England and Wales Family Court Decisions (other Judges)

The Family Court at Blackburn

		64 Victoria Street Blackburn
		22nd July 2015

JUDGMENT
1. THE JUDGE: I am concerned with the future of a little girl, S-S, who was born on 10^th October 2010. Her case is listed today for the final hearing of an adoption application made by prospective adopters with whom she has been placed. Both her parents have attended court today seeking permission to oppose the making of the adoption order. Her father, E, had sent a statement to the court when originally served with the notice of the adoption application, indicating his intention to oppose. J, S-S's mother, has not done that but has attended today. The local authority as adoption agency is represented by the adoption social worker.
2. Neither J nor E has the benefit of legal help or representation. They both tell me that they have not been entitled to receive Legal Aid in support of their opposition to the adoption. Both wish the case to proceed.
3. The first thing I have to decide is how to deal with the case. There are two alternatives. Firstly I could adjourn the case and give directions for the filing of further statements from the father and the mother, potentially from the local authority and perhaps from CAFCASS. The advantage of that course is that I might have more information available to me. The disadvantage would be delay for S-S at a time when she is due to start school in a very few weeks time. The alternative is for me to commence the case and in the light of what I hear then decide whether I need more enquiries to be made or whether the picture is sufficiently clear for me to be able to reach a conclusion, particularly if prolonging the case would only have the effect of giving the parents false hope of an outcome that in reality was not going to happen.
4. J, I know, having dealt with S-S's case all the way through, would have difficulty if I had required her to provide evidence in writing. She has confirmed that to me. I therefore decided that I would hear evidence from both parents. I have asked them, I hope, all the relevant questions and encouraged them to tell me everything that they think might be helpful and relevant to the decision that I have to make.
5. First of all I must remind myself of the draconian nature of an adoption order made in the face of opposition from a child's birth parents. It is the most profound order that a court can make. It has a lifelong effect, both on the child concerned and on her birth family. It also has a profound effect for the prospective adoptive family.
6. I have re-read, in preparing this ex tempore judgment, the guidance from the Supreme Court in Re B (A Child) [2013] UKSC 33 where the five Supreme Court Justices all gave lengthy judgments, not always entirely in agreement with one another. Where they were in agreement was as to the importance of the court taking into account, whenever it is concerned with a prospective adoption, all of the relevant matters and only arriving at a conclusion that adoption is the right outcome for a child when satisfied that nothing else will do.
7. I have reminded myself of the guidance from the Court of Appeal in the case of Re B-S (Children) [2013] EWCA Civ 1146 where the Court of Appeal gave guidance directly on point to the issues I have to consider and to which guidance I will refer more extensively in due course. I have also reminded myself of the decision of the Court of Appeal in the combined case of W (A Child) and H (Children) [2013] EWCA Civ 1177 where again the Court of Appeal was considering the judges' decisions on precisely that part of the Adoption and Children Act 2002 that I am considering today.
8. Neither parent has issued a formal application for leave to oppose the adoption. I have treated the case as if they had. An application for leave to defend adoption proceedings arises under section 47 of the 2002 Act and, as has been made clear in the authorities, involves a two-stage process. First of all the court has to be satisfied on the facts of the case that there has been a change in circumstances within section 47(7). If there has been no change in circumstances, that is the end of the matter and the application fails. If, however, there has been a change of circumstances within section 47(7) then the door to the exercise of a judicial discretion or evaluation to permit the parents to defend the adoption proceedings is opened and the decision whether or not to grant leave is governed by section 1 of the 2002 Act. In other words the paramount consideration of the court must be the child's welfare throughout his life.
9. What amounts to a change of circumstances within section 47(7)? Clearly there can be no definition and each case will turn on its own facts. Lord Justice Wall, in the case of Re P, cited with approval in Re B-S, said this:

"We do, however, take the view that the test should not be set too high because, as this case demonstrates, parents in the position of S's 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. We therefore take the view that whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application."

10. In terms of how I recognise a relevant change in circumstances it was expressed thus by Lord Justice Wall:

"The change in circumstances since a placement order was made must… be of a nature and degree sufficient on the facts of the particular case to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings."

11. If I decide that there has been no sufficient change in circumstances then that is the end of the application for leave to oppose. If, on the other hand, I decide that there has been a sufficient change in circumstances then I go on to the second question which is whether leave to oppose should be given. Section 1 of the 2002 Act sets out the welfare checklist. I need to put that in a context and consider all the circumstances of the case. I need to consider two inter-related questions: firstly the parents' ultimate prospects of success if given leave to oppose and the second, the impact on the child if the parent is or is not given leave to oppose, always remembering that at this stage the child's welfare is paramount.
12. The Court of Appeal then set out in Re B-S ten points that I have to consider. It is useful to remind myself by reading those into this judgment:

(i) Prospects of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parents' care.

(ii) For purposes of exposition and analysis we treat as two separate issues the question of whether there has been a change of circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined. In many cases the one may very well follow the other.

(iii) Once he or she has to the point of concluding that there has been a change of circumstances and that the parents have solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is "last resort" and only permissible if "nothing else will do" and that, as Lord Neuberger emphasised, 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. That said, the child's welfare is paramount.

(iv) At this stage, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and the positives, all the pros and cons of each of the two options, that is either giving or refusing the parents' leave to oppose. Here again, as elsewhere, the use of Lord Justice Thorpe's balance sheet is to be encouraged.

(v) This close focus on the circumstances requires that the court has proper evidence but this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions.

(vi) As a general proposition the greater the change in circumstances (assuming of course that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be if leave to oppose is to be refused.

(vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed, the greater the adverse impact of disturbing the arrangements are likely to be.

(viii) The just must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life." Given modern expectation of life this means that, with a very young child, one is looking far ahead to a very distant future, upwards of 80 or even 90 years. Against this perspective judges must be careful not to attach undue weight to the short-term consequences for the child if leave to oppose is given. In this, as in other contexts, judges should be guided by what Sir Thomas Bingham, Master of the Roll, said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that:

"The court should take a medium term and long-term view of the child's development and not accord excessive weight to what appears likely to be the short-term or transient problems."

That was said in the context of contact but it has a much wider resonance.

(ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may, in some cases, have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. The judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after that leave hearing.

(x) We urge judges always to bear in mind the wise and humane words of Lord Justice Wall in Re P, paragraph 32. We have already quoted them but they bear repetition:

"The test should not be set 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."

13. The additional lesson that was to be learnt from W and H was that if leave is not given then the making of the adoption order should be at the very least postponed until the birth parents have had time within which to lodge any appeal should they be minded to do so. H and W also reiterated the importance of the evaluative process to be carried out by the judge in what are recognised to be sensitive and difficult cases.
14. I have the advantage of having dealt with S-S's case from the very instigation of care proceedings by the Local Authority. I case-managed those proceedings and I presided over the final hearing when I made a final care order approving a plan for an adoptive placement and I made a placement order allowing S-S to be placed for adoption. I am not going to read into this judgment everything that arose in those earlier proceedings but it is right that I set a little of the history.
15. S-S's parents have been in relationship together since about 2003 when J left school. In December 2005 the police were involved when J reported being assaulted by E but she refused to make a complaint. Following S-S's birth, not only were the parents arguing, as they have both told me today, but J reported a number of significant domestic violence episodes which she accepted at the time were impacting on S-S and her ability to care for S-S. The home that the family occupied was in an appalling state. It was totally unfit for any child to be living there. Neither parent seemed capable of doing anything about that. S-S was not fed properly and she was not cared for properly. The case for the making of a care order was, I have to say, overwhelming. Given S-S's age at the time the care proceedings concluded in 2012, plainly the question of her adoption was a matter that needed to be weighed in the balance as a potential outcome. Having heard the evidence I concluded that there was no alternative realistic long-term plan that would meet her needs for the rest of her lifetime.
16. During the time that S-S was with her parents a great deal of support was provided in order to improve both the domestic circumstances and the care being given to S-S but that did not happen. An interim care order was made on 28^th November 2011 when initially she was subject to a home placement agreement. In February 2012 J reported the domestic violence which resulted in her leaving the family home on 6^th February 2012 to live in a refuge. Again at that stage a great deal of support was provided for S-S and her mother and there was evidence that J was developing her ability to care for S-S. Unhappily it came to the attention of the Local Authority that J, assisted by her mother, was allowing E to have contact with S-S outside the terms of an agreement with the Local Authority and that was deemed to be placing S-S at risk of harm.
17. On 17^th May 2012, following a hearing, S-S was placed in the care of Local Authority foster carers. On 5^th September 2012 S-S was presented to the Adoption and Permanence Panel who recommended that she be placed for adoption and that a placement order should be applied for. That decision was ratified by the agency decision maker and it was on 15^th October 2012 that I made the care and placement orders.
18. In December 2013 prospective adopters were identified. S-S had her final contact with her birth parents in December 2013. They have complained to me that the care plan that I approved for their continuing contact with S-S was not followed and I note that the previous contact, ahead of the final contact, had taken place six months earlier. It was in May 2014 that the adoption panel linked S-S to the prospective adopters, that decision being ratified by the agency decision maker, and following a bridging period S-S was placed with the prospective adopters on 5^th June 2014 so she has been in placement with them now for a little over a year. She is now approaching her fifth birthday in October. She will be due to start school in September and she is of an age where she will be starting to have some appreciation of her circumstances and her history.
19. What were the parents able to tell me about their change in circumstances? J told me that she has been doing a full-time course to get her English up to scratch and to help her with reading and writing. She told me about a parenting class that she has done which was a 28 week course from which, in particular, she learnt about a child's dietary needs and about some of the medical issues that might arise with care of a child, such as a child getting a burn. I asked her to tell me, with the knowledge she now had, what, with the benefit of hindsight, she might have done differently with S-S. In other words what were the things that were going on in her care of S-S that were not good for S-S and that she now recognises should have been done differently. She identified that the arguing between her and E was no good for S-S and she accepts that she was feeding S-S all the wrong stuff, feeding her fried and junk food. She told me that for the future all S-S needs is some love; she would get that from her mum, her grandparents and her dad. She said she now recognises how much she had missed S-S and she just wants her back.
20. E told me that he has been at university since 2012, having done a social science foundation year, and has now moved on to a degree course. He has struggled with his choice of subjects this last academic year and is returning next year to the University of Central Lancashire to start a different course, one he feels better suited to his aspirations for the future. He tells me that he has been working with the UCLAN students' union, helping sort out other students with such things as their finances, where he has some personal experience of the difficulties in actually accessing the money that he was entitled, and so helps others having similar problems. He has not done any courses directly related to childcare. He had done such a course prior to the conclusion of S-S's care proceedings and he had been on a domestic violence course prior to the conclusion of her care proceedings. He acknowledges that the house that he and J, together with S-S, occupied was unfit for habitation. He blames the landlord. He tells me that he has learnt lessons and has had time for reflection. He told me that the arguing should not have happened and should never have happened in front of S-S.
21. I asked him to explain to me, help me, with examples of things that he would do differently now with the benefit of his time for reflection and the lessons he had learnt, if he had his time over again with S-S as a baby. He looked back at me completely blank and was unable to give me any examples. He told me that he had some cooking skills now so that he had been able to provide a meal for S-S in contact which she had enjoyed. He had provided a written statement to the court in March of 2015. I have read that document.
22. Therefore has there been a change of circumstance and, if there has, what is needed by way of that change of circumstances to be sufficient to get over the first hurdle in the test? As far as E is concerned he has commenced a course of education. Given the history of this case what I was looking for in him was some insight into where things went wrong with S-S and how things might be different in the future. I have a very clear recollection of E from the time of the care proceedings. I have seen nothing in him that suggests he has changed or there has been any change at all. It was obvious in the care proceedings that he had no insight into the needs of the child; that he had no emotional intelligence to understand what a child might be feeling or how a child might react when he behaved as he did. I have had no sense from anything he has told me today that he has developed any insight or that he would do things any differently if S-S were in his care again as a young child or as she is now approaching her fifth birthday.
23. J in the past has shown signs that she could learn and develop. That was evident when she was in the hostel at a time when she was getting a lot of support. It is clear that she has learnt something from the courses she has been on but I am afraid to say my assessment today is that that learning is, at best, superficial. It is right to acknowledge that she volunteered that the arguing that S-S had been subjected to will have done S-S no good. However, in order to demonstrate a change relevant to the history of S-S's case I would really need to see something much more profound to be able to assess there having been a change.
24. I am very conscious of the need not to set the bar too high so that parents are discouraged from bettering themselves. Each case is fact specific and in this case the change that is needed must be something to suggest that the failings of the past would not be repeated. Nothing I have heard from either parent gets even close. Until there is a proper appreciation by these parents of how and why things went so badly wrong for their daughter I see no scope for saying there has been a change of circumstances that could properly lead the court to open the door to giving leave to oppose the adoption.
25. Therefore in my judgment the application for leave falls at the first hurdle. However, if I am wrong about that I ought to go on to consider the second phase, whether, if there were a change of circumstance, it would be right to grant leave to oppose the making of the adoption order, applying the welfare test, making S-S's best interests my paramount consideration. Had the parents surmounted the first hurdle I would have adjourned the case and called for more evidence. This assessment is therefore based on the material I have.
26. I remind myself of the welfare checklist in section 1 of the Adoption and Children Act 2002. It is sufficiently familiar for me not to need to read it into this judgment. I bear in mind, consistent with the application of the paramountcy test, that an order for adoption is an interference with the right to family life of both S-S with her parents and her parents with S-S and that I have to consider the proportionality of the interference with that right in considering what is best for S-S. The interference by the state in this instance could not be more profound. It would only be right if there were no realistic alternative. I remind myself that the test here is not the question of whether the parents have established they have a prospect of ultimately having S-S restored to their care but whether they have the prospect of resisting the making of an adoption order.
27. What then do I know about S-S's circumstances? As I have indicated she is approaching her fifth birthday. The information I have from the Annex A report tells me that she has made enormous progress in her current placement. She has moved from a child with significant needs when first admitted into the care of the Local Authority, to a child now who is able to enjoy a warm, loving and nurturing life with her adoptive parents. No doubt because of the foods J was feeding her, she was very significantly overweight. That is no longer the case. Her need for food expressed itself when she was found, for example, searching through rubbish bins, indicating to those who were caring for her that she had perhaps struggled to understand and have confidence that she would be fed appropriately at appropriate times in her infancy. All of that now is behind her. She is a little girl who is thriving.
28. There are not in reality, and were not at the time the placement order was made, any realistic alternatives to adoption. That position has not changed. What she has lost, and that loss will continue, is a relationship with her birth parents and her wider birth family. That is a loss that I must weigh in the balance sheet. I hope that if an adoption order is made both her parents will provide information about themselves and about their time with S-S when she will be too young for her to remember through the letterbox scheme and through some life story work. E told me that he would. I hope J will do the same.
29. I must look at S-S's life, not just now, not just at a potential period of disruption in the immediate future, but in the medium to longer term. The Act requires me to consider her welfare throughout her life. I do not have a crystal ball but all the information I have been provided with about her adoptive placement indicates that there need be no concerns about the care that she will receive on the basis of what she has been receiving to-date and the relationships that have developed in the last year or so.
30. If I were to get to the second stage of the test for giving leave, applying a welfare test and putting S-S's best interests as my paramount consideration, my evaluation of the information I have is that I would not be persuaded to grant leave. Therefore, for all of those reasons I refuse the application for leave to oppose the adoption by both E and J.
31. E and J asked for my permission to appeal my decision. I refused that permission for the following reasons:

a. I considered that I had carried out an appropriate exercise of evaluation in the particular circumstances of this case;

b. I had applied the well established law;

c. I had reached a decision based on the facts of this case;

d. My evaluation was based on the correct principles;

e. I could see no prospect of success in any appeal process.

I gave them advice as to the time available to make any application to the Court of Appeal

(End of judgment)