England and Wales Family Court Decisions (other Judges)

IN THE CENTRAL FAMILY COURT
IN THE MATTER OF THE CHILDREN ACT 1989
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF S (A CHILD)

		1 July 2016

1. Introduction. S is a boy now aged 9. I have to determine (i) whether he should spend time with his father; and, (ii) whether he should be adopted by his step-father. These are the applications before me. In deference to the importance of the issues to the family, and because the case has twice been heard in the Court of Appeal, this is a reserved judgment.
2. Background. S is of Asian racial origin, although he is a British national and has lived all his life in England. He was born to a mother and father whose relationship began in a clash of cultures. His mother, born in England but of Asian racial origin and with family roots in Pakistan has also lived in England all her life. Her nuclear family seem to have adopted a Western culture and way of life. She was about to go to university when she was informed that the expectation of her wider paternal family was that she would travel to Pakistan, there to be married to S's father. As the mother describes it, and I accept her evidence on this point, her future fell to be decided by the matriarchal figure in the family, her grandmother. S's mother was the first-born daughter of her grandmother's first-born son. Therefore the grandmother determined who she should marry. She chose a cousin of the mother's – a "close relative" as the father describes it in his statement. I as a judge am not to be heard to say that arranged marriages do not work or necessarily offend against modern Western ideas of freedom of choice or informed consent. That this arranged marriage did not work, however, is plain. Moreover, the fact that it was arranged and that the mother had no choice is now her cause of complaint. The positions of father and mother differ as to whether the marriage was ever happy. I suspect that it was not.
3. S's mother travelled to Pakistan and was married. She returned to England. S's father in due course followed her to this country. He is Asian and was born in Pakistan. He lived with the mother in her parents' home for two and a half years before they moved into their own property. They separated shortly afterwards. The father has been attempting to obtain permanent leave to remain in the UK since his arrival.
4. The mother has returned to her westernised life-style. English is her first language. She trained, qualified and now practises as a social worker. She has re-married. S has a half-sister, now aged 4. The father can speak little English. Even now, almost a decade since his arrival in the UK, he has needed an interpreter throughout this hearing. His counsel, Mr Bartlet-Jones, attempted to demonstrate that he could converse in English using simple sentences. The attempt largely failed. He works in an Indian restaurant. The parties live 200 miles apart: the mother in the South of England; the father in the North.
5. The applicant for adoption is the mother's new husband, S's step-father. He is Asian and although born in Pakistan has lived in England from the age of 2. During this hearing he has led the way in suggesting that this clash of cultures is important. He suggests that the mother and he are "liberal" Muslims, whereas the father is not. The father, it is suggested, is against adoption on the grounds that the Quran forbids it. The mother and he could, he told me, tolerate homosexuality in their son, S, should it turn out that this is his sexual orientation (there is no suggestion that he is gay) whilst the father would not be able to come to terms with this. I accept the step-father's evidence as to his and the mother's philosophy, but not his views of the father.
6. The father's wider views have gone unexamined in any detail, but his motivation towards his son is simple: he wishes to spend time and have a father-son relationship with him. The expert in the case dismisses the idea that his sole motivation is to improve his immigration position and so do I. Establishing a relationship with his son is a project upon which he has now been engaged for years, often against the odds as this litigation has meandered through the courts. Of course I can accept a mixed motive in that a relationship with his son is likely to further his immigration ambitions, but I do not believe, having heard him, that this is the driving force.
7. This is the cultural background. The background to the child arrangements which have applied in the past is more prosaic. S lived with his father and his mother only for the first 11 months of his life. When they separated he remained with his mother. His father made strenuous attempts to spend time with him but they came to nought. The father's current application for a child arrangements order was issued as long ago as 2010. It is also possible to see the application by the step-father as a part of this battle over child arrangements. The step-father and the mother who of course supports him deny this, maintaining that S needs the security of adoption to further his welfare interests.
8. In terms of child arrangements, despite the long gap since S last spent time with his father, the case is not out of the ordinary by the standards of those in the Central Family Court. The application for adoption makes the case a little more complex. The truly unusual feature however is the forensic history which has seen the case twice having been the subject of successful appeals by the father. On 3 July 2015 the Court of Appeal set aside an adoption order and an order for no direct contact made by HHJ Oliver on 17 February 2015. A case management decision of my own to retain the flawed expert report criticised by the Court of Appeal in the first appeal was on 3 November 2015 also successfully appealed, leading to the complete excision of that report from the case papers before me.
9. At this hearing, the case has continued to present forensic difficulties. The newly-instructed expert has reached a very different view from the expert whose report has been excised from the bundle. The guardian for S has, however, reached a view diametrically opposed to the present expert. The independent expert is against adoption and is for the father spending time with S. The guardian is for adoption and against the father spending time with S.
10. As the evidence has emerged I have reached a clear view against adoption and in favour of the father spending time with S. Given the forensic difficulties and in particular my rejection of the recommendation of S's guardian it is necessary that I set out my reasoning carefully. I must also record, however, that this judgment, as so many within family law but more than most, is not just a fixing of past history and the provision of a remedy, but is itself a factor in a moving and developing pattern of events – family life - capable of influencing for good or ill the actions of individuals in future.
11. My reasoning is heavily influenced by the evidence given by the mother during the case, in particular by her generous offers of mediation, of the suggestion of a family meal at the father's restaurant and by her concession that if S were to be adopted by the step-father then direct contact was something which she would support ("I would be willing for adoption and direct contact.").
12. It is possible against the past history of this case to take a cynical view. Having heard her, I prefer to accept her evidence at face value, and to seize the moment. It follows that to dwell on past events is unhelpful. To criticise anyone beyond that which is absolutely necessary is unhelpful. During the trial at several points the parties speculated as to what S himself might make of what had occurred in his family. I have found it helpful when constructing this judgment to bear in mind that he may read it one day, perhaps one day soon. If so, then I hope he will take the positives from it. He is fortunate, when compared with many children in the cases I deal with, to have 3 parental figures who love him and, in their different ways, want the best for him. There is probably little to be gained for S or anyone else in dwelling on the past. The reflection should perhaps be that we are all the victim or beneficiary of circumstance and human frailty. It is better to concentrate on the future.
13. In reaching my conclusion I have had the benefit of hearing evidence over 2 days from the father, the mother, the step-father, the expert and the guardian. The father has been represented by counsel. So too has the local authority which has statutory responsibilities under the Adoption and Children Act 2002 ("ACA02"); and the guardian The mother and step-father have appeared in person. I remind myself that where one party is legally represented and the other is not, I almost invariably see and hear the litigants in person in a way which is unfiltered. I see the rough edges. I see the characters play out in the role of advocates in a different way from that in which they are seen when sheltered by a legal team. I commend the mother and step-father for the restrained, even generous, way in which they have represented themselves. I nevertheless remind myself that their case will have rough edges which I would not have seen had they been represented and, as a quite separate point, that I will have seen rough edges to their personality which representation might have smoothed out.
14. The Law. Whilst I must look at the case in the round and reach the best outcome for S in terms of his welfare, applying 2 welfare checklists (under s1 of the Children Act 1989 ("CA89") on the question of time with father; and under s1 of the ACA02 on the question of adoption) it is helpful to begin with the question of S's time with his father. Here, the starting point is that a child is entitled to know and have a relationship with both his parents. It is only in exceptional circumstances that this should not occur and only in truly exceptional circumstances that the powers of the court should not be used to promote the child's right to a relationship with both parents. Children are better off knowing both parents. The parties have reminded me in written arguments of the legal authorities which apply in this area. I do not find it necessary to set them out here.
15. As for adoption, the application was issued on 11 July 2014. It was in the name of the step-father alone, and thus if an adoption order were to be made, S would become, under section 67(2) ACA02, the child of the mother and step-father. He would cease, in law, to be the father's child. The father has parental responsibility and it would be his parental responsibility alone which would be extinguished by an adoption order (section 46(3)(b) ACA02). Parental responsibility would be created in the step-father (section 46(1)ACA02).
16. As the birth father has parental responsibility for S, in present circumstances no adoption order could be made without his consent unless "the welfare of the child requires consent to be dispensed with" (sections 47(2) and 52(1)(b) ACA02). S's father does not consent. Before making an adoption order I must consider whether there should be arrangements for allowing any person, including of course the father, contact with the child (section 46(6) ACA02).
17. For the State in the form of the Court to make an order providing for the child's adoption by a third person is a significant interference in the right to respect for private and family life under Article 8 of the European Convention on Human Rights – of the parent who, in law as a result of the order ceases to be the parent of the child and of the child himself. Accordingly, any adoption order must be both necessary and proportionate. The two legal requirements, domestic and European, are different ways of saying the same thing.
18. I remind myself, however, that the proposed adoption is not an adoption 'by' the State, using the mechanism of adoption by a stranger or strangers to the child as a social welfare tool to provide for the State-sponsored future of a child severed from his natural family for child protection reasons. This is adoption by a step-parent, within the child's family, by someone who the child already regards as a parent, in this case a father figure. McFarlane LJ has explained the difference between the two concepts in Re P 2014 EWCA Civ 1174 at [46]-[50]:

46. In an adoption application the key to the approach both to evaluating the needs of a child's welfare throughout his or her life and to dispensing with parental consent is proportionality. The strong statements made by the Justices of the Supreme Court in Re B and taken up by judges of the Court of Appeal in subsequent decisions to the effect that adoption will be justified only where 'nothing else will do' are made in the context of an adoption being imposed upon a family against the wishes of the child's parents and where the adoption will totally remove the child from any future contact with, or legal relationship with, any of his natural relatives. Although the statutory provisions applicable to such an adoption (in particular ACA 2002, s 1 regarding welfare and s 52 regarding consent) apply in precisely the same terms to a step-parent adoption, the manner in which those provisions fall to be applied may differ and will depend upon the facts of each case and the judicial assessment of proportionality.

47. By way of example, in a child protection case where it is clear that rehabilitation to the parents is not compatible with their child's welfare, the court may be faced with a choice between adoption by total strangers selected by the local authority acting as an adoption agency or adoption by other family members. There is a qualitative difference between these two options in terms of the degree to which the outcome will interfere with the ECHR, Art 8 rights to family life of the child and his parents; adoption by strangers being at the extreme end of the spectrum of interference and adoption by a family member being at a less extreme point on the scale. The former option is only justified when 'nothing else will do', whereas the latter option, which involves a lower degree of interference, may be more readily justified.

48. Where an adoption application is made by a step-parent, the approach of the ECtHR in Söderbäck v Sweden should be applied according to the facts of each case. In doing so the following central points from the judgment in Söderbäck are likely to be important:

a) There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;

b) Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent ['Parent B'], and thereby make it more likely that adoption is a proportionate measure are:

i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;

ii) Where Parent B has had only infrequent or no contact with the child;

iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which 'de facto' family ties have existed for a significant period.

49. In so far as the earlier domestic cases to which I have made reference establish that, in the event of Parent B being actively opposed to a step-parent adoption, practical arrangements should be dealt with by private law orders, that approach is entirely at one with the modern private law relating to children which seeks to determine aspects of the delivery of child-care and the discharge of parental responsibility either by parental agreement or by a child arrangements order under CA 1989, s 8.

50. The making of an adoption order is primarily, if not entirely, concerned with the legal status of the relationships between the child, his natural parent(s) and the adopter(s), rather than practical arrangements. Thorpe LJ's words in Re PJ adhering to the aptness of earlier cautionary dicta, and reminding professionals of the need to be aware of the motives, emotions and possible unrealistic assumptions about any new family unit, remain as wise and sound as they were when uttered in 1998. In this manner, the approach of the domestic case law sits easily alongside that of the ECtHR in Söderbäck v Sweden.

19. Findings. What then is best for S's welfare? To answer this question I first make some limited findings about the past. When this case was first before the Court of Appeal there was concern that an adoption order had been made without sufficient investigation into past events. The unanswered questions can be and were distilled from the judgment of the Court of Appeal. They can be found in full at pA115 of the trial bundle, but in essence the questions were: (i) why did contact between the father and S come to an end; (ii) when the father brought proceedings in an attempt to resume contact did the mother know of those proceedings; (iii) why did the mother change S's surname; and, overall, (iv) was this a case where the mother had attempted to alienate the father from S?
20. In parenthesis, I should add that the investigation of the past and the criticisms of the mother were but lightly advanced by Mr Bartlet-Jones for the father during the evidence. At the start of the trial he emphasised that the future was more important and that 'fact finding' might not have to take place at all. He was, in my judgment, alive to the subtleties of the case and to the law of diminishing returns often in play in these circumstances, as it is in this judgment. So too was the father when he gave evidence. He did not seek to blame the mother for his lost years with S. He thanked the mother for raising S. He accepted that "work and patience" would be needed in future.
21. Indeed, it was largely my own concern as to the outcome of the first appeal and the setting aside of HHJ Oliver's order on the basis that the past had gone insufficiently investigated, which prompted any detailed enquiry. Mr Bartlet-Jones then advanced the issues more stridently in his closing submissions. I would, however, like to dissipate any impression that the hearing itself was hostile. It was not. It was, in my view, largely co-operative. It is with some regret that I have felt obliged to go into the past, but it is necessary to an understanding of the case and my orders.
22. The mother and father married in 2004. They lived together in England between 2005 and 2008, parting when S, born in 2007, was 11 months old. In leaving, the mother made an allegation that the father had sexually abused S and herself. The allegation in respect of S was of a minor kind. The allegation in respect of her was of non-consensual sexual intercourse - rape. She also made limited allegations of physical abuse of herself.
23. The father nevertheless immediately began his attempts to see S by consulting solicitors who wrote to the mother. She failed to reply. The police investigation into the allegation of abuse against S rapidly ended with no further action. The allegation of abuse against the mother took more than a year before it too closed with no action against the father. These allegations are not now pursued. It is clear that the father did not abuse S. The circumstances in which the allegations came to be made are illuminating. A series of records within the trial bundle relate the history. The mother, then training to be a social worker, was in a professional context in touch with an agency concerned with victims of domestic violence. The mother enquired of them as to her own position, describing difficulties in her relationship with the father. The agency reported the matter – the concern was that a trainee social worker was not able to protect herself or her child - and a professional investigation of the mother followed. The records show the developing story albeit not with total clarity. Allegations were initially made, then embellished or confused in the telling and when passed between agencies. The mother then provided clarity on some matters, but not on others. My conclusion is that the mother did not initiate the idea that S had been abused. She did however, take advantage of the developing idea that he may have been. She allowed the agencies to run with the idea – but only up to a point before clarifying the position and effectively ending the investigation (by then in the hands of the police) of abuse against S. The investigation was also the catalyst for the mother leaving the father. I suspect the mother gained the strength to leave the relationship, directly or indirectly, from the professional involvement in her life. In terms of the allegations, against the background of an arranged marriage and culture clash, where she wanted to start afresh after a disastrous chapter, she was prepared to go so far, but no further. I believe this gives an insight into the mother and her mindset.
24. Much the same point can be made in respect of the next aspect of the past which has involved criticism of the mother. It is said that she at the very least buried her head in the sand when it came to playing a part in the court proceedings begun by the father. Her version of events is that she had no knowledge of the proceedings at the relevant time. The history is that following the gap in contact caused by the allegations and the police investigation, the father resumed his quest to see his son. The mother agreed. Contact was arranged for 10 October 2009. The mother did not attend, claiming, then and now, to have mistaken the address of the contact centre. A new date was arranged a month later, 7 November 2009. That occasion was cancelled by the mother through her solicitors. The father then travelled to Pakistan where his father was ill. On his return his solicitors wrote to the mother's solicitors requesting time with S. The mother claims she was not told of the request, her solicitors being no longer instructed. In the absence of a reply, the father's solicitors issued the application with which I am now concerned on 12 February 2010 (more than 5 years ago). The proceedings were served by post addressed to the mother at what she accepts was then her home. The last two letters of the postcode were transposed in error. The proceedings were also served on her solicitors. The mother claims not to have received notice of the proceedings. The father's case is that she is not telling the truth. The letter could not have been delayed in the post by more than a few days. The mother's solicitors, or former solicitors as she maintains, would have done something. If they were not acting they would nevertheless have forwarded the proceedings to the mother. If they had not done so, or believed that mother might not be aware of them, then they would have informed the father's solicitors. In any event, the father argues, it was within the gift of the mother to have cleared all this up by way of a short statement or letter from her solicitors, or by producing the relevant documents from their file. She has not done so.
25. The matter goes further. The father had to obtain an order from the court directed to the Department of Work and Pensions in order to trace the mother. This was difficult as she had changed her name to that of her new partner (who was shortly to become her husband). When the proceedings were served on what was by now the mother's new address, the mother failed to attend the hearing fixed by the court on 19 July 2010.
26. The father's solicitors continued to be instructed but it is his case that there were then delays in the court process. The court dealing with the matter – which was not the Central Family Court – did not offer a further hearing date. His solicitors continued to chase for 9 months. In May 2011 the father again travelled to Pakistan where his father was to die later in the year. He resumed the English court proceedings and his attempts to see his son on 15 March 2012 when he instructed the solicitors presently representing him. They received the papers in August 2012 and persuaded the court to list the matter. The notice of hearing sent to the mother was returned undelivered. I believe this was the first occasion on which a document had been so returned. On 23 November 2012 a hearing took place before DJ Sturdy. In support of his contention that the delays were not his fault or any indication of his lack of desire to see his son, the father maintains that the judge was so struck by the delays within the court process that she had the court manager attend the hearing in order to explain. A further order was directed to the DWP in order to trace the mother. On 27 February 2013 process servers managed to serve the mother and on 5 March 2013 she attended a hearing. That hearing marks the start of the present round of litigation.
27. My finding is that the mother must indeed have at least buried her head in the sand concerning the proceedings between 2010 and 2013. She denies knowledge of the proceedings but in my judgment she must have known. She knew that the father wanted to see S, was trying to see S and she was preventing that. Her husband when he gave evidence did his best not to aggravate the situation. He accepted that "mistakes had been made". He referred to mistakes on both sides, but in context he was referring in particular to this period and this history. He lived through it. He claimed not to remember the details, but it was clear to me that he was doing his best to tread a difficult path. It would be easy to be condemnatory in respect of this history, but, as will be seen, I prefer to accentuate the positives in this case.
28. The next relevant factor, is that at an early stage in the history, in fact on 17 March 2010, the mother had executed a deed poll "renouncing, relinquishing and abandoning" the use of S's former surname and declaring that from then on he would be known by the surname of her new partner. The deed has not been registered. There was no enquiry during the trial, and no evidence, as to whether and to what extent the authorities would have required information concerning the father's position on the name change. The mother claims to have attempted to inform the father of her intentions, but not to have been able to contact him. I am afraid that, as she knew he had solicitors at or around this time and she could have contacted them, that this is not correct.
29. Discussion: Time with the Father. In many cases the combination of (i) false allegations of abuse, perhaps especially sexual abuse; (ii) disengagement from court proceedings; (iii) a change of name without notice to the other parent; and (iv) a long gap without the other parent seeing the child would be strong indicators of hostility to contact which would point a case a long way towards the intractable end of the scale. Add to that an application to adopt and the fact that the mother is also a qualified social worker who should know better and there is a perfect storm of intractable hostility, of alienation.
30. I do not see the case this way. It would be easy to criticise the mother, and I have criticised her. Her present husband is right to say mistakes were made by her. And yet. First, there are the circumstances in which the false allegations came to be made. The mother took opportunist advantage and has pressed the allegations to a point, but it is a point a considerable distance from that seen in many cases. Secondly, she has now engaged consistently with these proceedings. Above all, she has been conciliatory in tone and more importantly content in her evidence. If I look at the application to adopt (and of course it must receive separate consideration) it is significant in terms of their attitude (although not to the test I apply on the application itself) that, whilst professing to feel strongly about it, the step-father, with the mother's backing, was prepared to withdraw the application in the weeks leading up to this trial. The expert evidence had, at that point, it is true, moved against them; but I also noted open indications from the couple at the earliest stages of my involvement in the case that they were considering their position. They openly professed to an appreciation, as they saw it from their own researches, that such applications were rarely allowed if contested (this is their idea, not mine). In fact, some days before this hearing, a decision to apply to withdraw had been communicated openly to the father's solicitors and to me by email. I declined to act on it, but indicated that I would take the parties' positions at the start of the hearing. It was only when the guardian indicated his support for adoption that a final decision was made by the applicant step-father (and the mother) to press the application to adopt.
31. These are not the hallmarks of intractable hostility. Nor do I see the mother's status as a social worker as a negative. She is trained, qualified and she practises. In my judgment, she knows it would be wrong to cut S off from his father. It would be very damning of her, and potentially damaging to her career and professional circumstances if I were to find that she was unreasonably and intractably hostile to contact for her child with his father. This case has already demonstrated the microscope which, for good or ill, is applied to the personal lives and attitudes of social workers in the modern era. I do not believe she would cut S off from his father, especially not in the face of a court order to the contrary. I accept her evidence that she would obey an order. I accept her offer to promote the relationship between S and his father. I find that her husband is a decent man, wanting the best for S and willing to look at things in the round and be reasonable. I think he would support and help the mother – and S – to promote contact. I do not believe he would disobey a court order. I acknowledge I may be wrong in these conclusions, but I hope not.
32. It is at this point that I turn to consider the evidence of the professionals. The expert ("the ISW") is an independent social worker of considerable experience.. She was appointed to write the "Annex A" report under section 44 ACA02 following the first ruling of the Court of Appeal. Although her primary responsibility was the question of adoption or not, she considered the question of S's time with his father in some detail. In her report dated 16 May 2016, she indicated that she had encountered "a reluctance to support direct contact" on the part of the mother and step-father and, consequently, "it is not surprising that S is reluctant to have direct contact as his views could be influenced by them." She continued: "he needs to be given a positive image of his father as this will have implications for his own self-esteem and confidence as he grows up." I respectfully agree with these observations. They are limited. Which professional working in this field could not agree with them as stated? I suspect the mother at heart agrees with them. It is true that during her oral evidence the ISW emphasised the hostility which she believed she had encountered during her investigations: "the environment is quietly hostile to the birth father" and "there is a quiet hostility permeating the mother and step-father's approach." She was "worried that a court order may be undermined." Her recommendation was as follows: "I am recommending direct contact for S and his father. The frequency, venue and supervision would best be left to negotiations between the parents as contact arrangements work best where there is a high degree of collaboration between the adults responsible for the child. I appreciate to achieve this will very likely require a mediation service in view of the reluctance of the mother step-father to support direct contact until S is a teenager. S will need professional help to prepare him for meeting his father in view of the fact he has not seen him since he was a baby."
33. S's guardian, again a qualified social worker of great experience, albeit with significantly less experience of the family, was of a different view. He accepted that his analysis, dated 3 June 2016, was based, beyond the papers, only on telephone calls with the family members and one meeting with S. I risk the observation that this limited contact with the family members is an indication of the stretch of resources within Cafcass at present, and not a criticism of the guardian. His analysis emphasises S's views: "S has said consistently to his parents and professionals that he does not want to see [his father]. S is an intelligent and articulate child who is clear about what he wants. His views have been consistent over time. In my opinion the Court should give S's views significant weight." Mr Bruton emphasised the damage and distress which might occur to S if he was "forced to do something against his will or judgement if the child cannot see the sense of it." He was settled at present and felt that his father was a threat to his position in the household and relationship with his step-father. During his oral evidence he said: "he is in a good place at the moment, but there are tensions underneath."
34. I profoundly respect the guardian's views, but my difficulty with them is that they do not seem to me to sit easily with the stated position of the mother during her oral evidence. She introduced the idea of direct contact alongside an adoption order. She did so whilst being asked questions by her husband, the step-father. It was a new idea, but clearly one they had thought about before the hearing. I established that the idea was for an order for direct contact alongside an adoption order made at this hearing. At later points in her evidence she hedged the idea about with requirements for counselling and the thought that perhaps it should occur when S was older, but the impression I was left with was that, if there was an adoption, then there would also be direct contact. That was the impression she intended me to have when she first mentioned the idea. It was at this point in particular that her status as a litigant in person has to be recalled. Nevertheless, I formed the view that she had thought about what she was saying carefully. Perhaps the idea would not have surfaced had she been represented, but it was not said by mistake. If the guardian's concerns are to be taken at face value – the idea of damage and distress to S – then I do not understand how this offer could be made.
35. In my judgment, the reality is that the ISW has the better of the argument: S's views are influenced by his mother and step-father. I do not say deliberately, but he picks up on the 'vibe' (for want of a better expression) in the household. I go further, I think it is likely that S's opposition to seeing his father should be viewed rather like his mother's opposition: it is pressed to a certain point, but is not to be seen as solidified or incapable of change, as 'intractable'. If it were then I do not think the mother would have said what she did to me. Her offer of a family meal at the restaurant where the father works was made particularly openly. Geography (the restaurant is approximately 200 miles from S's home) tends against such a meeting, but the principle is, in my judgment, sound. Nothing could be better for S than to see his mother, step-father and father co-operating in securing for him a relationship, even if limited, with his father. I emphasise again that the mother is a social worker: she must see this. She emphasised to me that she had in the past been "very positive" about S's relationship with his father: "you can't take the position 'I'm right, you're wrong'". In my judgment she can and should be positive again.
36. Leaving aside for one moment the question of adoption – and I realise that a holistic examination of the outcome to the case is required here – I reach the conclusion that there is nothing in the evidence before me which, on an application of the welfare principle and checklist, would justify cutting off S from his father, of depriving him of his entitlement to know and have the love and society of both his parents. It would be a rare case which supported the idea that a child should not see his father. The factor which above all might be said to be in favour of no contact is S's wishes and feelings. These, however, I find are influenced by his mother and step-father and could be influenced positively if they chose. If there is short-term difficulty for S, it is balanced by the long-term benefits.
37. The mother and step-father have emphasised their ability to keep alive the idea of S's father in his mind through his life story book and through indirect contact in future. That, however, is no substitute for time spent with a parent. Moreover, this is a case in which the mother and step-father are going to have to make an effort and effect change in their own approach if the father is to be presented positively. I do not think that the essentially limited nature of an order for only indirect contact would help them in this. It would be too easy to let things wither on the vine, allowing little to become nothing.
38. Although the guardian told me that he thought "domestic violence is still a live issue", that is not the case and S would come to no physical harm in seeing his father. Any idea of domestic violence is removed from the case because findings in respect of it are not sought and because on analysis, could not be made on the present evidence if they were. The guardian also emphasised that "the father represents a threat to S's sense of security." This I understand and on one level I accept this evidence. I also judge, however, that the threat is heavily dependent upon the attitude of the mother and step-father in future. If I picture a positive position being presented to S – for example that from now on his step-father is, in law, his parent (I will be making an order granting him parental responsibility); and that he and his mother and step-father are all to have a meal with his father because it is time to move on- then I do not see S's security as being compromised. The ability to make S feel secure in seeing his father lies in his mother and step-father's gift and they are more than capable of providing it. Whether they do so is, I recognise, a different question, but I see no reason to hold (in their favour in terms of outcome, but against their evidence and justice) that they will not.
39. Discussion: Adoption. I now turn to adoption. At a further hearing on 6 August 2013 the mother informed the court that her husband wished to adopt S. The application to adopt is dated 11 July 2014. Is adoption by his step-father in S's interests to the point that it is "required"? If it is, how does this impact upon my reasoning thus far in terms of S's need to spend time with his father?
40. I have already rehearsed the observations of the Court of Appeal in Re: P and I adopt the 'proportionality' approach. An adoption order could only be made if it is required in S's welfare interests. Nevertheless, so the argument runs, in this case S would continue to live with his mother in the same family unit which has formed his home since he was very young. He would cease in law to have his present father – but this is someone who he has not seen since he was 11 months old and whom he maintains he does not wish to see. On his mother and step-father's case, the image of his former father would be kept alive in his mind and he would be free to seek him out not just when he was an adult but at any time. Further, it is their case that they would promote direct contact between S and his father. Moreover, it is implicit in their case that they might not be as willing to do so if S was not adopted by his step-father. Adoption would meet S's needs: he needs (and wishes) to feel secure. On analysis, this is said to involve his not wanting to feel different from his sister. On adoption she would become in law his full sibling – they would share the same parents which they do not at present. The facts of Soderback v Sweden [1999] 1 FLR 250 are in many ways similar to this case.
41. The step-father gains support in this argument from the views of the guardian. The guardian's support for adoption is implicit in his report, but was made explicit by Mr Dove, his counsel, when the guardian learned that the step-father intended to pursue his application. The guardian's views differed from those of the ISW. The guardian said: "In my opinion the report [of the ISW] places too much focus on the child arrangements and insufficient analysis on the issue of adoption. It has not considered the benefits for S, legally and psychologically, of having [the step-father] as his adopted father, particularly given that [the step-father] has taken on the role as father since 2010 during which time [the father] has not exercised his parental responsibility and has not seen S. Adoption would also mean that S becomes full sibling to [his half-sister] and he struggles with any suggestion that [she] is anything other than a full sister." In his oral evidence he told me that he did not think "an adoption order would stop S seeing his father in future."
42. As for the step-father himself, he told me that he continued to feel strongly about adoption ("I believe in the best interests of S. He needs me as a father figure.") although he acknowledged he had decided not to proceed with his application in the weeks leading up to trial. Now he felt that "S needs to know I tried". He confirmed his wife's statement that direct contact would be on offer to the father if there was an adoption order. The offer was conditional on the adoption because "the father needs to show some empathy".
43. I am afraid I do not agree with the core of the step-father's case which is that adoption (i) is sought in order to and will relieve S's feelings of insecurity and 'otherness'; and, (ii) will promote rather than damage S's relationship with his father. The first point is that S is 'different' in the sense that he has a different genetic origin. That does not mean that he need be insecure. I do not judge that he is insecure in terms of his placement. In this case, if and to the extent that S feels insecure or different, then the reasons for that are likely to lie in the approach which the mother and step-father have shown over the years and the failure to present S's 'difference' positively. Of course 'we are where we are', but in my judgment that approach can and is likely to change. The best outcome for S would be for the mother and step-father now to promote contact and the relationship with the father. In my judgment this would be likely to remove any insecurity. Indeed, I believe it would be likely to be far more effective than adoption in doing so. I see no reason why in this case I or anyone else should settle for an outcome which is (i) less than the optimum for the child; and. (ii) is based on avoidable failings on the part of his parental figures.
44. As to the promotion of S's relationship with his father, I do not see how adoption serves this end. Rather, in my judgment, it is likely to damage it. An adoption order is likely to create a culture in which no promotion of the relationship occurs. Where the law leads in removing the legal relationship, the reality in terms of the actual relationship would follow. It may well be that the mother and step-father do not intend this outcome, but again the history of the case indicates that a path of least resistance is one which the mother finds all too easy to follow. The danger is that an adoption order would legitimise an approach which saw the father removed from S's life. S needs the position of his father cementing in his mind. The father is S's father genetically and, for the present legally (he has parental responsibility). S needs to know this as well as to see his father. True it is that the step-father is S's psychological and social father but in my judgment this reality can and should be confirmed by the making of an order granting parental responsibility to the step-father under section 4A CA89.
45. The ISW's view was as follows: "In my view a parental responsibility order (section 4A of the 1989 Children Act) would meet the need for [the step-father] to make decisions in administrative and social matters as he outlined to me…I am not convinced that an adoption order would give S the emotional stability which [the step-father] believes it would do. While S has said to me that he does not want to see his father, in exploring this with him he did not express any fear of his father. He told me that he 'does not remember him as he was a baby' and that 'he knows what he looks like as he has a book (life story) about him'. His father therefore is like a stranger to him as he has not had the opportunity to build a bond with him through contact with him." I agree. I believe S must have that opportunity.
46. In Re P McFarlane LJ referred to the range of orders available to reflect the position of a step-parent in the life of a child. In my judgment an order under section 4A CA89 is the right place on the scale for this step-father and this family. It reflects realities and perhaps in an important sense it represents, and presents to S, a truth: that he has 3 parents, not 2. Truth is good for children. I am left with no sense in this case that an adoption order is required or would do any good. I could not dispense with the father's consent. I will dismiss the application.
47. Conclusion. I check this outcome by reference to the welfare checklist:

a. S does not wish to see his father at present but that is a view which has been influenced by the mother and step-father and they should bring their influence to bear positively in future. As intelligent professionals they are capable of this.

b. S has 3 parents who love him and he needs a relationship throughout his life with all of them. The effect of giving up his father and ceasing to be a member of his father's family would perhaps not be profound. Indeed, there is a sense in which he could not by adoption cease to be a member of the father's wider family, because some of it is also the mother's family. There is, however, no need to give up his father or cease in any sense to be a member of his original family. He needs and should have the opportunity of a proper relationship with his father.

c. There is nothing in terms of S's age, gender or background which is of particular relevance.

d. S is unlikely to experience any significant harm in future, whatever the outcome of this case, but his present sense of insecurity, such as it is, can be alleviated by the approach of his mother and step-father and is best alleviated in that way rather than by an adoption order.

e. I have sought to consider the exercise of all powers available to the court and determined that a parental responsibility order under section 4A CA89 is appropriate.

48. My intention is to make an order for S to spend time with his father. It will be limited initially, and perhaps for a long time. I will adjourn the case to a hearing approximately 4 weeks from now. I expect the parents – the 3 of them – to come up with a plan for the introduction of S to his father. It may involve a mediator if that can be funded (this is so often the problem with mediation) and organised; but frankly, the problem we have here is merely one of 'modern families'. It is capable of being solved simply and should be solved simply. I am close to certain that the best way of introducing S to his father is something along the lines suggested by the mother, and directly involving her. There should be more than one such meeting. If the parents cannot formulate a plan, then I will have to impose one, but I hope it does not come to that.
49. I cannot end this judgment without thanking the professionals involved, social workers and lawyers, for their assistance. I must also express my regret and apologise to the parties for the delays within the court system over the years and my own role in those, including the 3 weeks it has taken to produce this judgment caused I am afraid by the pressure on the daily list and other professional commitments.

HHJ Robin Tolson QC

The Central Family Court,

1 July 2016