England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT AT CHELMSFORD
AND IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

		3 July 2020

3 JULY 2020

HIS HONOUR JUDGE LEWIS:

1. These proceedings relate to C, who is five years old.
2. C's maternal grandmother, A1, and step-grandfather, A2, seek an adoption order. C has lived with them for her entire life. Since November 2019, there has been a child arrangements order in place confirming this.
3. The application is made with the active agreement and support of C's parents, M and F, both of whom love their daughter very much.
4. The application also has the support of the wider paternal family, the local authority, C's GP and her children's guardian. The local authority adoption social worker has confirmed that C's school is also supportive.
5. The first hearing in this case was on 23 April 2020, attended by the applicants, both parents, the guardian, the social worker and C's solicitor. I joined the father as a party. It was apparent that both parents supported the application, but nevertheless I declined to make an adoption order at that stage. Whilst it was clear that the best thing for C would be to remain in the applicants' long-term care, further evidence was needed from the family and professionals. I wanted to have a better understanding of why a Special Guardianship Order (SGO) had been discounted. I also wanted more thought given to what adoption might mean for C later in her life, as an adult, and the effect that any orders might have on her sense of identity and future family relationships. I felt that the parents also needed to be given a further opportunity to get their own legal advice.
6. This judgment is given following a second hearing, attended by the same people as before. I heard mostly from the family members. What struck me was the articulate, engaged and considered way in which each of them explained their position and reflected on the issues that I had raised. It was not just what they said, but the way in which they said it. I got a real sense that this application was being made only after extensive family discussion, including with the wider family, and with the genuine belief of all present that adoption is in the best interests of C.
7. I have had the benefit of reading a statement of facts from the applicants, and a supplementary witness statement. M has provided a statement. The local authority has produced its Annex A report, and an addendum. The guardian has produced a final analysis and an addendum. I have also seen a detailed letter from the GP specifically about these proceedings.
8. I have also had the benefit in this case of the professional views of two experienced and respected social workers – one from the local authority, and the other being C's guardian from Cafcass.

The Law

9. The application is made under the Adoption and Children Act 2002 ("the Act").
10. In terms of the formalities, this application is made by a couple pursuant to s.50(1). At least one of the couple is domiciled in a part of the British Islands, and both have been habitually resident in a part of the British Islands for not less than a year (s.49(2) and (3)). C has lived with the applicants for more than three years (s.42).
11. C's welfare throughout her life is the paramount consideration of the court, which must have regard to the matters set out in the welfare checklist in s.1(4) of the Act. The court is required to consider the whole range of powers available (whether under the Act or the Children Act 1989) and must not make any order under the Act unless it considers that making the order would be better for the child than not doing so: s.1(5).
12. An adoption order may not be made unless one of the three conditions in s.47 is met. In this case, only the first condition applies, namely that the parents have given their consent. s.52(5) provides that consent means consent given unconditionally and with full understanding of what is involved. FPR 14.10 requires consent to the making of an adoption order to be in the form referred to in FPR PD 5A, or a form to like effect.
13. The approach to be taken in adoption applications by relatives was set out in some detail by the Court of Appeal in Re S (a child) [2007] EWCA Civ 54. The court considered the history of such applications and the problems that arise out of them. It was noted that the White Paper published in respect of the Act had made clear that special guardianship was introduced at least in part to deal with the potential problems arising from the use of adoption in the case of placements within the wider family. The case requires reading in full. There are four points or passages of particular note:

a. There is nothing in the statutory provisions themselves which limits the making of an SGO or an adoption order to any given set of circumstances… there is no presumption contained within the Act that a SGO is preferable to an adoption order in any particular category of case. Each case must be decided on its particular facts; and each case will involve the careful application of a judicial discretion to those facts [47(ii)];

b. The key question to be asked in every case in which the question of adoption as opposed to special guardianship arises will be: which order will better serve the welfare of this particular child? [47(iii)];

c. "Where a child is adopted by a member of his wider family, the familial relationships are inevitably changed. This is frequently referred to as the "skewing" or "distorting" effect of adoption, and is a factor which the court must take into account when considering whether or not to make an adoption order in such a case. This is not least because the checklist under s.1 of the Act requires it to do so… However, the weight to be given to this factor will inevitably depend on the facts of the particular case, and it will be only one factor in the overall welfare equation. As will be seen, the three appeals before this court illustrate the different weight to be placed on this factor in different circumstances, and that in some it may be of only marginal importance." [51 and 52]; and

d. There are fundamental differences in status between adopted children and those subject to special guardianship orders, and equally fundamental differences between the status and powers of adopters and special guardians. These need to be borne in mind when the court is applying the welfare checklists under the 1989 Act and the Act [46].

14. At around the same time, the Court of Appeal gave judgment in the case of Re AJ (Child) [2007] EWCA Civ 55. The court annexed a note prepared by counsel in that case setting out some of the key differences between special guardianship and adoption. The differences of particular relevance to this case include:

a. Where an SGO is in place, the child retains the same legal relationship with his or her family whereas with a family adoption, the child's existing relative status changes.

b. The making of an adoption order vests "parenthood" in the adopters and extinguishes any parental responsibility of others, whereas under an SGO any parent with parental responsibility retains it, and any parent without parental responsibility can apply to obtain it.

c. An adoption order is permanent and the new relationship lifelong, whereas an SGO ceases upon the child turning 18, and so the carers legal relationship as parent is time limited.

d. There is no statutory provision for revocation of an adoption order, and such an order is only likely to be set aside in wholly exceptional circumstances, whereas parents can seek leave to apply to discharge an SGO.

e. If an adoption order is made, the parents will need to obtain the permission of the court before they can make an application for a contact order.

f. Where an SGO is in place, there are a small number of important medical decisions where the consent of parents is also required, whereas under an adoption order such consent is not needed.

g. Where an SGO is in place, the consent of all holders of parental responsibility is needed to change the child's surname and there are time limits on removing a child from the jurisdiction without consent; there are no such restrictions under an adoption order.

h. An adopted child will have rights of intestate succession whereas a child placed under an SGO will not.

i. In any future proceedings relating to the child, the birth parents of an adopted child are not automatic parties.

15. There is an earlier unreported first instance decision of Hedley J in S and B v Newport City Council in respect of a grandparent adoption, in which the court made an SGO. The Court of Appeal considered this in Re S and said the following:

a. "It is, we think, an important feature of the case that in the household of Mr. and Mrs. S were also living their two natural children aged 19 and 13 as well as K's cousin (described as a "little boy"). The cousin was the son of another of Mr and Mrs S's daughters who was, of course, K's aunt, and his mother's sister. The judge decided that Mr and Mrs. S should be appointed K's special guardians. The judge's principal reason seems to have been that adoption would, as he put it, "significantly skew otherwise perfectly comprehensible and not unusual family relationships and structures". The judge also set out in some detail the manner in which K's relationships with various family members would be skewed by an adoption order."

b. "We draw attention to the caveat which the judge himself entered … - "One purpose of adoption is of course to give lifelong status to carers where otherwise it would not exist. In a familial placement, that is not necessary because family status exists for life in any event. That is not to say that a familial placement may never be secured by adoption. One can imagine cases where the need for security against aggressive parents, including forensic aggression, may be overwhelming, or where a child has such disabilities that the need for a carer to have parental status may last long into majority, where adoption may still be right and necessary. No doubt there will be other cases too."

c. "Each case needs to be decided on the application of the statutory provisions to the best interests of the particular child or children concerned."

16. I have considered the decision of McFarlane LJ (as he then was) in Re P (step-parent adoption) [2015] 1 FLR 1327 (CA) as regards proportionality, although that case was in respect of a non-consensual application to dispense with consent.

Background

17. C's parents were only together for a short while. When C was born, she lived with her mother and the applicants. M says they co-parented. F used to visit and stay over, until their relationship ended. For periods, M provided much of the day to day care, but very much with the support and oversight of the applicants.
18. M has significant mental and physical health needs, including a personality disorder. She has been candid in these proceedings, explaining that she struggles to look after herself, let alone a child. She found that she was not bonding with her daughter. She lived with the applicants and C until August 2019 when she left suddenly, explaining to her GP, and then the local authority, that she believes that C should be adopted. Since then, she has visited C briefly around ten times.
19. M no longer wishes to hold parental responsibility for C or be responsible for making important decisions about her daughter's life. She has been thinking of relinquishing her responsibilities since the start of 2017. She says it took her two and a half years to make such a difficult and final decision. She is certain that this is what she wants. She says her mental and physical health has not improved and fluctuates, as does her ability to cope. She emphasised how much she loves and cares for C.
20. The social worker has confirmed that M has been consistent that she does not want to have any parental responsibility for C. M feels that she will always be a part of C's life and C will know who her mum and dad are. She wants C to be in a stable and reliable home and she told the social worker that she does not want to keep on trying, and then not being able to give it her all. She has explained to the social worker how she cannot physically or mentally do it, and she knows that C is happy with the applicants.
21. C's father, F, does not hold parental responsibility, nor does he wish to do so. C comes to stay with him on alternate weekends. She has her own bedroom and really enjoys spending time with her father and paternal grandmother. These are important relationships for her and it is agreed that this arrangement will continue if an adoption order is made. The applicants and F have a good relationship.
22. The Social worker reports that F told her that he thinks that A1 and A2 are fantastic grandparents and C is in a safe and loving household. He said that they have discussed the different options at length and are all "on the same page". He believes that this adoption application is the best thing for C. She has been living with them since birth and this is the only home she has known. He feels that it is important that she stays in this environment as she is happy and settled. He does not want to consider any other orders such as special guardianship as he does not feel that these will meet C's long-term needs. He is happy with the current level of contact, in respect of which he will be flexible. The social worker reports that C also has a positive relationship with F's mum and spends a lot of time with her; they love having cuddles and they watch telly together.

The applicants

23. The applicants have played a key role in C's life, providing her with a safe home and making sure that all her needs are met. When M lived with them, they were also able to ensure that C was protected from any risk of harm. For reasons that I will return to, if they had not been involved in this way, it is likely that C would have needed some form of local authority intervention.
24. When M left the family home in August 2019, the applicants felt it was like a bomb being dropped. They felt at the mercy of everyone else, picking up the pieces. Their priority was keeping C safe, but they felt very much in limbo. They are upfront that they would have preferred for M to stay with C, but recognise that this cannot happen.
25. The suggestion for adoption came from M, not the applicants. Since then, both wider families have spent a lot of time considering the different options and working out what is best for C. This has included considering whether she could live with F, and whether an order such as an SGO might be more appropriate. The applicants have received legal advice on the different options, and M was apparently present at their legal consultation. The social worker has confirmed that F is also aware of the legal and practical differences between the various possible outcomes.
26. Both M and F think that adoption is the only option that would provide C with the long-term security needed throughout her life. They do not feel that any other order such as a special guardianship or child arrangement order will provide this long-term. They have signed the requisite consents with the guardian, who is satisfied that they are given on an informed basis.
27. The applicants have given a lot of thought to the type of order that they are seeking. They are looking at this as a long-term arrangement, not just for C's childhood. They do not want there to be any sense that this is something temporary, or that they are just standing in for the parents. They do not wish to feel that they are in limbo. They do not think this would be in C's best interests, particularly in circumstances where neither of her parents wish to exercise parental responsibility for her, and are carrying on their lives as they choose.
28. The applicants think it is important for C that she knows that they are committed to her. They do not think that an SGO will provide the same sense of belonging, nor allow for planning of her long-term welfare and happiness. They think an SGO will make C feel more insecure and anxious about the future, and expose her to possible conflict, for example if applications are made by M in the future. They note as well that an SGO would terminate aged 18, at a time when C will still need support and a sense of belonging.
29. There are also some practical reasons why the applicants wish to adopt. Given some of the risks posed by M to C, which are explored below, they consider that they need clear roles and responsibilities to reduce scope for conflict. In particular, they highlight the need to avoid issues in respect of unnecessary medical treatment. The applicants are also concerned about what would happen if one of them died, particularly A2 who is not a blood relative of C.

The Guardian

30. The guardian considers that the applicants have shown a commitment to C from birth, and they have been primarily responsible for meeting her needs. She says that the applicants have evidenced a high level of insight into C's needs, as well as significant insight into their daughter's needs. She feels that they have explored all of the options carefully.
31. The guardian's view is that the applicants have a clear understanding of how to promote C's relationships with her parents and wider family. She is confident that the family will be able to provide C with an age-appropriate yet truthful narrative about her life story. She says that C appears to have a good sense of identity and understands her place within the family. The applicants and parents do not think this will change, and they will continue to support C in understanding who she is, and her parents will remain as such, whether the legal link between them is severed or not. She says that C has been supported by her grandparents to talk about her feelings and has been reassured that they will always be her primary carers.

The social worker

32. There is a positive Annex A report. The social worker is satisfied that the applicants are insightful and able to deal with any issues that may come up in future, as C will no doubt have questions as she grows, especially around her identity and place in the family. She has some reservations about how C's relationship with her mother can be managed safely in the long-term, due to the risk of her continued mental health difficulties and inability to put C's needs before her own.

The welfare checklist

33. The child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding).
34. C is only five. The social worker has confirmed that from the time she has spent with C it is clear she considers A2 and A1 as her primary caregivers. She was also able to tell the social worker that she enjoyed visiting her daddy and that her mummy sometimes visits her. She knows that her parents are not able to care for her.
35. The child's particular needs.
36. C is not reported to have any additional needs other than those typically consistent with a child of her age.
37. The applicants have demonstrated for the past five years that they are able to meet C's needs, are committed to her and can protect her from harm. Whatever the outcome of these proceedings, that position will continue.
38. The likely effect on the chid (throughout her life) of having ceased to be a member of the original family and become an adopted person.
39. If an adoption order is made, C will cease to be a member of her paternal family. She will remain a member of her maternal family, albeit with different legal relationships, the starkest change being that her mother will, in law, become her half-sister.
40. As a young child, C's day to day life is unlikely to change if an adoption order is made. The professional evidence is that C has a clear sense of belonging with A1 and A2 and sees herself as part of their family, and is clearly aware that as well as having a nanny and granddad she has a mummy and daddy.
41. If an adoption order is made, then as an older child and an adult, C will be aware that she is no longer related to her father or her paternal family, who we know are important to her. The guardian says that it is understandable that as C grows older she may struggle to understand the reasons why her parents do not hold parental responsibility for her, and her grandparents are her legal parents.
42. The child's age, sex, background and any of the child's characteristics considered relevant.
43. The applicants and C are all described as White British. C is Catholic and attends church occasionally.
44. Any harm which the child has suffered is at risk of suffering.
45. C's GP is very concerned about aspects of M's parenting. She has written to the court to explain that some of M's actions and behaviour over the past few years have put C at risk of harm, to the extent that the GP considers this to be a safeguarding issue. One of the main areas of concern has been M subjecting C to unnecessary medical examination and treatment, presenting unnecessarily at A&E and displaying anxious presentation in respect of health services. The GP is also of the view that C has suffered emotional 'trauma' from knowing that her mother has moved to live with her boyfriend, and not visiting much. The GP feels that M can show erratic behaviour and may decide to have C with her again and then change her mind. She said this would not be in C's best interests. Such is the level of the GP's concern, she said this: "The issue is not just that the grandmother should be allowed parental responsibility but that the mother should have her parental responsibility removed."
46. The social worker confirms that C has been affected by M's decision to move out and not spend time with her. C was upset by this, and very worried for her mother. Her professional view is that if an SGO was granted, M would still have parental responsibility, albeit reduced, and so this would be unlikely to eradicate the safeguarding issues that have arisen.
47. The relationship which the child has with relatives… and with any other person in relation to whom the court considers the relationship to be relevant, including (i) the likelihood of any such relationship continuing and the value to the child of it doing so; (ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs; (iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
48. C has a strong relationship with F and her paternal grandmother who is said to adore C and is always welcoming to A1 and A2. C also sees her paternal grandfather and her paternal great grandmother. The wider paternal family supports the application.
49. The preservation of these relationships will be extremely important for C in the future, especially if an adoption order is made and the legal link with her paternal family is severed. It is particularly important for her to maintain a close relationship with her father, and to identify him as such.
50. I have never come across the situation before where a father has a strong relationship with his daughter and shows a long-term commitment to regular overnight contact, but is actively supporting that child being adopted, albeit within her maternal family. Furthermore, this is not just a case where F has given his consent, he has chosen to attend all court hearings, engage properly with all professionals and has been involved in discussions with his wider family. I am satisfied he has been fully involved with this process, has thought through things carefully, and is taking the steps he considers to be in his daughter's best interests.
51. The family is clear that these contact arrangements will continue. I am satisfied that this is correct. The applicants have shown over some years now that they are able to promote contact between C and her father and wider paternal family. This has been planned carefully.
52. The position with M's contact is less straightforward. M herself accepts that she cannot bond with her daughter. She has not committed to regular contact since leaving the home, and such contact that she has had is said to have caused C some distress. If an adoption order is made, M will be able to continue to see C, providing this is a positive experience for her.

Realistic options

53. As noted earlier, in considering any application for an adoption order, the court must also consider other outcomes available under the Children Act 1989.
54. The applicants are not seeking a Special Guardianship Order, and indeed their position is that an SGO would not meet C's needs. A formal SGO report has not been prepared. I am, however, still going to consider special guardianship when evaluating options for C, given the legal obligation on me to do so. On the facts of this case, there is no question of me seeking to impose an SGO on the applicants, but if it appears to me that this would be the better outcome for C, I would seek to adjourn so further consideration could be given by the applicants, the family and the professionals.
55. The only other alternative is to keep things as they are, with C living with her grandparents under a child arrangements order.
56. Adoption – advantages

a. It provides a life-long outcome for C, a permanent arrangement giving C the continuity and stability that she needs. This will provide an enhanced sense of security for C, but also for her primary carers.

b. As things stand, C's day to day relationship with her parents will be unaffected, and she will continue to see them.

c. It will allow the applicants to protect C from being caused harm, as identified above. It provides clarity about responsibility for C's medical care, and her general living and contact arrangements, avoiding disruption.

d. It reflects the clear wishes of both parents, neither of whom are prepared to hold parental responsibility for C.

e. The views of the professionals in this case, and C's GP and school, are that this is the best outcome for meeting C's needs and keeping her safe.

f. It is likely to place her in a better position in terms of inheritance, although the applicants presumably have wills and so this is not a particularly weighty factor in this case.

57. Disadvantages

a. It severs the legal link between C and her paternal family, including her father. This is a significant disadvantage, even though the father does not have parental responsibility.

b. It skews the legal relationships within her own family, for example with her mother. This may cause C to be confused about some of these relationships and her identity in the long-term. The guardian says that as an adopted child C may struggle anyway with issues of identity and belonging and may need emotional or psychological support in the future

c. If things do not go to plan, and the relationship between the applicants and either parent breaks down, it will be harder for the parents to apply to the court for an order. They would need the court's permission.

d. The guardian says that C may experience a sense of stigma due to her legal parents being her grandparents, and therefore not having a similar family situation as her peers. This could cause C emotional distress and affect her sense of identity.

e. It is a significant, irreversible decision that will affect C for the rest of her life.

58. Special Guardianship Order - advantages

a. The social worker confirms that SGOs provide a high level of permanency through childhood.

b. The status quo remains the same in terms of day to day arrangements.

c. Some of the concerns about M seeking to take back care can be managed through the special guardian's superior parental responsibility, although not in respect of all matters.

d. C's mother would continue to share parental responsibility, meaning the legal link would remain intact.

e. C will continue to have a legal relationship with her father, but also her paternal family. This could be important for her in the future, in terms of her sense of identity but also in respect of practical matters.

f. It is less of an interference with C's life than adoption, as an SGO does not affect her as an adult and us capable of being revoked if needed.

59. Disadvantages

a. It is not what the applicants want, nor something that they consider will work. It is also against the wishes of both parents, neither of whom wish to hold parental responsibility.

b. The social worker says that it does not provide the same level of security as adoption.

c. The order only lasts until C is 18, after which point her legal relationship with her grandparents would change, leaving her without anybody performing the role of a parent.

d. It is against the professional advice of the social worker and the guardian. The professional view is that this might not protect C from some of the risks presented by M, such as such as over medicalisation and anxious presentation at health services.

e. It is possible for the mother to apply to discharge the order, which it is felt is something she might do when she is struggling with poor mental health. Unmeritorious applications will cause disruption, including to C's primary carers, and expose C to further professional involvement.

60. Child arrangements order - advantages

a. C retains her existing legal relationships with her family, which could be important to her as she gets older, particularly into adulthood.

b. Both applicants will hold parental responsibility.

c. It is the least interventionalist of the options.

61. Disadvantages

a. The evidence suggests that C will not be safe. The problem would be during the periods when M seeks to exercise parental responsibility. The GP is so concerned about this that she has indicated that she would make a safeguarding referral

b. It is against the wishes of everybody who has parental responsibility for C, and her father and against the professional advice received.

Discussion

62. By all accounts, C is a delightful child. It is clear from the evidence that both applicants are loving and caring grandparents who can fulfil the role of C's primary carers and ensure all her needs are met. They can also provide her with the stability and security that she needs.
63. M is clear that she wishes to give up her parental responsibility. She has wanted to do so for some time. For his own personal reasons, F is equally clear that he does not feel able to hold parental responsibility for his daughter.
64. The difficulty in this case arises out of the fact that the applicants are seeking an adoption order, rather than going down the more usual route of seeking an SGO.
65. The evidence is that C has a clear sense of who her family are. She knows that the applicants are her grandparents, and she refers to them as such. She knows her parents as her parents. There is no sense of anybody seeking to deceive C, or anybody else, about her identity.
66. I am satisfied that the application is made with good intentions and I accept the evidence of the applicants that this is not something that they had set out to do, but they feel it is the best outcome for C. They appear genuine. There is no suggestion here that they have any sort of malign motive, or might seek to go back on what they have said about maintaining the roles of the birth parents in C's life.
67. The fact that this outcome has been agreed by the entire family is, in my view, very significant, as is the fact that both parents have been pro-active in showing support. This is not a case where they are simply going along with what is proposed.
68. The main concern that I have is about the impact that an adoption order might have on C as she gets older, in particular as an adult. It is unclear to what extent the skewing of relationships might cause her confusion about her identity, resentment, upset or distress at the way in which this court has made an irreversible change to her life. On these matters, I have the benefit of professional evidence from the social workers.
69. The local authority social worker says that as C gets older she will know that she is being raised by her grandparents rather than her parents and she may need some support in dealing with this. The social worker is satisfied that the applicants are well able to support C in her life story. Whilst this arrangement might cause some confusion, she considers that the benefits of the arrangement outweigh this. In terms of the skewing of the relationship, in particular with M, the social worker considers that the emotional connection between them outweighs the legal position. The guardian points out that C knows who her parents are, and even if an adoption order is made these emotional bonds will not change. It seems that the view of the professionals is that on the facts of this case the impact of any skewing will be modest and far outweighed by the positives of an adoptive placement.
70. Although this order is being made with the consent of all parties, C is only five and any decisions today could affect her for the rest of her life. The decision that the court is being asked to make is, therefore, an interference with her own article 8 rights, and so decisions need to be necessary and proportionate. Of course, this is a very different evaluation to the one that would need to take place in care proceedings. Both parents have provided their informed consent.
71. In the unusual circumstances of this case, with neither parent prepared to hold parental responsibility, the agreement of all parties and the commitment to on-going contact, I am satisfied that adoption is a proportionate interference into C's family life. It will provide her (and her primary carers) with a genuine sense of stability, not just during her childhood but beyond. I accept the professional evidence, and the considered view of the family, that an SGO will not provide sufficient security and stability for the reasons identified.
72. Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings, s.46(6) of the Act. Where adopters are willing to agree contact, it is unnecessary to make an order see Re T [1995] 2 FLR 251 (CA).
73. I cannot see any need for a contact order in this case. It remains possible for either parent to apply to the court for permission to issue proceedings under the Children Act 1989. Whether permission is granted will be a matter for the judge at the time, although I would anticipate that they will need to see this judgment, the two local authority reports and the two guardian reports.
74. For these reasons, I make the adoption order sought.