because if I am looking at all outcomes then I surely have to look at him as well.

29. It seems to me that the question is somewhat academic. I make it absolutely crystal clear that his position is not as strong as hers. However, given the unusual situation which arises here largely because of L’s circumstances as described by the Prospective adopter, I consider that on that basis alone his position is not fanciful and it would be in the interests of this child that all options are before the court one last time. Her welfare demands then that I should not refuse him the permission extended to the mother. I am going to give them both permission.

Prospective adopter

30. I want this to be conveyed to the prospective adopter who I know is likely to be troubled by the fact that there is, she is facing now, the prospect of a contested adoption. The fact that this may well be disruptive to the placement, as I have said already, is not something that should cause me to refuse permission in a case where permission is warranted. It seems to me that by opening this door and looking at the welfare test and the balance, one of the things I am also going to be doing is giving careful consideration to L’s placement. Also, and this is the father’s point, I will consider any support that may be necessary in order to ensure that it is a successful placement. It seems to me that in the event that I approve the placement that will only help L and her carer. Whilst it may seem that this means that the process will be longer, actually it is not going to be that much longer than it would have been if I had refused permission for leave to oppose and was now listing the adoption and given the concerns raised about the stability of the placement I would in any event be requiring the filing of further evidence. That is my decision.

End of Judgment

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