England and Wales Family Court Decisions (other Judges)

This judgment was sent to the parties on 17th February 2017.

 

The judgment is being distributed to the father and to the local authority on the strict understanding that the anonymity of the children, their sibling and the adult members of their family, including their foster carers and their adoptive parents, must be strictly preserved. All persons, including representatives of the media, must ensure this condition is complied with. Failure to do so will be a contempt of court.

 

Confidential case serial numbers

IN THE FAMILY COURT

Bournemouth Combined Court

17th February 2017

HHJ Meston Q.C.

Designated Family Judge

 

 

Re R and E (children)

HHJ Meston Q.C.:

Introduction

1.      This judgment follows the hearing of a claim by Mr M G (the father) against D Council (the local authority) for damages. The father alleges that the local authority acted unlawfully in causing two of his children to be known by the surname of their prospective adopters.

 

2.      The two children concerned are the father's older daughters, R, who was born in 2005, and E, who was born in 2007. Both children have now been adopted following care and placement orders. They have a younger sister, B, who has been placed and adopted separately.

 

3.      Although I had originally directed on 20th October 2016 that the hearing of the father's claim for damages should be held in private to protect the interests of the children (under CPR rule 39.2), the father subsequently objected to that direction. I reconsidered the position and directed on 10th November 2016 that the hearing might proceed in public subject to express conditions set out in the order that was made on 10th November 2016. Those conditions (which still apply) were as follows:

(i)                The injunctions made in case number xxxxx on 30th October 2014 and continued on 20th July 2015 remain in force.

(ii)             Mr M G and Mr R G (the father's brother) shall not in any way instruct, encourage or support any other person or organisation in the publishing or broadcasting in any newspaper, magazine, public computer network, internet website, social networking website, sound or television broadcast, or cable or satellite programme of any information or material which identifies or is likely, whether directly or indirectly, to identify the names and addresses of

(a)  the children (whose details were set out in the schedule to the order);

(b)  the names and addresses of the birth parents, the adoptive parents or other relatives of the children;

(c)  any school attended by the children at any time;

(d)  any past or present teachers or other members of staff or pupils of any such school attended by the children at any time;

(e)  any witness or potential witness in these proceedings; and

(f)   any past or present officers or other members of staff of the local authority.

(iii)           The children and their adoptive parents shall be referred to only by initials during any hearings in open court.

(iv)           It was also directed (pursuant to CPR rule 31.22) that any document identifying the children or their adoptive parents which is read to or by the court or referred to at any hearing in public shall be used only for the purpose of these proceedings and shall not be disclosed to any other person or organisation without express permission of the court.

(v)              Any judgment to be published will be anonymised. So far as may be necessary at the conclusion of the proceedings the court will consider whether the local authority should be identified in any judgment.

The order stipulated that any reference to the children in the order is to continue to apply to each child notwithstanding their names have been changed on adoption. As appears later in this judgment I have decided that in any version to be published not only must the anonymity all family members be strictly preserved but also local authority and their employees should not be identified.

 

4.      The change of the children's surname occurred after the local authority had been authorised by a placement order to place the children for adoption and after the children had been placed with prospective adopters, but before the making of adoption orders. At that time the provisions of section 28 of the Adoption and Children Act 2002 applied to prevent any person from causing the children to be known by a new surname without leave of the court or consent of the parents. That restriction was recorded in a notice on the face of the placement order. The father claims that the local authority failed to seek to obtain the consent of the children's parents or leave of the court and therefore acted in unlawful breach of section 28 and also in contravention of his and the children's rights under Article 6 and Article 8 of the European Convention on Human Rights.

 

5.      The circumstances relating to the change of the children's surname are not, in themselves, complicated but they occurred against a background of lengthy and difficult proceedings relating to the children. The litigation history is relevant because it explains the delays in finalising the adoption of the children, an outcome which the father has been unable to accept; and because it shows the developing antagonism of the father towards the local authority. The father has sought with persistence and determination to oppose the process of adoption and to have the children returned to his care. He and his brother have repeatedly expressed strong criticisms and grievances about the local authority and the employees of the local authority who have been involved with the children and they have challenged the professional integrity of the children's services and their legal representatives. The father describes himself in various ways in correspondence after his signature as:

"Loving Father and Litigant in Person"

"Home Office Qualified Crime Reduction Adviser"

"Adviser on Institutional & Organisational Abuse" and

"Witness to the Independent Inquiry into Child Abuse"

 

The litigation history

6.      The litigation has involved the following proceedings:

(a)           Under section 31 of the Children Act 1989 and under section 22 of the Adoption and Children Act 2002 concerning the 3 children of the family in respect of whom the local authority sought, and were granted, care and placement orders which were made by the Family Proceedings Court on 7th August 2013.

(b)          Under section 24 of the Adoption and Children Act 2002 when the father twice unsuccessfully sought leave to apply for revocation of the placement orders.

(c)           The prosecution and conviction of the father for an offence under section 34 of the Adoption and Children Act 2002 as result of his attempt to remove E from her foster carers for which, following a plea of guilty, he was sentenced in June 2015 to a short suspended sentence of imprisonment and a restraining order was made.

(d)          Applications by the local authority for injunctions and for other protective orders against the father and also his brother, such injunctions being granted on 30th October 2014 and on 20th July 2015

(e)           The application for adoption of B by her foster carers and the application by the father for leave to oppose the making of an adoption order. His application for leave to oppose was refused on 21st August 2015 and the adoption order made on 16th September 2015.

(f)           The application by the father for leave to apply for post-adoption contact with B which was refused on 23rd October 2015.

(g)          The applications for adoption of R and E and the father's applications for a committal order and his current claims for damages.

(h)          The prosecution of the father for a breach of the restraining order for which in September 2016 the magistrates' court imposed a community order for 12 months with a thinking skills programme requirement and 15 days' rehabilitation activity requirement.

(i)            An application by the father and his brother for revocation of the injunctions made against them, which was dismissed on 9th January 2017.

 

7.      There are several relevant previous judgments as follows:

(a)           The justices' reasons dated 7th August 2013 when the final care orders in respect of all three children were made, together with placement orders authorising the local authority to place them for adoption.

(b)          My judgment dated 28th October 2013 when I dismissed the father's appeal against the care and placement orders.

(c)           The judgment of Arden LJ dated 18th February 2014 ([2014] EWCA Civ 532) when the father's application for permission to appeal was refused.

(d)          The justices' reasons dated 28th April 2014 when the Family Court refused the father's first application for revocation of the placement orders (which had been issued in February 2014, shortly after the decision of the Court of Appeal).

(e)           The judgment of Judge Bond handed down on 4th September 2014 when dismissing the father's appeal against the refusal of his application for leave to apply to revoke the placement orders.

(f)           The judgment of McFarlane LJ dated 4th November 2014 ([2014] EWCA Civ 1591) when the applications of the father and of his brother (who sought to apply for contact with the children) for permission to appeal against the decisions of Judge Bond were refused as being totally without merit.

(g)          The judgment of Judge Bond of 25th November 2014 when he refused the father's second application for revocation of placement orders (which had been issued within days of the decision of McFarlane LJ).

(h)          My judgment dated 20th July 2015 when I granted applications by the local authority for various injunctions and other orders to restrain the father and his brother from molestation and harassment.

(i)            The reasons given by Macur LJ on 24th August 2015 (B4/2015/2615 & 2616) refusing applications to the Court of Appeal by the father and his brother for permission to appeal against the injunctions and non-molestation orders as being totally without merit.

(j)            My judgment dated 21st August 2015 when I refused the father leave to oppose the making of an adoption order in respect of B.

(k)          My judgment of 16th September 2015 when I made an adoption order in respect of B, refusing the father's application for an adjournment pending his proposed application for judicial review.

(l)            My judgment dated 23rd October 2015 when I refused the father's application for leave to apply for post-adoption contact with B.

(m)        The reasons given by McCombe LJ on 24th June 2016 (B4/2016/1671) when the father's application for to the Court of Appeal for permission to appeal against that refusal was refused as being totally without merit.

(n)          The judgment of King LJ dated 18th February 2016 ([2016] EWCA Civ 361) refusing the father's application for permission to appeal against the adoption order of 16th September 2015.

(o)          My judgment in the adoption proceedings in respect R and E given on 1st June 2016 refusing the father's request for a stay of the adoption applications pending determination of his applications for a committal order and damages. I also refused the father's application for permission to appeal against the order then made.

(p)          My judgment dated 14th July 2016 when I refused the father's applications for leave to oppose the making of adoption orders in respect of R and E, and struck out his application for a committal order against the local authority's director of children's services.

(q)          The reasons given by Macur LJ in the Court of Appeal on 5th August 2016 (B4.2016.3093) refusing the father's application for permission to appeal against the refusal of his application for leave to oppose the making of adoption orders and against the dismissal of his application for committal of the director of children's services for contempt of court. Macur LJ considered the application as being totally without merit

(r)            My further judgment of 2nd September 2016 when I refused the father's request for a stay of the adoption proceedings following an unsuccessful application by him to the Supreme Court; the adoption orders were then made and it was directed that the names and surname by which the children are to be known will be as stated in the applications.

(s)           My judgments of 9th January 2017 when I dismissed the application by the father and his brother for revocation of the injunctions and non-molestation order, made an order for costs against them (not to be enforced without leave), refused their cross-application for costs and compensation and refused the father's application for permission to appeal against the orders then made.

 

8.      In addition to those proceedings I understand from the father that he has made two applications to the European Court of Human Rights. He has also sent several letters before claim under the pre-action protocol for judicial review including letters sent in September 2016 to the two schools attended by R and E. He has also indicated that he is to pursue other claims not yet issued, which so far as I could understand did not overlap directly with the current claim relating to the surnames of the children.

 

Background history

9.      Mr G (the father) is now 44 years old. He had parental responsibility having been married to the mother of their 3 daughters. The local authority  became aware of some difficulties within the family in 2010, but there were no substantial concerns until the latter part of 2011, when there was evidence of conflict and violence between the parents and difficulties in their provision of care to the children, causing concerns about the effects on the children of the disputes between the parents and concerns about the safety and supervision of the children.

 

10.  The parents separated in November 2011 and were divorced in 2012. In January 2012 the parents agreed to all three children being accommodated by the local authority (D Council) under section 20 of the Children Act 1989. In February 2012 the local authority brought proceedings for care orders which continued in the D Family Proceedings Court. The two older children were returned to the care of the father in June 2012, but were said to display very anxious behaviour which was attributed to a lack of stability of care. The youngest child B went to live with the father and her two older sisters in September 2012.  However, in October 2012 the father went to the local authority to say that he was worried that he was not managing with the girls who were fighting. By that time it was said that the father felt overwhelmed with caring for all 3 children and that he became less responsive to their needs and less consistent in their care, resorting to shouting and smacking. There were also continuing concerns about the father’s failure to supervise the children adequately. As a result of the increasing concern in November 2012 B was returned to foster care (where she has remained with the same carers (Mr and Mrs W) who are now her adoptive parents). Subsequently in December 2012 R and E also returned to foster care: they have remained placed separately from B.

 

11.  The local authority explored the options for the long-term care of the children and concluded that there were no members of the wider family able to care for them.

 

12.  The local authority therefore produced their care final plans for placement of the children outside the family with a view to adoption, and accordingly applications for placement orders were issued.

 

13.  At the final hearing before the Family Proceedings Court in August 2013 the applications of the local authority were supported by the children's guardian and by the evidence of the jointly instructed chartered psychologist who provided a report and gave oral evidence. At that hearing the parents were each represented by counsel and the evidence was properly tested. The court made in the care orders and placement orders, approving the care plans of the local authority.  In so doing the court dispensed with the consent of each of the parents on the basis that the children's welfare required it. The Justices' reasons included a finding that unfortunately the parenting skills of the parents had not improved sufficiently or consistently enough to reduce the risk of future significant harm and that the court could not see any chance of any significant changes in either parent within the timescale of the children. 

 

14.  The position of each of the children was considered individually. The care plans approved by the court in 2013 stated that the local authority would seek an adoptive placement for the 3 children together but if such a placement could not be found B would be placed separately. Thus it appears that the primary plan was to place the children together if possible; and that, in accordance with good practice, there was also contingency plan for separate adoptive placements if a placement for all 3 children together could not be found within a reasonable time.

 

15.  The social worker's final statement in the care proceedings provided in March 2013 recorded some concerns which had been raised by the foster carers regarding the children's contact with the father and his ability to manage the children. Supervised contact continued after the making of the placement orders in August 2013 but was suspended by the local authority in June or July 2014.

 

16.  The father's appeal against the care and placement orders was unsuccessful, as was his subsequent application to the Court of Appeal for permission to pursue a second appeal which was refused by Arden LJ in February 2014.

 

17.  By the time of the final hearing in August 2013 the children had been placed separately for some time. B had remained, and was progressing well, in a foster placement with Mr and Mrs W.

 

18.  In February 2014 the father and the paternal grandfather raised concerns about the care given to E and R by their then foster carers (Mr and Mrs F). These concerns were answered in a letter dated 5th March 2014 from the Director for Children's Services (Ms T) to the paternal grandfather and in a letter dated 18th March 2014 from the Children's Social Care Team Manager (Mrs A) to the father.

 

19.  As I understand the father's position, he has never accepted the local authority's explanations and responses to his concerns about the treatment of R and E by the foster carers (Mr and Mrs F). He has repeatedly reminded the court that his daughters are "Victims of Crime" and that he has obtained from the police a crime reference number.  He also wishes to proceed with an application on their behalf to the Criminal Injuries Compensation Authority.

 

20.  After the hearing in August 2013 until some time in the first part of 2014 the local authority's intention was to place the children together in an adoptive placement in accordance with their care plans, and on that basis another couple, Mr and Mrs P (now the adopters of R and E), were being assessed as potential adopters for all 3 of them.  However, the foster placement of R and E with Mr and Mrs F broke down before the assessment process of Mr and Mrs P was finished. The placement of R and E with Mr and Mrs F was ended when R disclosed that she had been slapped by Mrs F. In the circumstances the local authority decided to place R and E with Mr and Mrs P before completion of their approval as adopters.  R and E therefore went to live with Mr and Mrs P on 1st May 2014.  This process was explained to the father in a letter to him (undated but sent in November 2014) from the local authority's Practice Manager (Mrs T): a copy of that letter was provided to the court by the father himself with one of his subsequent applications.

 

21.  Meanwhile the foster carers (Mr and Mrs W) with whom B had lived since November 2012 gave notice of their wish to adopt her. It was in those circumstances that the local authority decided that the better course was to allow B to remain with Mr and Mrs W (who have since adopted her) and for R and E to remain with Mr and Mrs P who too were approved as potential adopters. Contact between the siblings was maintained.

 

22.  It is not necessary to set out a detailed account of the father's determined and prolonged efforts thereafter to reverse the decisions of the courts and to have the children returned to his care. In the course of those efforts he has expressed an increasing number of grievances, principally against the local authority. 

 

23.  The first of the father's applications for leave to apply for revocation of the placement orders was heard by the justices on 28th April 2014.  The court was not satisfied that there had been any relevant or sufficient change of circumstances since the making of the placement orders. Accordingly, the father was refused permission to apply for revocation of the placement orders. His appeal was dismissed by Judge Bond and on 4th November 2014 his application to bring a second appeal was heard by McFarlane LJ and was refused, being described as totally without merit.  In giving judgment [2014] EWCA Civ 1591 at paragraph [18] of his judgment McFarlane LJ said that:

      "At the core of his application for leave to revoke there had to be something to persuade the magistrates that there had been a change in his circumstances justifying consideration of whether he should have been given leave to apply to revoke, yet there was nothing and his application simply did not get off the starting blocks.  The only change he was putting forward that related to his circumstances was that he had now achieved passing the theory test to become a driving instructor.  This case was about childcare, domestic disharmony, domestic violence, and the impact of that on the children.  The magistrates could not be criticised for holding that the change in his employment was really of no relevance, and that was the view that the judge took as well."

      McFarlane LJ also noted with concern the effect on the children of the father's ability to hold up the implementation of the plans for the children's long-term future.

 

24.  Shortly after the father issued further applications for leave to apply for revocation of the placement orders.

 

25.  The second group of applications by the father for leave to apply for revocation were heard and dismissed by Judge Bond on 25th November 2014. Judge Bond did not consider that the father had advanced any sufficient change of circumstances; and Judge Bond added that if he was wrong about that he also did not consider that the applications for revocation had any real prospect of success.  Judge Bond also again refused permission to appeal. 

 

26.  Meanwhile, in June or July 2014 the local authority suspended contact between the children and the father and contact did not resume.

 

27.  By letter dated 1st December 2014 the father was informed by the local authority that it had been decided that R and E should be placed for adoption with their current foster carers Mr and Mrs P and that accordingly the placement became a prospective adoption placement with effect from that date.

 

28.  On 17th December 2014 the father attempted to snatch E from the porch of the house of her foster carers (Mr and Mrs P).  The father was prosecuted for an offence under section 34 of the Adoption and Children Act 2002 which prevents removal of a child from prospective adopters.   The criminal proceedings against the father concluded in the magistrates' court in June 2015 when the father was sentenced following a plea of guilty.  A short suspended sentence of imprisonment was imposed and a restraining order was made. The father's behaviour on 17th December 2014 caused the children and prospective adopters distress and anxiety.  E was very frightened.  R was not present but was also upset and angered when she heard of what had happened.  It appears clearly from the evidence given in the recent hearing that this incident contributed to the children's wish to change their surnames to that of their prospective adopters.

 

29.  In the course of the subsequent application made by the local authority for injunctions against the father and his brother the court was told that the prospective adopters, Mr and Mrs P, were reluctant to initiate an application for adoption orders until they had the protection of the injunctions which were being sought to supplement the restraining order which had been made by the magistrates' court. The injunctions were granted in July 2015 after a contested hearing. The evidence then heard and the submissions of the father and of his brother indicated their strong hostility towards the local authority. There was an unsuccessful application by them to the Court of Appeal. More recently I have heard and refused an application by them to revoke the injunctions.

 

30.  Meanwhile, in March 2015 B's foster carers (Mr and Mrs W) were approved as prospective adopters for her. Their application to the court for an adoption order in respect of B was issued on 9th June 2015. The father sought leave to oppose the application. I refused his application for leave and the adoption proceeded. He also sought leave to apply for post-adoption contact with B which I refused. It is unnecessary to repeat the history of those proceedings which is set out in the relevant judgments.

 

31.  When the application for an adoption of B was issued and the father indicated his wish to oppose that application he was directed to file a statement setting out any changes of circumstances upon which he sought to rely to obtain leave to oppose. In the event, despite several opportunities to do so the father failed to provide a statement and he did not attend the hearing on 20th August 2015 which had been fixed for the hearing of his application for leave to oppose the making of the adoption application in respect of B.  I could detect no sufficient change of circumstances and so dismissed his application and the adoption order was subsequently made.

 

      The adoption proceedings in respect of R and E

32.  Although Mr and Mrs P, the foster carers with whom R and E had been placed since 1st May 2014, had been approved as prospective adopters with effect from 1st December 2014, they deferred issue of applications for adoption until injunctions were in place.

 

33.  The applications by Mr and P for an adoption order in respect of the children were sent to the court in February 2016 and issued on 7th March 2016.  The applications were supported with the required Annex A reports completed in February 2016. The reports incorporated the recommendations and reasons of the adoption panel and of the agency decision-maker.  Those reports provided positive descriptions of the prospective adopters, and raised no doubts as to their eligibility and suitability to adopt. The reports described the children as having come to depend on the prospective adopters to keep them safe and secure. The report in respect of each child indicated that both of them were happy and content, that they had become securely attached to the prospective adopters and that they had integrated into their household and family life. The reports stated that both children had said that they want to remain with the prospective adopters and to be adopted by them.

 

34.  The application forms sent to the court in February 2016 had been signed earlier with a statement of truth by Mr P dated 13th September 2015 and by Mrs P dated 20th September 2015. The father maintains that Mr and Mrs P could not wait to "jump the gun" by changing the children's names. In reality however they had been able to apply for adoption at any time after 1st December 2014 but delayed until after there were injunctions in force.

 

35.  The application forms stated the names by which prospective adopters (Mr and Mrs P) wished the children to be known, including their surname. It is a requirement of an application form for an adoption order that the prospective adopters enter the surname and other names by which they want the child to be known if an adoption order is made. These are the names that will be entered on the Adopted Children Register following the making of the adoption order if granted. Since (at least) the enactment of section 21 of the Adoption Act 1958 every adoption order made by a court in England specifies the names and surname of the child stated in the application for an adoption order which are to be entered in the Register.

 

36.  On receipt by the court of the applications for adoption orders the final hearing was listed for 21st April 2016 and notices were given to the birth parents as required.

 

37.  The mother returned the acknowledgement form to the court indicating that she did not wish to attend the hearing and did not wish to oppose the applications.

 

38.  The mother, who is now divorced from the father, had participated in the preceding care proceedings, but she appears since to have accepted the decision of the court. She has not supported the father's repeated efforts to overturn the care and placement orders. She completed and returned acknowledgement forms indicating that she did not wish to oppose the application for adoption in respect of B or the later applications in respect of R and E.

 

39.  The father responded to the notification from the court in an e-mail of 29th March 2016. In this he said that in his view that notice had been deliberately sent out by the court office so as to cause him stress, upset and impact on his religious worship and observance over the entire Easter holiday weekend. He has repeated this suggestion in the course of the current proceedings.

 

40.  I will not repeat the detail of the subsequent procedural history of the adoption proceedings that was set out in my judgment of 14th July 2016.

 

41.  At the first hearing in those proceedings on 21st April 2016 the father made submissions as to his protected status under the Equality Act 2010 and as to the duties and potential remedies available to him under sections 6 and 7 of the Human Rights Act 1998. He informed the court that he suffers from Barrett's dysplasia, liver difficulties, type 2 diabetes and stress and that he is entitled to employment and support allowance.

 

42.  The father stated also on 21st April 2016 that the prospective adopters had caused or permitted a change in the surname by which the children were known at school.  This was the first indication to the court or to the local authority of the father's concern about the change of surname.

 

43.  Accordingly, I gave directions that the local authority should file with the court and send to the father a position statement (i) in response to his assertion that a change of surname had been caused or permitted and (ii) explaining the local authority's reasons for not agreeing to fund legal representation for the father in these proceedings (as he had asked them to do).  

 

44.  In the light of other developments that do not need to be described in this judgment I listed a further directions hearing on 13th May 2016.

 

45.  Before the hearing on 13th May 2016 the father wrote again to the court requesting an extension of time for the filing of his statement (which was by then overdue). He also provided a statement made by him dated 9th May 2016 in which he expressed his shock at learning that the local authority had caused his two older children's surnames to be changed and at the local authority's explanation that the children had chosen to use the surnames of the prospective adopters. He contended that the local authority and the director of children's services should be held in contempt of court and that consideration should be given to the director's "immediate committal to prison". He also asked the court to consider financial compensation by an immediate award of a sum in the region of £40,000 without prejudice to any future claims. In support of his contentions the father provided a copy of the report of the decision of Holman J in the case of Re PC (Change of Surname) [1997] 2 FLR 730.

 

46.  At the hearing arranged for 13th May 2016 I extended the time for the father's statement to 27th May 2016 and made a consequential direction extending time for the local authority's response. It was recorded that any permanence reports would be disclosed to the father by 17th May 2016. It was also recorded that the father had then informed the court that he wished to seek a committal order against the local authority's head of children's services and to claim financial compensation against the local authority arising out of the change in the children's surname.

 

47.  Because the father had asked for guidance as to procedure in respect of his proposed applications the court wrote to him on 14th May 2016 referring him to rule 37.10 of the Family Procedure Rules and to Practice Direction 37A.  It was pointed out to him that the Practice Direction stated a requirement for there to have been a penal notice endorsed on an order if disobedience is to be dealt with by proceedings for contempt of court.

 

48.  By further e-mail dated 19th May 2016 the father wrote to the court requesting an immediate stay of the proceedings until the unlawful actions of the local authority in causing the change of surnames of the two children without his consent was remedied. He confirmed that he had received copies of the permanence reports but he now requested orders for disclosure of unredacted versions of the permanence reports and of the documents previously disclosed to him. He asserted that he had a right under European case law to see such confidential and unredacted documents that had been filed with the court, and that if unredacted documents were not disclosed to him he was likely to suffer a violation of his Article 6 rights on the basis of inequality of arms. On receipt of that further e-mail I directed another hearing for further directions on 1st June 2016.

 

49.  Shortly after, on 26th May the father sent a further e-mail for my attention emphasising that his request for a stay was based on his feeling that he was unable to file his substantive statement with regards to the change of circumstances (i.e. to support his application for leave to oppose the making of adoption orders) until his applications for committal orders and for compensation had been determined.

 

50.  On the same day (26th May 2016) the father issued two applications (one in respect of each child) under Part 18 of the Family Procedure Rules 2010 (i) for a committal order against the Director of Children's Services and (ii) for damages for himself and for the children for causing them to be known by a new surname without his written consent contrary to the notices in both the care and placement orders dated 7th August 2013. He also sent for my attention a copy of the Practice Direction applicable to all proceedings for committal for contempt of court stating that the general rule that hearings for committal should be in open court.

 

51.  On 1st June 2016 I heard the father's applications for a stay and for further disclosure. I refused the father's application for a stay of the adoption proceedings until determination of his recent applications for a committal order and for damages. In my judgment, there was no justification for staying or postponing the adoption proceedings as proposed by the father. I did not consider there was any real risk of injustice to the father, and any notional risk was outweighed by the interests of the children and of the prospective adopters in having the proceedings determined.  The court had a duty to bear in mind that, in general, any delay in coming to a decision relating to the adoption of the children was likely to prejudice their welfare (section 1 (3) Adoption and Children Act 2002) and a duty to avoid delay by ensuring that the timetable set by the court was adhered to (section 109). The court had set a date for the hearing of the father's application for leave to oppose and had given him a generous amount of time to provide his statement. I gave a short judgment on 1st June 2016 at the end of which the father indicated his wish to appeal against my refusal of a stay pending determination of his applications for committal and damages. I refused permission to appeal, confirmed that any further application for permission to appeal should be made to the Court of Appeal and directed that the father might have a transcript of the judgment at public expense. I am not aware of any application to the Court of Appeal in respect of the decision made on 1st June 2016.

 

52.  Counsel for the local authority confirmed that the local authority were considering whether to apply for the committal application and damages claims to be struck out or summarily dismissed. In the event the local authority did pursue an application to strike out the committal application but not the damages claim by the father. However, the local authority did seek dismissal of the damages claims made by him on behalf of the children in default of appointment of a suitable litigation friend for them.

 

53.  The father thereafter submitted a considerable amount of material in support of his application for leave to oppose the making of adoption orders and his applications for a committal order and for damages including:

(i)          A statement dated 8th June 2016 in which he set out 13 matters upon which he relied as changes of circumstances and the basis upon which he opposed the making of adoption orders, and an addendum dated 10th June 2016 setting out 2 further matters relied on.

(ii)       An e-mail dated 17th June 2016 addressed to the Chief Executive of the local authority quantifying his claims for compensation and costs. Without prejudice to any future claims in respect of failures to safeguard the children or his own mother the father claims £5,000 by way costs incurred in representing himself and compensation in respect of the change of surname of both R and E of £20,000 for himself and £20,000 for each of the two children. This e-mail was followed by further e-mails to the Chief Executive dated 7th and 29th July 2016 requiring settlement of his claim for £65,000 without further delay.

(iii)     An e-mail dated 23rd June 2016 contending that as a matter of urgency the director of children's services (Ms T) should be summonsed to attend a public hearing to give an explanation and for sentencing for contempt of court. The same e-mail was sent to the Chief Executive of the local authority requesting the immediate suspension of Ms T.

(iv)     A further e-mail dated 28th June 2016 referring to section 3 of the Human Rights Act 1998 and to case law. He repeated his contention that the local authority had breached his Article 6 ECHR rights by refusing to fund legal representation for him. He also repeated his concern that his daughters' views had not been independently represented because the court had failed to appoint a guardian for them in these proceedings (this being a matter which I had considered previously, pointing out to the father that normally a guardian would not be appointed or re-appointed unless the court decided that an application for leave to oppose the making of an adoption order should be granted).

(v)        Copies and summaries of the UN Convention on the Rights of People with Disabilities (with particular reference to Article 23 which provides that governments must ensure there is no discrimination against disabled people in laws about adoption or marriage) and the UN Convention on the Rights of the Child.

(vi)     An article by Elisa Toma on "The Principle of Equality of Arms - Part of the Right to a Fair Trial" from which the father quoted extensively during his submissions during the hearing of the claim relating to the children's surname and during earlier proceedings.

 

54.  The matters relied on by the father as relevant changes of circumstances under section 47 of the Adoption and Children Act 2002 included his claims against the local authority for contempt of court and for damages for allowing the surnames of the children to be changed as a change of circumstances. He submitted that the local authority had tried to blame the children for the change of names by saying that it was the children who wanted their names to be changed. He submitted that this showed institutional abuse by the local authority and was an attempt to cause detriment to his application for leave to oppose the making of adoption orders.

 

55.  In response to the father's statement seeking leave to oppose the making of adoption orders the local authority provided a statement dated 8th June 2016 by Ms C, the allocated social worker for the children. She expressed the view that the father's reliance on his health conditions and the fact that he is now a disabled person in receipt of various state allowances did not indicate that he would now be a position to provide safe and consistent care that the children require. She dealt with other specific matters relied on by the father as relevant changes in circumstances, including the change of the surname used by the children. She said that the children had known for well over a year that their current carers wished to adopt them and said that this was supported by the local authority. The children wished to be adopted by their current carers and were very clear that they see themselves as full and permanent members of the family. She described them as impatient with the delay and as seeking to be known by to their peers as permanent members of their carers' family. Ms C stated the view of the local authority that the father's continued lack of understanding of the needs of his children for stability, his self-reported deteriorated physical and mental health and his continued harassment of the children, their carers and social care professionals supporting the children showed that he was less able to meet the needs of the children.

 

      The hearing on 10th June 2016

56.  The father attended in person accompanied and supported by his brother. Oral evidence was not required but I heard extensive submissions by the father and went into open court when dealing with submissions relating to his committal applications.

 

57.  In the course of the hearing there were also interventions by the father's brother who strongly expressed his suspicions about the prospective adopters and their business dealings. He said that he had checked records at Companies House and found that their company had links to [a country in Africa]. He suggested that they could be involved in tax evasion and that he had reported matters to "Action Fraud" at the City of London Police.  He said that as a concerned member of the public he would report them to HMRC although he accepted there was no evidence of tax evasion. He also said that the local authority social workers had not complied with their professional duties and standards, a recurrent contention of the father and of his brother.

 

58.  I gave a reserved written judgment concluding that I did not consider that the father had advanced anything which would be sufficient to find that there had been a change of circumstances to justify allowing his application. If that conclusion was incorrect I confirmed that the father did not have any solid prospect of successfully opposing the adoption applications. The reality was that the father had not had the care of the children since December 2012, and that since May 2014 they had been well looked after and established in the care of the prospective adopters. Accordingly, I refused his applications for leave to oppose.

 

59.  Among the several matters which had been advanced by the father as a relevant change of circumstances had been his applications for committal and his claims for damages. In the judgment that I gave I concluded that whether or not the father's claims and complaints relating to the local authority for allowing the surnames to be changed informally without application to the court had merit, they did not represent a relevant change of circumstances capable of affecting the outcome of the decision as to whether the father should have leave to oppose the making of adoption orders. 

 

60.  However, in the course of his current claim for damages the father has again submitted that the local authority allowed the children's surnames to be changed deliberately so as to further the children's integration with the prospective adopters and thereby to frustrate his application for leave to oppose the making of adoption orders.

 

61.   As appears from the reserved judgment which set out those conclusions I also then struck out the committal applications, essentially because there was no order containing a penal notice. I refused the father's application for permission to appeal. He sought permission to appeal from the Court of Appeal. On 5th August 2016 Macur LJ refused his application for permission to appeal as being totally without merit (B4/2016/3093).  The father applied to the Supreme Court for permission to appeal, which led to delay in finalisation of the adoption applications. After confirmation by the Supreme Court that it had no jurisdiction to entertain the proposed appeal I made the adoption orders on 2nd September 2016, directing that the names and surname by which the children were to be known would be as stated in the applications. I provided a short written judgment explaining the recent history and my reasons.

 

      The damages claim.

      The legal context.

62.  Placement orders were made in this case on 7th August 2013. R and E went to live with Mr and Mrs P on 1st May 2014. The placement became a placement for adoption on 1st December 2014. Notification of the placement decision was given to the father (in accordance with regulation 33(3) of the Adoption Agencies Regulations 2005). The adoption orders in respect of R and E were made on 2nd December 2016.

 

63.   The placement orders authorised the local authority to place the children for adoption (section 21 of the Adoption and Children Act 2002).  It gave the local authority parental responsibility and enabled the local authority to curtail parental responsibility of the parents (section 25 (2) and (4)). Placement with prospective adopters also gave parental responsibility to them (section 25 (3)).

 

64.  As summarised by Charles J in DL and ML v. Newham LBC & Secretary of State for Education [2011] EWHC 1127 (Admin); [2011], 2 FLR 1033, the local authority as adoption agency may determine that the prospective adopters' parental responsibility is to be restricted to the extent specified in the determination (section 25(4)). The giving of this parental responsibility is an important factor in determining whether and when family life exists, or is established, between prospective adopters and the child placed with them. However, the parental responsibility of the prospective adopters is limited in respect of changing the children's name. 

 

65.  Section 28 of the Act sets out further consequences of placement for adoption, including the prohibition, where a placement order is in force, on "any person …. causing the child to be known by a new surname" unless either the court gives leave or each parent gives consent. Assuming that the consent of the parents is not forthcoming a local authority seeking approval for a change of the surname of a child who is subject to a care order or a placement order should seek leave of the court by an application. Such an application would normally involve re-appointment of a children's guardian.

 

66.  The placement orders that were made in this case on 7th August 2013 were issued in the standard form (A70) and contained the following prominent, standard wording:

"Notice: Where a placement order is in force with respect to a child, no person may –

a)  cause the child to be known by a new surname, or

b)  remove the child from the United Kingdom (unless the removal is for a period of less than one month by the person who provides the child's home)

without the written consent of each parent or guardian of the child or the permission of the court. (Section 28 (2), (3) and (4), Adoption and Children Act 2002)"

 

67.  This warning notice, which is routinely recorded on such orders, was not, in itself, an order made by the court but rather a statement of the important statutory prohibition contained in section 28 of the Act. Neither the statute nor the warning notice refers to any potential sanctions or other consequences if any person acts in contravention of these prohibitions.

 

68.    The father has relied in the case of Re PC (Change of Surname) [1997] 2 FLR 730 in which Holman J considered whether people with parental responsibility can, lawfully, unilaterally cause a child to be known by a new surname without the consent of the others with parental responsibility, and whether schools, doctors and other holders of official or formal record should record or use a new surname without evidence of all requisite consents or a court order.  That was a case in which there were no public law proceedings in existence and there was no existing order in force when the mother, divorced from the father, took steps to change the surnames of the children to those of her new husband. Holman J reviewed the legal position up to and including the introduction of the Children Act 1989 when the concept of parental responsibility was introduced.  He referred to the underlying Law Commission report in which it was said that:

 "The child's surname is an important symbol of his identity and his relationship with his parents. While it may be in his interests for it to be changed, it is clearly not a matter on which the parent with whom he lives should be able to take unilateral action".

 

69.    Holman J held that where two or more people have parental responsibility for a child and either a residence order or a care order is in force, then one of those people can only lawfully cause a change of surname if all other people having parental responsibility consent in writing. In any other situation an appropriate order of a court is required. This was a case decided before the introduction of placement orders but plainly the principles are no different. The father has referred to certain passages from the judgment of Holman J who said that:

"No responsible school, doctor, education or health authority, or similar body could want unwittingly to aid or implement an unlawful act. Any change of surname is an important act in the life of a child, carrying with it emotional and psychological as well as social and practical consequences. It is hard to reverse. Any doubt about its lawfulness needs to be resolved before, not after any formal steps to implement the change had taken place."

In that case the head of the children's school had refused to change the school records to show the children by their new surname and sought advice from the local authority in whose area the children lived who advised the head that before he could change the children's names in the school register he needed to be certain that everyone with parental responsibility had given their consent to the change.  The local authority also asked the head for clarification as to whether the father had parental responsibility, if so whether he consented, and whether there was any relevant court order. On the facts of that case the local authority were held by the judge to have acted with impeccable correctness. Holman J said that the case illustrated the danger of not taking the necessary steps because the use, both informal and formal, of a new name may become ingrained before it is practical to stop it.

 

70.  In Re D, L and LA (Care: Change of Forename) [2003] 1 FLR 339 Dame Elizabeth Butler-Sloss P gave clear guidance applicable to both forenames and surnames summarised in the headnote as follows:

 "(1)   Changes of names were important matters and had to be treated with appropriate seriousness. No foster parent or carer should unilaterally change the forename of a child. Carers who had children placed with them by local authorities should have the limits of their powers and rights made clear to them at the beginning, before they took on the task of caring for the children. If the Department of Health were to issue guidance to all local authorities, and social services departments were then to issue guidance to the foster parents and prospective adopters on their lists, such a problem ought not to arise in the future.

   (2)   If for any reason foster parents or other such carers thought that a child's name should be changed, they should go straight to the social worker in charge of the case, or the adoption placement officer, and ask for the change and explain why. That should then be a matter of careful consideration by the local authority. In foster placements the parents should be consulted and allowed to express their views. If the change could not be achieved by consent, it might be necessary to invoke the inherent jurisdiction of the court."

 

71.  The guidance in that case was recently referred to with approval in Re C (Children) [2016] EWCA Civ 374 at paras [49]-[51].

 

72.  The father has also referred to the case of Re W (Children) (Change of Name) [2013] EWCA Civ 1488; [2014] 2 F.L.R. 221 in which Ryder LJ said (at para [13]): "The test is welfare, pure and simple."

 

73.  An unauthorised change of a child's surname could be an infringement of Article 8 of the ECHR in that a surname forms part of a child's personal identification and provides a link to his or her family of origin.  Relevant Strasbourg jurisprudence was referred to in argument in the leading case of Dawson v. Wearmouth [1999] AC 2 AC 308.  The case of Sterjna v. Finland (1994) 24 E.H.R.R 195 (in which the State prevented a change of surname by the adult applicant) indicates that the inconvenience of having to keep a name may not be enough. However, it is unlikely that there would be an infringement of Article 6 or 8 if the State has provided a procedure allowing for evidence to be heard and for due regard given to the competing arguments.

 

74.  It can also be argued that in addition to Article 8 of the ECHR a local authority is subject to the duties referred to in Article 8 of the UN Convention on the Rights of the Child (which has been ratified by the United Kingdom). That Article expressly protects the name of a child by requiring States

            "to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognised by law without lawful        interference."

Under Article 8(2) where a child is illegally deprived of some or all elements of his or her identity the State Parties are required to provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

 

75.  Both Conventions support a child's right to a name, in particular the surname of the parents which was registered after the child's birth. That surname also maintains a child's link to the family unit even though he or she no longer belongs to that unit and may later become formally severed from it by subsequent adoption.

 

76.  The statutory provisions in section 33(7) of the Children Act 1989 and in section 28 of the Adoption and Children Act 2002 are aimed at ensuring that no unilateral action is taken before adoption to reduce the child's formal connections with his or her birth family by change of name without agreement or court approval. They provide an important safeguard to prevent wrongful or inappropriate changes of name, but provide also a mechanism to permit changes by due process through court proceedings. The factors to be taken into account on an application under section 33(7) were considered in Re S (Change of Surname) [1999] 1 FLR 672 (CA) and Re M, T, P, K and B (Care: Change of Name) [2000] 2 FLR 645. Similar factors would be considered on an application under section 28, including the child's relationships with the birth family and prospective adopters.

 

The change of surname

77.  According to the statement of Mrs Ca, the adoption social worker, prospective adopters are informed as part of their training that a child's name cannot be changed. In her statement, she referred to what she described as "the Parental Responsibility agreement" given to Mr and Mrs P when their match with the children was agreed at the adoption panel on 26th November 2014.  In fact, there does not appear to have been any such document with that title, and it appears that Mrs Ca was referring to a printed "Checklist for Delegation of Parental Responsibility to Prospective Adopters".  This identified specific areas of responsibility for the children which were either delegated to prospective adopters, retained by the local authority or retained by the birth parents. One area specified as retained by the birth parents was described as follows:

"Decision to cause the child to be known as anything other than their given name (N.B. consent required from birth parents or leave of court)"

Also provided was the local authority's "Adoption information pack", consisting of 54 pages of guidance to potential adopters. At page 38 there is a summary of the position when the child is placed. This explains that when a child is placed with adopters, the adopters are delegated a level of parental responsibility to make certain decisions until the adoption order is granted, but it is also made clear that

"The child cannot be known by a different surname until such time as they are legally adopted unless the Court authorises this or the written consent of the parents is obtained".

 

78.  According to Ms C, who was the social worker for the children during the care and placement proceedings, at the time the placement of the children with Mr and Mrs P formally became a placement for adoption (on 1st December 2014) the children were fully aware of the proposal for adoption and they both told Ms C that they were looking forward to being adopted and thought it was "good". They were also aware that they would not be officially adopted until this was "agreed by a judge at court". Ms C said in her statement of 15th October 2016 that at about this time she had a conversation with Mr and Mrs P who told her that R had asked if she could start her new school as "R P." They told Ms C that they felt that R wanted to feel as 'normal 'as possible and to be known by the same name as her carers so that she did not have to explain or answer questions about her complicated family situation.  Mrs Ca gave evidence in her statement of 15th October 2016 of the same conversation with Mr and Mrs P.

 

79.  Ms C said in her statement that she remembered then speaking to her manager Mrs A for advice "and being told clearly by her that R's name could not be changed legally until the adoption order was made, but that if R wanted to be known as 'P' then, at 9 years old, her wishes and feelings were important and that it would not be in her best interests to 'force' her to be known as G".  According to Ms C Mrs A was clear that R's name should not be changed on any official documents either at the school or at Children's Services.

 

80.  Ms C's recollection of these events was supplemented by e-mails which were disclosed by the local authority in response to the father's claims, copies of which were annexed to the statement by Ms C of 15th October 2016. The first e-mail dated 19th December 2014 was sent by an adoption social worker to Mrs A (the Family Support Manager), Mrs T (the Practice Manager) and Ms C:

"I have just received a call from Mr P., He has said he has just secured a place at [name of school] they have been advised it is ok to register R as P, they would like to know if they are allowed to tell E that she will also be known as P so that she does not feel left out.

They need to know as soon as possible as they are trying to contact the schools before they break up.

Please can someone contact them on [telephone number].

 

81.  Mrs T then sent an e-mail to Mrs A dated 22nd December 2014:

"What do you think, I would like them to discuss this with adoption team before making a decision"

 

82.  Mrs A answered by e-mail on 23rd December 2014:

"Definitely. My understanding is the name cannot be changed until the adoption order is made. I might be wrong but yes, [Mrs Ca] or [DS] will need to discuss with them. Also needs to be carefully planned. We do not want to create further confusion at this time".

 

The father's knowledge of the change and his reaction to it.

83.  According to his Points of Claim the father was informed in September 2015 by a member of the staff at the school attended by E that E had said to her class friends that she had been adopted and that her name had now changed to that of her prospective adopters. In oral evidence the father said that the person who had told him this had been a member of the school support staff, and he also recalled a conversation also in around September 2015 with a parent of another child at the same school as E who said that "Mrs P has your children" and that E had been adopted and was now known as P. The father accepted in evidence that he did know that at that stage E had not actually been adopted.

 

84.  The father appears to have taken no action to question or to protest about what he had learned until he informed the court at the first hearing in the adoption proceedings on 21st April 2016.

 

       The father's claims and the local authority's response.

85.  As stated above, at the first hearing of the then current adoption applications on 21st April 2016 the father had informed the court that the prospective adopters had caused or permitted the children's surnames to be changed from G to the surnames of the prospective adopters (Mr and Mrs P). The father says that he had learned from people at the school attended by the children that they were being known by the surname of Mr and Mrs P. The father has since made clear his outrage at this development. I therefore directed the local authority to provide a position statement to deal with this.

 

86.  The position statement dated 29th April 2016 provided by counsel for the local authority stated as follows:

"18. The names of the children subject to this application have not been changed, so far. Of course if an adoption order is granted then they will receive new surnames.

 19. However, the girls have been placed with their carers for a long time. I am instructed that the children have recently chosen to use the surnames of the prospective adopters. This is a decision they have made for themselves, it is their wish and desire to use a different surname to their birth surname. I understand that this will be distressing for the father.

 20. At school, at the GP, at the dentist etc they remain registered as G. For all official purposes they are registered as G, but in day to day dealings with the girls they asked to be called something else."

 

87.    This was confirmed in the social worker's statement of 8th June 2016 which said that the children had asked to be known at school by the family name of the prospective adopters and that this was a choice made by them without coercion or encouragement of any kind by the local authority or prospective adopters.

 

88.    It is still not clear whether the use of the name of the prospective adopters was made known to the independent reviewing officer.

 

89.    On 26th May 2016, the father filed application notices under Part 18 of the Family Procedure Rules 2010 (one in respect of each child). These were supported by a general form of affidavit confirming a witness statement which had been signed by him dated 9th May 2016 and other materials referred to earlier in this judgment.

 

90.    In his statement, he referred to the local authority as having resorted to apportioning blame for the change in surnames on the children themselves which he described as a disgraceful and unacceptable line of defence.

 

91.  The father also provided a Statement of Case dated 25th May 2016. He claimed that the local authority's unlawful act was a violation of the rights of the children and himself under Article 8 ECHR which gives him and the children the right to respect for their private and family life and provides that there shall be no interference by a public authority with the exercise of such rights except such as is in accordance with the law and is necessary in a democratic society.  I understand the father also to suggest that there was a breach of Article 6 in that the local authority should have applied to the court for leave to change the children's names, and by failing to do so they had deprived him of the opportunity to oppose such an application and deprived the children of the opportunity to be represented by a guardian.

 

92.    The father's Statement of Case, in addition to seeking a committal order and damages, concluded with a request for revocation of the care and placement orders and for return of his daughters to his care. That would have required a separate, further application for permission to apply for revocation of the placement orders, two such previous applications having been refused in 2014.  Moreover, since the request made in the Statement of Case the adoption orders have been made. The possibility of setting aside a properly obtained adoption order is restricted to cases in which there are shown to be highly exceptional and very particular circumstances (Re W (Children), also known as Webster v Norfolk CC [2009] EWCA Civ 59; [2009] 1 FLR 1378).   To avoid doubt I refuse the request for revocation of the care and placement orders.

 

93.              The claims which the father has made on his own behalf and on behalf of each child are brought by him under section 7(1) of the Human Rights Act 1998 which states as follows:

'A person who claims that a public body has acted…in a way which is made unlawful by section 6(1) may: -…(b) rely on the Convention right or rights concerned in any legal proceedings, but only if he is (or would be) a victim of the unlawful act.'

 

94.              Sections 6 (1) and (6) of the Human Rights Act define an unlawful act as an act or failure to act which is incompatible with a Convention right.

 

95.              I decided that the father's claims for damages which had been raised while the adoption proceedings were still underway should be dealt with by me within the adoption proceedings (Re L (Care Proceedings: Human Rights Claims) [2003] EWHC 665 (Fam), [2003] 2 FLR 160; Re (A Child) (Care Proceedings: Human Rights Claims) (Practice Note) [2004] EWCA Civ 54 [2004] 1 WLR 1433, [2004] 1 FLR 944 although I decided that the substantive adoption proceedings should not be held up (or further held up), as the father sought, until determination of his claims for committal or damages.  It was appropriate to direct separate pleadings in the form of Points of Claim and Points of Defence.

 

96.              According to the father's Points of Claim on 20th July 2016 he spoke by telephone to the head teacher of E's school (Mr S) who confirmed that E had changed her surname on her subject books. The father then wrote to Mr S on 16th September 2016, and Mr S wrote in answer on 7th October 2016 as follows:

"I am writing in response to your letter received on 19th September 2016 regarding your daughter E.

I can confirm in writing to you that we did indeed speak on the telephone on the 20th July 2016 regarding your concerns about E. As I explained at the time, E opted to record her surname as P on her school books. Having consulted the local authorities, we were advised that challenging E's desire to use her prospective adopters' surname in this capacity would not be in her best interest. I strongly disagree with your allegation that the school has acted unlawfully by "aiding" E to "commit an unlawful act". At no point during or after E's time at [the school] did any formal documentation or the school's electronic management system record her surname as P."

 

97.              As directed the father provided a Points of Claim document dated 29th July 2016. This largely repeated what he had said before, and made clear his contentions that (i) the local authority had failed in their responsibility as corporate parents to make it clear to Mr and Mrs P that the children's names could not be changed without the written consent of the parents or leave of the court, and (ii) the names had been changed deliberately to damage his application for leave to oppose the making of adoption orders. He also stated his firm belief that it had also been done to cause detriment to any future appeal and any application for post-adoption contact and also to frustrate the criminal injuries claims that he made on behalf of the children. At the hearing on 10th June 2016 the father had also said that the female prospective adopter (Mrs P) who is a teacher at the school attended by E had deliberately changed the children's names to protect her reputation and to make herself look good. He believed that Mr and Mrs P had coerced the children. He submitted that the local authority had trained and approved Mr and Mrs P as prospective adopters and should have made it clear to them that the names should not be changed. He submitted that in those circumstances the local authority as corporate parents were liable for what had been done.

 

98.              The local authority filed a Defence putting the father to proof of his assertions. This repeated what had been said in the position statement provided in April 2016. It was pleaded that the children had chosen to use the surnames of the prospective adopters and that their surnames had not been formally changed. Rather, at times the children had informally adopted the surname of their carers. They had made the decision to use the surname of the prospective adopters for themselves without coercion or encouragement of any kind by the local authority or by the prospective adopters. The father was put to proof of his allegations.

 

99.              Following receipt of the local authority's Defence document the father sent an e-mail to the court dated 19th August 2016:

"Further to my applications for Damages against the Local Authority D Council, I am in receipt of a Points of Defence Statement from Mr H [counsel] which I received this morning.  Mr H [counsel] appears perfectly willing to cover up the wrongdoings and the illegal and unlawful actions of an incompetent local authority that has now been assessed as requiring improvement (Source: - Ofsted report - 23rd May 2016) and whose staff and prospective adopters have now unlawfully breached the conditions of the original Full Care and Placement Orders of 7th August 2013.  The Local Authority have totally failed to support me with discharging my child rearing responsibilities under the UN Convention on the Rights of Persons with Disabilities so that they can be reunified back to my care.  The children were not removed from me, I happened to agree for my two eldest daughters being accommodated under a Section 20 Voluntary agreement in December 2012 after being threatened by the Social Worker Ms… C who said she would get them taken into Police Custody under an EPO and that I would never see them again.  It is the Local Authority who have stopped my contact with the girls after I quite rightly spoke out about the unacceptable care they received over an eight month period and the wilful neglect and physical abuse that they both suffered.  D Council have totally failed to safeguard my daughters and it comes as no surprise that Ofsted have assessed the Local Safeguarding Children's Board as inadequate. and failed my family as a whole.

To be clear, D Council have been responsible for ruining my daughters' lives as follows: -

Allowing them to be wilfully neglected, physically and emotionally abused whilst in their care over an eight month period.

Segregating the children away from their loving father.

Breaching the Data Protection Act.

Segregating the children away from their loving paternal grandparents, wider paternal family members and adults who have offered them stability and, violating my father and brother's Article 8 rights.

Failing to support me in discharging my child rearing responsibilities

Breaching the Full Care and Placement Orders issued on 7th August 2013

Witnesses from the local authority committing perjury by presenting false and inaccurate statements and evidence before the Court

Sending threatening letters to my vulnerable mother making unsubstantiated and false accusations which led to the onset of her suffering a stroke"

The father asked for a substantive hearing of his claims.

 

 

The remedies sought

Damages

100.The father contends that an award of damages should be made under section 8 of the Human Rights Act 1998, which enables the court to grant such remedy as it thinks just and appropriate subject to the provision in section 8 (3) that:

'No award of damages is to be made unless, taking account of all the circumstances of the case, including (a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court) and (b) the consequences of any decision (of that or any other court) in respect of that act, the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour the order in made'.

 

101.          The father referred to several cases each of which I have considered together with other guidance that was provided in Anufrijeva and Another v. Southwark London Borough Council [2003] EWCA Civ 1406, [2004] QB 1124, [2004] 1 FLR 8;  Re C (Breach of Human Rights: Damages) [2007] EWCA Civ 2, [2007] 1 FLR 1957; Re H (A Child: Breach of Convention Rights: Damages) [2014] EWFC 38; and Re T (Medway Council v. M & T) [2015] EWFC B164.

 

102.          As indicated above the father has sought compensation for himself and the children amounting to £65,000.

 

103.          At start of the resumed hearing on 3rd January 2017 father said that he also sought exemplary damages: as I understand it he bases this upon his accusation that the local authority not only acted unlawfully but did so deliberately and in bad faith.

 

104.          The father says that he has been caused great distress by the knowledge that the children's surnames had been changed, although it is not easy to distinguish that distress from the greater distress he has experienced as a result of separation from his children. In addition he says that the change of name damaged his prospects of obtaining leave under section 47 of the 2002 Act to oppose the making of adoption order and has also affected his prospects of obtaining leave (under section 51A) to apply for post-adoption contact.

 

The claim on behalf of the children

105.          The nature and extent of any damage to the children is less easy to identify. In any event, the period during which any measurable damage was sustained ended with the making of the adoption orders whereupon their use of the prospective adopters' surname (which is said to be the surname they wish to use) will be confirmed.

 

106.          There has also been an important procedural precondition to that part of the damages claim which the father advances on behalf of the children (as distinct from the claim on behalf of himself). The children are protected parties and thus before the claim on their behalf could proceed any further it was necessary for them to have a litigation friend (see CPR rules 21.2 and 21.3).  For a person to become a litigation friend that person must file a certificate of suitability (CPR rule 21.5) which includes an undertaking to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings. The requirement for a litigation friend was explained to the father. During the hearing on 10th June 2016 the father introduced a friend whom he said that he proposed as a suitable litigation friend. However it was unclear that she was in a position to give the required undertaking and that person has not been put forward again and she has not provided an undertaking.

 

107.          The hearing of the damages claim was listed for 20th October 2016 with a day allowed. At that hearing it was clear that the case was not ready for trial and further directions were necessary.  I ordered that the claims for damages on behalf of the children should be stayed, and that they should be dismissed unless by 7th November 29016 a suitable litigation friend for the children had been appointed. The trial was re-listed for 10th November 2016.

 

108.          Later, in an e-mail to the court on 24th October 2016 the father wrote:

"With regards to the Litigation Friend, I will now be making an application myself as R and E's father (as I know my daughters better than anyone else particularly having seen them locally recently) to be the Litigation Friend as I am suitably qualified being their Father, a Home Office qualified Crime Prevention Advisor, an Advisor on Children's Safeguarding and Institutional Child Abuse having attended and completed a number of ongoing professional development training courses in these areas."

 

109.          The court responded:

"Your intention to apply to be the litigation friend for the children in respect of the claims you have issued in their names is also noted. You must file and serve a certificate of suitability that includes an undertaking to pay any costs which the claimant child may be ordered to pay in these proceedings. The certificate should be in Form N235 which can be found on: hmctsformfinder.justice.gov.uk "

 

110.          The certificate and undertaking were not provided. In the absence of any suitable litigation friend the claims on behalf of the children are dismissed in accordance with the order of 20th October 2016.

 

The resumed hearing on 10th November 2016.

111.          The hearing on 10th November 2016 was also limited because the social worker (Ms C) was unwell and unable to attend.  Much of this hearing was taken up with the witness summonses which the father had issued and the local authority's applications to discharge the witness summons against the Chief Executive and others. I gave rulings having had regard to the principles set out in the notes in the "White Book" under rule 34.3 of the CPR, to the need for proportionality and to further guidance in Phipson on Evidence (18th Edition) page [227] para 8-22.   A particular consideration was that although the father had caused the summonses to be issued, the people concerned were (so far as I could tell) unlikely to give evidence which would be supportive of his case; and moreover, in respect of at least some of his proposed witnesses, his real wish was to cross-examine them.  Having regard to CPR 32.2(3) and to the new CPR 3.1A, which applies to any proceedings where at least one party is unrepresented, I tried to get the father to explain the matters about which he hoped the witnesses might give evidence. Whilst it may not be appropriate in a case concerning children and involving unrepresented parties to take too technical an approach to witness summonses when sought, I had to consider carefully whether the questioning of these witnesses by the father was likely to provide worthwhile results – even if the court itself adopted an inquisitorial role.  My concern that it might not be productive was in part based on a sense that the father has seen this case as part of a wider attempt to pursue his extensive grievances against the local authority.

 

112.          In the event more directions were given by me and the hearing was listed to resume with a revised time estimate of 2 days on 3rd and 4th January 2017.

 

The resumed hearing on 3rd and 4th January 2017.

The father's evidence

113.          The father gave evidence, to some extent covering the same ground as in the earlier proceedings concerning the children and in the injunction proceedings. He made clear his strong antagonism towards the local authority, his grievance at the "forced adoption" of the children and his beliefs that the prospective adopters had been behind the children's wish to change their surname and that there had been a conspiracy by the local authority to cover up criminality.

 

The fathers' witness

Mr R G

114.          The father's brother made a statement in which he confirmed the distress caused to the father and he gave oral evidence emphatically repeating points he had previously made in earlier proceedings about forced adoption and a dysfunctional court system. He said that he could not wait for the whole case to be quashed.

 

115.          After his evidence after the conclusion of the hearing the court received an e-mail from Mr R G dated 4th January 2017:

"To The Court Manager

As a Witness to my [Brother M's] Court Proceedings, I would like to share this email from the Department for Education with Judge [xxxx].

I believe the email to be sent to me within as State of Purdah.

Yours Sincerely

R G"

The attached email from the Department for Education to Mr R G dated 21st April 2015 summarised the legal and procedural position relating to the making of placement orders, dispensing with parental consent and the ability of parents to apply to revoke a placement order.

 

The local authority's witnesses

Ms C

116.          Ms C was the allocated social worker for the children from November 2011. By a statement dated 17th March 2015 made in connection with the injunction proceedings she described the impact of the father's behaviour on the children, in particular following the incident of 17h December 2014. In this statement she said that there had been increasing concerns about the father's behaviour in respect of the children, some of which were dealt with by the first injunction which was made in November 2014.

 

117.      Ms C described the incident on 17th December 2014.  Mrs P, prospective adopter of the children, contacted the local authority to report that the father had attempted to snatch E from the porch of their house that morning. Mrs P was getting the car out of the garage to take E to school. The father ran onto the drive while Mrs P was still in the car and he grabbed E and ran away towards his car parked nearby. Mrs P ran after them screaming. Fortunately two men who knew the family were passing, saw the distress of Mrs P and took E from the father. She took E into the house. The police were called and arrested the father. In his car the police found he had a length of rope and some children's toys. There was also a report that the father's brother was seen nearby. E was very distressed, and the incident continued to affect her. She regressed into the angry behaviour she had shown when younger. She started to lock the doors of the house when inside and frequently checked to make sure they were locked and she was unable to fall asleep without Mr or Mrs P in the room. She would not stay in her bedroom alone saying that she was frightened someone was going to take her. She needed a lot of reassurance. She told Mrs P that she has a dream about a man turning up and taking her away and doing nasty things. R was not present at the time of the incident but was affected by the behaviour and anxiety of E. She could not walk to school with her friends as she would like. The prospective adopters reported the anxiety of the children was such that they could not be left with any friends or family. Mr P described the heightened vigilance that had been required and his suspicions that they had been the subject of covert surveillance before the incident. After that incident Christmas cards had been received from the father and his family at the home of Mr and Mrs P, despite advice given by the local authority to the father not to send post directly to the children or their carers.  Ms C confirmed and amplified this description of the children's reactions in her oral evidence. She described E as suffering nightmares and being really upset and frightened for months.

 

118.          In oral evidence Ms C referred also to earlier occasions when the children were upset by the unexpected appearance of the father in December 2013 at the school fair and at the sports day in summer 2014, for neither of which had the children been prepared.

 

119.          Ms C made a further statement dated 8th June 2016 in response to the father's application for leave to oppose the making of the adoption orders. In this she referred to the father's assertion at court on 21st April 2016 that the children's surnames had been unlawfully changed without his consent. She said this:

"The children's names have not been legally changed. The children remain registered with their schools and General Practitioner as R and E G. The children are still known on the passports as R and E G. The Local Authority would not agree to any formal change of name prior to the adoption of the children.

However, the children, who have been placed with their prospective adopters since May 2014, have asked to be known at school by the family name of the prospective adopters. This is a choice made by the children without coercion or encouragement of any kind by the Local Authority or the prospective adopters. Whilst the Local Authority accepts that this is distressing for the father, it must be considered that the children have known for well over a year that the current carers wish to adopt them and that this is supported by the Local Authority.

The children wish to be adopted by their current carers and are very clear that they see themselves as full and permanent members of the family. It is unsurprising that the children of such young ages are impatient with the delay in this being achieved and that they seek to be known to their peers as permanent members of their family. The children's decisions to change their names evidences their desire for the adoption to take place."

 

120.          In oral evidence Ms C denied that she had suggested that the children should stop using their surnames and she confirmed that Mr and Mrs P had not suggested it. She said that the children knew what was going on and what they wanted to happen. She said she was sure that the idea had come from R in advance of her starting at her new school in January 2015.

 

121.          In cross-examination by the father Ms C denied various allegations that were made against her by him and she denied that there had been a conspiracy to keep confidential documents from him. She also denied his suggestion that she had not kept sufficient records.

 

Mrs Ca

122.          Mrs Ca, the adoption social worker, gave oral evidence confirming her witness statement she said that she had visited the children at the home of the prospective adopters on 2nd and 23rd December 2014. The visit on 2nd December was just after the confirmation that the placement had become an approved placement for adoption and the visit on 23rd December followed the attempted abduction on 17th December.

 

123.          Mrs Ca said that she had no record within the notes of those meetings of discussion about the children's surnames. She recalled it had been discussed but there were more pressing matters.

 

124.          Mrs Ca denied the suggestion that there had been any conspiracy. She said R was a bright, articulate young person who wanted to change her name. Following the incident on 17th December E was traumatised for some months and could not be left on her own. R was angry with the father. Mrs Ca described R as having a sense of right and wrong and as feeling that it was wrong of him to have frightened E. At that time the prospective adopters were themselves careful not to frighten her and so had tried to present the father to them in as good a light as possible but it was difficult to do so.

 

125.          In answer to questions by the father Mrs Ca said that she was aware of the legal position and the surname had not been changed in any records on the local authority's system. R who was an intelligent child wanted to be known as P and Mrs Ca regarded it as obviously in her best interests to respect that wish. R was aware that it was not a legal name change. Mrs Ca confirmed that she had advised the prospective adopters that R's  name could not formally be changed before adoption but that she could be "known as" whatever she (R) chose.

 

The witnesses called as a result of the requests for witness summonses

Mrs A

126.          Mrs A, who had been a local authority team manager for at least part of the relevant time, was required by the father to attend to give evidence. I was informed that she had been reluctant to come to court because of the father's earlier conduct towards her about which she had given evidence in the injunction proceedings.

 

127.          Mrs A answered questions put to her by the father, many of which related to the preceding care proceedings. As far as she could recall she had not been the supervisor of Ms C in December 2014 when the question of allowing the children to use the surname of the prospective adopters arose. She thought that her e-mail of 23rd December 2014 was her only written contribution. However, she said that although she did not recall discussing the matter with Ms C it was likely that she did so. She had had no involvement thereafter.

 

128.          She was asked about the permanence reports which had been disclosed in the context of the father's application for leave to oppose the making of adoption orders. These had been redacted to remove all surnames, and this had not been done to conceal that there had been a change of surnames. She denied the suggestion that there had been any conspiracy to do so and pointed out that in any event the father knew the names of the prospective adopters and their address from which the father had attempted to remove E.

 

Mr S

129.          The letter (at paragraph 96 above) dated 7th October 2016 to the father from Mr S, the head teacher of the school attended by E did not satisfy the father and so he issued a witness summons requiring the attendance of Mr S.  At the subsequent hearing on 14th November 2016, in an attempt to avoid the need for the head teacher of a school to attend court, I ascertained from the father the questions he would want to put to Mr S and directed that the solicitor for the local authority should write to Mr S seeking answers to those questions.

 

130.          Mr S answered in some detail by a further letter dated 16th December 2016. In this he explained that E was keen to write P on her replacement school book  towards the end of her final year at the school (April 2016). As E had already written this of her own accord the school decided to seek advice from Children's Services and Mr S himself contacted the social worker Ms C.  Ms C advised him that although they could insist that E only used her legal surname of G, it was not in the best interests of E to challenge her on this sensitive issue. Accordingly, the school decided that they would allow E to retain the name as written by her and they offered to provide her with the school book label to ensure that she was not to feel inferior to her classmates. Mr S wrote that this decision was taken in the best interests of the child and in accordance with advice received from Children's Services. In the meantime, and even since E left the school, all official school documents and electronic records including the register and school reports remained unchanged, giving  her original surname. Mr S wrote that:

"In summary, my answer to your question is that E has never been 'known' as P or indeed even referred to as P during her time at [name] School."

 

131.          Mr S wrote that although E had referred to herself on a school book as P and she may have told her peers that she was going to be adopted and that P was soon to be her surname, he had found no evidence to suggest that she was 'known' as P. It is not common to address children by their surnames unless there is more than one child sharing the same first name. This was not the case with E. He repeated that all official documentation retained her surname of G. Mr S attached copies of the records on the school systems showing that she was referred to only as G.

 

132.          The father still required Mr S's attendance at court to give oral evidence. Mr S duly attended on 4th January 2017. He confirmed what he had written in his 2 letters. He explained that in preparation for the school year starting in September 2015 labels were prepared for the children's books and those prepared for E had the name G on them. When the books ran out and new labels were prepared in April 2016 it appeared that that E had written the name P on her label. Mr S had not discussed it with Mrs P who was a member of staff: Mr S explained that he had little to do with Mrs P as she had been on adoption leave and she had also taken unpaid leave pending the adoption. Mr S also said that in fact he had not contacted the social worker specifically about the change of name by E, but rather had raised it in the course of his next conversation with Ms C. There had been no approach to the school by either Mr and Mrs P or by any social worker to change the name. He wanted to get confirmation of the legal position, and having sought clarification he did not take it further. He repeated that E was referred to in every register as G and he had never heard anyone refer to the children as P.

 

Other witnesses required by the father who did not attend court.

Mrs W

133.          The father had issued a witness summons addressed to Mrs W, the Chief Executive of the local authority. The local authority applied for the witness summons to be discharged and after hearing argument I granted the application for discharge as it appeared that there was no relevant evidence to be given by the Chief Executive who had no involvement at all in the circumstances surrounding the change of the children's surname.  The local authority did not pursue their separate argument that no "conduct money" had been tendered to Mrs W as is required by the rules,  and I made clear that in the circumstances the discharge of the witness summons was not in any way based on that point.

 

Mrs Pr

134.          Mrs Pr was the head of the two schools attended by R at the relevant time. The father wrote to her in July 2016 and again in September 2016 contending that the school had aided an unlawful act by permitting R to change her surname unlawfully, causing him considerable distress, and contending that the school had acted in violation of both R's and his own Article 8 ECHR rights, the later letter being written as a letter before judicial review proceedings.

 

135.          It appears that Mrs Pr did not respond to the father's letters, although on the second day of the resumed hearing in January 2017 she sent an e-mail addressed to counsel for the local authority in which she said that she had been head of the school attended by R from September to December 2014 and, later, in September 2015 head of the school to which R had moved in January 2015. Mrs Pr confirmed that:

 (i) She had never given advice to Mr and Mrs P, when head of either school, regarding R's surname; and

 (ii)  R was recorded on the database system as having the legal surname of G. This was not changed until the school had confirmation of her adoption in September 2016 when her name was amended to P.

 

136.          The court was also informed that the acting head of the school to which R moved in January 2015 had confirmed that R had always been registered at the school as G with a note "Prefers to be known as P".

 

137.          Mrs Pr was not among those against whom the father had sought a witness summons in October 2016; but at the start of the second day of the resumed hearing in January 2017 he said that he did wish her to be required to attend. By that stage of proceedings the issue of a witness summons would have required permission of the court (under CPR 34.3 (2)). The father was unable to satisfy me of the necessity for Mrs Pr to be required to attend and I refused permission.

 

Mr P

138.          The father also made a late request to call Mr P, the children's adoptive father. There was no statement by him and by that stage there was no evidence calling into question what had been said in the contemporaneous e-mails written in December 2014 or by the social workers who had seen the children at the time and who had confirmed that the children's wish to change their names had derived from the children themselves without outside influence from any source.

 

139.          Within the documents disclosed by the local authority is an e-mail sent by Mr P in September 2016 to Mrs Ca after she had informed him of the father's claim for damages. In this Mr P wrote to Mrs Ca in response to her e-mail in which she had summarised her recollection of events:

"Yes your recollection is correct, but I can elaborate a little.

The subject of name change first arose shortly after [Ms C] had visited the girls to tell them they were going to be adopted by [Mrs P] and me (July 2014). One afternoon when [my wife] and E were out, R asked what her name would be after adoption. I said that I realised she might not want to change her name, but explained it would be very helpful for things such as passports if her surname at least included P (as in P-G or G-P) and she appeared to be happy with that. However a few weeks later during the school summer holidays, one day while I was at work, [Mrs P] mailed me a photo of the agenda for a "house meeting" that the girls "called"!  One of the items was "What our names will be". That evening they both made it very clear they were eager for their surnames to be just "P". Unfortunately our search for a copy of the photo has been unsuccessful

The remainder is as you have recalled. After R left [name of school] she started at [..] Middle School in September 2014. The adoption panel occurred in November 2014, and R was offered a place at [next school] on the same day as the post panel meeting, which was the penultimate day of the school term (December 2014). R was keen to change her name to P before starting at [next school] to avoid having to do so while she was there. This seemed sensible on both emotional and practical grounds. We investigated whether this was possible and you [Mrs Ca] advised that although formerly her name couldn't be changed before adoption, she could be "known as" whatever she chose. This was the option that was taken when R started at [next school] in January 2015. In fact, on official documents such as the school register, I understand that her surname has been recorded as G at least until we supplied copies of the adoption order issued by the court earlier this month, and maybe even still today.

E wanted to do the same as her sister, and as far as I recall, she became known as E P at the start of her final year at [name of school] in September 2015. However, her name was not changed formally and I don't believe official documents would have been altered. E has now started at [next school], where she is known as E P. Again however, she is recorded as E G on formal documents. That is the name that appears on the sticker of her school diary for example. Of course this may change now that we have supplied copies of the adoption order to the school."

 

            The duties of the local authority

140.          I accept that the circumstances in which the possibility of allowing the children to be known by the surname of their prospective adopters were as described by the local authority's witnesses and as shown by the contemporaneous e-mails of December 2014 and the later email from Mr P to Mrs Ca in the September 2016.

 

141.          It is clear on the available evidence that the local authority took a pragmatic view of the situation presented to them when informed of the children's wish to be known by the surname of their prospective adopters; and it is clear that the local authority advised the prospective adopters and the school attended by E in a way that was perceived to be in the best interests of the children and respectful of their wishes.

 

142.          It is clear also that the local authority correctly advised that there could be no formal change of name and that there was in fact no alteration of the children's surnames on any official records at school or elsewhere at any time before the making of the adoption orders.

 

143.          At most the local authority sanctioned the informal use by the children of the surname of the prospective adopters by advising that they could be "known as" P. As emphasised by the witnesses for the local authority the names were not otherwise changed.

 

144.          Section 28 of the Adoption and Children Act 2002 provides that a person may not cause the child to be "known by" a new surname. The section does not distinguish between a child being known by a new surname formally and informally, and therefore it does not appear that the prohibition applies only to a change of surname in official records. If that is correct, causing a child to be known by another surname, albeit "informally" or "unofficially" would be a contravention of section 28.

 

145.          At an early stage of these proceedings it was argued on behalf of the local authority that they did not "cause" the use of the other surname because on the available evidence (i) the local authority did no more than acquiesce in the wish of the children to use the surname of their prospective adopters rather than their original surname, and (ii) no steps were taken to implement or record the change of surname in any formal way.  

 

146.          However, when considering whether a person has "caused" something to happen it is not always necessary for it to be shown that there has been a deliberate act rather than an omission. Moreover, in the circumstances of this case section 28 of the Adoption and Children Act 2002 should be interpreted in such a way as to give effect to ECHR rights (section 3, Human Rights Act 1998).

 

147.          Thus, the circumstances of this case did require more positive action by the local authority to avoid a breach of section 28 and of the underlying Convention rights, even though the practical exercise of the father's right to family life had been curtailed by the making of placement orders, by the suspension of contact between the children and the father, and then by the implementation of the placement orders by the approval of Mr and Mrs P as prospective adopters.

 

148.          The local authority therefore were obliged not only to consider the request to allow the children to be known by the surname of their prospective adopters, as the children wished, but also obliged either to advise the prospective adopters not to let the children use the prospective adopters' surname in any way and advise them to encourage the children to wait until adoption orders were made; or (in anticipation of protracted adoption proceedings) to apply to the court on behalf of the prospective adopters for leave for the children to be known by the prospective adopters' surnames. Ultimately, in the absence of parental agreement, it was for a court, not for the local authority as the responsible adoption agency, to decide whether or not the children could be known by another surname before the making of adoption orders. An application to the court would have allowed for assessment of the advantages and disadvantages of the proposal, assessment of the views and interests of the children and assessment of the objections of the father.

 

149.          In the difficult and unusual circumstances of this case the continuing positive obligations on the part of the local authority were increased, not reduced by, their knowledge of the determined efforts of the father to prevent adoption and to reverse the placement and care orders. Although it appears that the local authority social workers considered that allowing a child to be known by another surname without changing official records was permissible, it is at least possible also that they did not consider informing the father at the time so as to avoid the inevitable and lengthy dispute that was likely to follow. In any event, the obligations of the local authority were not reduced also by the strong likelihood that ultimately adoption orders would be granted whereupon the surnames would be lawfully changed.

 

150.          I therefore consider that the local authority had a positive duty to do more than was done in this case (albeit in the best interests of the children) because:

(a)      the restrictions under section 28 applied;

(b)      the father still had parental responsibility for the children; and

(c)      the relevant Article 8 rights to respect for family life, even if weakened, were not extinguished and so should have only been interfered with if justified by necessity and proportionality.

 

 

Conclusions

151.          On 27th January 2017 I informed the parties of my conclusions which I set out below:

 

(i)           There will be a declaration that the local authority acted unlawfully in allowing the children's surnames to be changed, albeit for limited purposes, before the making of the adoption orders. In the circumstances of this case the local authority should either have prevented the change of name when it was suggested or should have sought the consent of the parents to the proposal or leave of the court. In permitting the children to be known by the surname of their prospective adopters before the making of the adoption orders the local authority acted contrary to section 28 of the Adoption and Children Act 2002 and thereby infringed the rights of the father under Article 8 ECHR.

 

(ii)        Such a declaration is sufficient remedy. I am not satisfied that any award of damages is necessary to afford just satisfaction for the following reasons:

(a)         I accept the evidence of the local authority as to how and why they came to allow the use by the children of the prospective adopters' surname and the limited extent to which it was permitted.

(b)         I reject the father's contentions that the change of name was in any way allowed or encouraged in order to frustrate his anticipated applications for leave to oppose the making of adoption orders. I also reject his contention that the change of surname impaired his prospects of obtaining leave to oppose the making of adoption orders. His prospects of obtaining leave to oppose were in any event negligible because he was unable to produce any relevant or sufficiently cogent changes of circumstances to meet the first stage of the requirements of section 47.  I am quite satisfied that the father would have been refused leave to oppose the making of adoption orders even if the possibility of changing the children's names had never been raised or acted on.

(c)         It was common ground that the children are intelligent and articulate, in particular R who was between 9 and 10 years old at the relevant time.  I reject the father's contention that the children's wish to change their name was influenced in any way by the prospective adopters or by the local authority. I do not accept his assertion that Mr P "went out of his way" to change the children's names.  In his oral evidence the father was wholly unable to accept that the children had decided for themselves that they did not want to be called G or that the reasons for their decision lay in his own actions and in their wish to distance themselves from him. In my judgment, the local authority and the prospective adopters were simply responding to the children's wish to change their name so as to be fully part of the family of the prospective adopters. The children's wishes were increased by the extended delay in the finalisation of the adoption process, for which the father was responsible by his repeated unsuccessful applications to the courts. Their wishes were increased further by the impact on the children of the father's wholly unacceptable and frightening actions on 17th December 2014.  As submitted on behalf of the local authority the incident of 17th December 2014 'changed the landscape'. I am satisfied by the evidence the court has read and heard that the father became a source of worry and stress for both children. But for the delay and the events of 17th December 2014 the children might have been persuaded to continue to use their original surname at least for the time being.

(d)         At most the omissions by the local authority deprived the father of the opportunity to contest an application by the local authority to the court to allow the children to be known by the name of their prospective adopters as they wished.

(e)         Had the local authority applied to the court, as they should have done, the court would have considered the nature and extent of the children's relationships with the father and with the prospective adopters. With the passage of time the children had become fully integrated into the prospective adopters' family life and almost wholly separated from their birth family.  In the circumstances there was a real possibility that the strength of the children's wishes to be included in the family of their prospective adopted and to use their surname would have been acknowledged by the court, and accordingly there was a real possibility that the informal use of the surname of the prospective adopters would have been permitted until the completion of the adoption proceedings, even though the court might have decided that the father's surname should be preserved for formal purposes – as in fact happened.

(f)          The children's surname was in fact later lawfully changed when the adoption orders were made. Those orders would have been made much earlier but for the father's actions which resulted in the lengthy interval between the making of the placement orders and the adoption orders, and more particularly the delay between 1st December 2014 when the prospective adopters could first have applied for adoption orders and 2nd September 2016 when the orders were made. The prospective adopters were unwilling to initiate their applications for adoption orders until they were protected by the injunctions (the making of which was opposed by the father and his brother). The father's exercise of his right to seek leave to oppose the making of adoption orders and his applications for permission to appeal as far as the Supreme Court then delayed the making of final orders well beyond the target for completion of an adoption application of 20 weeks

(g)         There is nothing to suggest that there was any adverse impact on the children resulting from the earlier, informal change of surname.

(h)         The father delayed between the time when he first learned (in September 2015) that the children were known, or might be known, by the prospective adopters' surname and April 2016 when he first raised any concern or complaint. He did not take his concern up with the local authority at the first reasonable opportunity.  He waited until after the start of the adoption proceedings, and he then brought it to the attention of the court without having first raised it with the local authority in any way.  His explanation for the delay in making any enquiry or protest, that he was preoccupied with other aspects of the proceedings, is unconvincing and that delay calls into question the sincerity of his outrage at the actions of the local authority.

 

(iii)      In any event the amounts claimed by the father are wholly disproportionate.

 

(iv)      I confirm that the father's claims for damages on behalf of the children are dismissed because no litigation friend has been appointed.

 

(v)         In addition, I reject the father's other numerous and wide-ranging contentions that the local authority and their officers acted in bad faith, or were guilty of conspiracy to pervert the course of justice or to conceal criminality, or were guilty of perjury, contempt of court, institutional abuse and disability hate crimes. All of these allegations are wholly unfounded.

 

(vi)      To avoid doubt, as indicated above, I also refuse his request to revoke or set aside the care orders and placement orders which have, in any event been overtaken by the adoption orders. There is no properly arguable basis upon which any such step could properly be taken.

 

Further consequential directions

152.          On 27th January 2017 when I informed the parties of my decisions the father said that he had made complaints about Mrs Ca, Mrs A and Ms C to the Health and Care Professionals Council and that he was asking that authority for an interim order to stop those individuals from practising.  The father referred me to a summary of a decision of Judge Mark Horton for which I have since found the full report (Re A, B, C, D & E (Final Hearing) [2015] EWFC B186 (18 November 2015)). The father asked me adopt the course taken in that case.  He invited me to send my judgment to the HCPC, and also to OFSTED and to the local authority's Director of Children's Services. I decline to do so. I do not consider there is any justification for taking such a step. There is no similarity with the case to which I was referred.  I assume that the Director of Children's Services will in fact be shown a copy of this judgment.  If, however any of the individuals against whom complaints have been made wish or need to provide the HCPC, or to provide any representative acting for them in connection with complaints made by the father, with a copy of this judgment they may do so; and if the HCPC need a copy of this judgment it may be provided on written request to the court (which should be marked for my attention and referred to me).

 

153.          The father has applied for an order permitting the judgment in these proceedings to be published.  It is a judgment of the Family Court falling within paragraph 18 of the Practice Guidance of 16th January 2014. I will therefore submit a redacted version of this judgment to BAILII. I have carefully considered the father's repeated requests for the local authority to be identified by name in the redacted version to be submitted for publication.  The Practice Guidance (paragraph 20) provides that public authorities should be named in the judgment approved for publication unless there are compelling reasons why they should not be so named.  In this case I have decided that I should refuse to name the local authority in the version of the judgment to be submitted for publication for the following reasons: (i) First and foremost, to name the local authority would increase the risk of identification and location of the children and of the adopters, even if the judgment did not disclose their names and whereabouts. If that risk became a reality it would jeopardise the security and privacy of the placement to the detriment of the children. (ii) The criticisms made within this judgment of the local authority are limited (and far more limited than the sometimes extreme accusations made by the father and intemperate remarks of his brother).  Such limited criticisms do not justify the public exposure which the father clearly seeks. (iii) The father (with his brother) is likely to try to use the findings within this judgment in the furtherance of his relentless and disproportionate campaign, by litigation and otherwise, against the local authority and individual employees of the local authority. For essentially the same reasons I will not allow identification within the published judgment of the local authority's social workers and other employees or of their legal representatives.

 

154.          Meanwhile, the judgment in unredacted form is now to be sent to the parties and legal representatives. I repeat that the conditions set out in paragraph 3 of the judgment (above) continue to apply. No copy of, or extract from, the unredacted judgment should be released or disclosed to any third party without express permission of the court.

 

155.          Any applications for an order for costs should be sent in writing to the court and to the party against whom costs are sought within 7 days of receipt of this judgment. The party or parties against whom costs have been sought should respond within 7 days of notification of the request. Any such request and response should give brief reasons for the order sought. Unless otherwise directed I will deal with any such applications on consideration of the documents without requiring a further hearing.

 

156.          The order reflecting the decisions made within this judgment will not be drawn until after determination of any applications for costs. Accordingly I confirm that the time for any appeal will not start to run until after that order has been perfected.

 

Development since the hearing.

157.          The hearing concluded on 4th January 2017 and I reserved judgment.

 

158.          On 9th January 2017 a Detective Constable of D Police attended court seeking details of the proceedings. This officer was referred to me and she informed me that the father had approached a neighbouring Constabulary to investigate 3 social workers who had given evidence in these proceedings and whom the father alleged had committed perjury. The neighbouring Constabulary had referred the request to D Police and the Detective Constable had therefore come to the court to seek information about the proceedings. I explained to her that I had completed the hearing in the previous week and reserved judgment and would consider disclosure of the judgment to D Police. I now invite submissions from the parties as to whether disclosure to the Police and (if requested) to the CPS should be permitted subject to appropriate conditions.

 

159.          The court has also received a further e-mail from the father dated 30th January 2017 as follows:

 "Dear Sirs

Further to the Court hearing held last week on Friday 27th January 2017, I made mention of my claim against the Local Authority for Costs/Expenses.  I refer you to the Court Order dated 10th November 2016 Paragraph 6 which reads "Costs in the case.  The application by Mr M G for payment of his costs and expenses (including an interim payment) is adjourned until determination of his claim in these proceedings.  It is recorded that his application for costs may include any costs arising out of late compliance against the local authority with directions for the filing and service of statements of evidence and for disclosure."

My Claim for Costs/Expenses is for the amount of £5,000 and I would appreciate either an immediate partial or interim payment from the Local Authority to my bank account  [sort code and account number given].

The claim is to cover my time and travelling to the Court of Appeal and the Supreme Court in London, the failure of the Local Authority to disclose their statements and evidence for disclosure by Orders of the Court, for the time and administration expenses that I have incurred in preparing a number of bundles and supplementary bundles, initiating research measures during the 2 day public Trial on 3rd and 4th January 2017 and for the attendance at Court on a total of 4 occasions recently.  As the Court will be aware, I attended for a 1 day trial date on 10th November 2016 when the main witness Ms C for the Local Authority was not able to attend and the Barrister attempted to immediately withdraw Ms C as the main witness after being given a copy of the Supplementary Bundle I had prepared.

I look forward to the Court's decision in respect of my claim for Costs/Expenses against the Local Authority D Council who lost the case on Friday 27th January 2017 following the ruling.

Thank you and Regards"

 

160.          I ask the local authority to respond to this application by the father within 7 days and I will then deal with it at the same time as considering any other applications for costs.

 

 

 

 

 

                                                                                    16th February 2017.