England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 February 2014

MR JUSTICE MOOR:-

1. This is an application by the First Respondent, IA (hereafter "the Father") for:-

(a) Permission to oppose the making of an adoption order pursuant to section 47(5) of the Adoption and Children Act 2002; and/or for

(b) A stay of the application pending determination of his application to the European Court of Human Rights.

2. The application for an adoption order relates to N, who was born in October 2008. She is therefore five years of age. As I will explain in due course, she has serious disabilities which require a high level of care.
3. Care proceedings were first instituted in relation to her by the Second Respondent, the London Borough of Croydon, in January 2009. This litigation has therefore been continuing for over five years. This has been far too long on any view. The Father and/or the Paternal Grandmother have attempted to appeal various orders made in the Croydon County Court by HHJ Atkins on three occasions to the Court of Appeal and once to the Supreme Court. The Father has now instituted proceedings in the European Court of Human Rights. All the UK appeals have ultimately been unsuccessful.
4. It follows that I am quite satisfied that the litigation must be brought to a conclusion as quickly as possible, provided it is in accordance with the law. The order that I intend to make will ensure that this is done.

The relevant history

5. The Father was born in Nigeria in 1977, so he is now aged 36. He came to this country in 1999, using false identification papers. He does not have permission to remain here although the evidence at an earlier stage of the proceedings was that he had good prospects of achieving such permission in due course.
6. The Mother, CW was born in 1982, so she is aged 31. She has had serious mental health problems as well as difficulties with alcohol and drugs. Her whereabouts are unknown. She has not seen N since February 2009. She was represented at earlier stages of the proceedings by the Official Solicitor but has not been represented before me. She has four older children. The Father of N is not the father of any of those children. They are all living with paternal relatives pursuant to special guardianship orders.
7. The Father has been living with his mother, IT ("the Paternal Grandmother"). She was a party to the care proceedings although there has never been a conflict of interest between her and the Father. At an earlier hearing, I declined to join her as a Respondent to this application although she was present in court throughout the hearing.
8. I have already indicated that N was born in October 2008. She was born prematurely. She is severely disabled. She has never lived with either parent, although she has had regular contact to the Father and the Paternal Grandmother. Following her birth, she remained in hospital for some seven months. Amongst other difficulties, she was suffering from glottic stenosis which required a tracheotomy.
9. The Local Authority issued care proceedings in January 2009. In May 2009, N was discharged from hospital. She was placed with the foster carers who are now the proposed adopters. She has therefore been with them for over four and a half years.
10. In April 2011, N suffered a life threatening event when her tracheotomy became blocked. Fortunately, the foster carers acted promptly and with great skill to save her life. It is right to note that there has been a significant improvement in this aspect of her physical health although she continues to have a number of serious and challenging medical issues.
11. On 29^th June 2011, HHJ Atkins gave judgment refusing the Paternal Grandmother's application for a further assessment pursuant to s38(6) of the Children Act 1989. Even then, he was concerned about the effect of delay. On 9^th September 2011, Ward LJ adjourned the Paternal Grandmother's application for permission to appeal pending the outcome of the next hearing before HHJ Atkins.
12. At the conclusion of a six day hearing, on 21^st October 2011, HHJ Atkins found the threshold criteria to be established, namely that N was suffering or was likely to suffer significant harm and that the harm or likelihood of harm was attributable to the care given to her or likely to be given to her not being what it would be reasonable to expect a parent to give her. There was no dispute as to this although the matters raised were against the Mother not the Father.
13. The judge ruled out both the Father and the Paternal Grandmother as long-term carers for N. He rejected long term fostering as being unsuitable in this case. He said that, whilst special guardianship would be a possible solution, it had disadvantages. For example, it expires at age 18 and would provide less permanency for N than adoption. He had previously quoted in detail from the evidence of the Independent Social Worker, Anna Boyle as to the need for permanency and stability for N. He considered adoption would be the best solution, whilst recognising that it was a huge interference with the right to family life of N and her father and grandmother. He said a greater interference was hard to imagine but added that, for the reasons he had given, he considered it both justified and proportionate and in pursuance of a legitimate aim, namely the welfare of N. He was unable to make a placement order as the matter had not been to the Adoption Panel and there was no application before him. He rejected an application for further assessments. He again referred to the very considerable delay and that the proceedings had been very drawn out. The judgment is a long and detailed judgment, running to over thirty pages, by a very experienced judge.
14. In November 2011, the plan for adoption was approved by the Panel. On 24^th January 2012, Ward LJ refused the Paternal Grandmother permission to appeal following an oral hearing. The focus seems to have been the refusal of further assessments rather than the substantive decision. He again stressed that delay was an important element in the case.
15. The matter came back before HHJ Atkins shortly thereafter. His judgment is dated 17^th February 2012. He incorporated his previous judgment into this judgment but this judgment is itself not short, comprising some eleven pages. It is clear, however, that he concentrated on the matters that were substantively in issue before him, namely whether or not N could live with the Father and Paternal Grandmother or whether she should be adopted. It remained the case of the Father and Paternal Grandmother that N should live with them, even though they had been ruled out in the previous judgment. It is not until Paragraph 168 of Mr Macdonald's Written Submission on their behalf that a special guardianship order is mentioned. HHJ Atkins made a final care order and a placement order. Parental consent was dispensed with. The Local Authority was authorised to place for adoption, although I make it quite clear that this was to be with the existing foster carers. These carers were fully committed to direct parental contact after adoption. The judge therefore declined to make a contact order. In his judgment, he found that the benefits of adoption outweighed the disadvantages and that it was clearly in N's best interests, given the importance of her medical condition and her welfare throughout her life.
16. On 3^rd May 2012, Black LJ refused the Father and the Paternal Grandmother permission to appeal on paper. The application was renewed orally by leading counsel before McFarlane LJ on 24^th July 2012. For the first time, the issue of special guardianship featured substantively. McFarlane LJ gave permission to appeal on the basis that he was concerned that the distinction between special guardianship and adoption should have been uppermost in the mind of the court.
17. The full appeal came on before Thorpe and Rimer LJJ and Baron J on 20^th November 2012. The appeal was dismissed. Thorpe LJ gave an extempore judgment. He said that there was no dispute that the foster carers would be N's long term carers. He then concentrated on the fact that special guardianship had not been actively argued before HHJ Atkins. He concluded that, as a result, it could not be said that the judge was wrong not to deal with it. The other two judges agreed. They refused leave to appeal to the Supreme Court.
18. On 27^th March 2013, the Supreme Court refused permission to appeal as there was no point of law of general public importance. The same day, N was formally placed for adoption with the Applicants, although she had been with them already for nearly four years at the time.
19. The Father and Paternal Grandmother engaged the European Court of Human Rights on 16^th August 2013. Their application was registered with the ECHR on 27^th August 2013. The Court extended time for submission of their Statement of Case to 21^st November 2013 but refused a paper application for interim measures, which, if granted, could have prevented the issue of the adoption application.
20. The Adoption application was duly issued and transferred first to the Brighton County Court by the Horsham FPC on 23^rd October 2013 and then to the High Court by HHJ Jakens on 31^st October 2013.
21. The Statement of Case to the ECHR is dated 20^th November 2013. It alleges that the Father and Paternal Grandmother's human rights were violated by the decision to make a placement order and not to make a contact order. It is said that there was no proper consideration of all the options available and the order made was neither necessary nor proportionate. There is criticism of the way the case was dealt with by HHJ Atkins, the Court of Appeal and the Supreme Court. It relies heavily on decisions made in the English Courts since the orders in this case and, in particular, Re B [2013] UKSC 33 and Re B-S (Children) [2013] EWCA Civ 1146.
22. The Father seeks the court's permission to oppose the adoption and for a stay pending a decision in the ECHR. Pursuant to section 47(5) of the Adoption and Children Act 2002, a parent may not oppose the making of an adoption order without the court's leave. The court cannot give leave unless satisfied that there has been a change in circumstances since the placement order was made.
23. At a directions hearing on 2^nd December 2013, Theis J recorded in her order the four grounds on which it was argued that there was a change of circumstances, namely:-

(a) The effect of Re B and Re B-S;

(b) The alleged cancellation of one or possibly two periods of contact in June 2013;

(c) Improvements in the health and development of the subject child; and

(d) The pending application in the ECHR.

The relevant law - stay

24. I accept that, pursuant to Rule 4.1(3)(g) of the Family Procedure Rules 2010, the court has the power to stay the whole or part of any proceedings or judgment, either generally or until a specified date or event.
25. In NB v Haringey LBC [2012] 2 FLR 125, Mostyn J refused an application for a stay. He said that the minimum requirement for a stay was an arguable appeal with reasonable prospects of success. Five principles could be derived. First, the court must take into account all the circumstances of the case. Second, a stay is the exception rather than the general rule. Third, the party seeking a stay should provide cogent evidence that the appeal will be stifled or rendered nugatory unless a stay is granted. Fourth, in exercising its discretion, the court applies what is in effect a balance of harm test in which the likely prejudice to the successful party must be carefully considered. Fifth, the court should take into account the prospects of the appeal succeeding. Only where strong grounds of appeal or a strong likelihood of success is shown should a stay be considered.
26. It is pertinent to note that the ECHR has not, as yet, even accepted that it will hear this case. Mr Macdonald drew to my attention that the European Court does have the ability to expedite proceedings where the wellbeing of a child is at issue. In the case of YC 4547/10, priority was given in relation to a case involving children but, due to the huge pressures on the Court, the case took 26 months to be decided.

The law – change of circumstances

27. Mr Macdonald relies heavily on Re B in the Supreme Court and Re B-S. He is quite blunt about it. He says that, in the light of these two later authorities, the Court of Appeal and the Supreme Court were wrong to dismiss the appeals from the order of HHJ Atkins.
28. Re B reiterates that a care plan for adoption is an extreme order and a last resort (Baroness Hale at Paragraph 145). In compliance with Article 8 of the ECHR and UNCRC, a court should only make such an order if it is "necessary" in the sense that "nothing else will do".
29. In Re B-S, the President, Sir James Munby indicated "real concerns" about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption both in the materials put forward by Local Authorities and Guardians and in too many judgments.
30. He said that the evidence placed before the court must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option, in particular the nature and extent of the risk of harm involved in each option. The need for analysis of the pros and cons and a full reasoned recommendation was essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. The court then referred to the need for adequately reasoned judgments. It is possible that the correct analysis was performed by the Social Workers but Mr Macdonald submits that the judgments are not adequately reasoned.
31. The Court of Appeal has subsequently considered the issue of giving permission to oppose the making of an adoption order in Re W & Re H [2013] EWCA Civ 1177. There is a two stage test. First, has there been a change of circumstances? If the answer is no, that is an end of the matter. If the answer is yes, the question is whether leave to oppose should be given. The judge must first consider and evaluate the parent's ultimate prospects of success. The key question is whether the parent's prospects of success are more than just fanciful but whether they have solidity. In doing so, the judge has to remember that the child's welfare is paramount and must be considered throughout her life. In evaluating welfare, the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in the future. The court must also consider whether the welfare of the child will be so adversely affected by an opposed application that leave to oppose should be refused.
32. In Re J (A Child) [2013] EWCA Civ 1685, Black LJ dealt with the approach to judgments given on the issue before publication of the decisions in Re B and Re B-S. She said:-

"I have already remarked that the judge's judgment is short. It has to be borne in mind that the judge can hardly have been aware when he gave it of the intense focus that there would be this year on the form and content of judgments…However, although he kept the judgment short, the judge gave clear signposts to the evidence that supported his conclusions…it is not incumbent on a judge to replicate all the evidence in his judgment, provided that he identifies sufficiently the evidence he has accepted, what he takes from it and what findings he makes based upon it. In my view, this judge did that and, taken as a whole, his judgment clearly shows that he engaged with the essence of the case and directed his mind to, and answered the key questions. We can see from it why it was that he made the orders that he did."

33. In Re HA (A Child) [2013] EWHC 3634 (Fam), Baker J said that he did not read Re B and Re B-S as a radical change. He said:-

"The Court of Appeal is simply emphasising the need for a rigorous analysis and comparison of the realistic options for the child's future, having regard to the advantages and disadvantages of each option."

The alleged change of circumstances

34. By the time I heard the case, Mr Macdonald relied on five alleged changes of circumstances, one of which was new and one of which was different to that outlined in the order of Theis J.
35. I intend to deal with them in turn. Four have no merit. I will deal with these first.
36. First, it cannot possibly be said that the cancelling of one or possibly two periods of contact in June 2013 gets close to a change of circumstances. There was a genuine mistake made by a social worker and there was an offer to make up the lost contact. The argument was modified by Mr Macdonald in submissions to be based on the fact that the Applicants had previously supported twelve periods of contact between N and her Father after adoption but were now saying there should be only four. This has just as little merit. The Judge had considered this in detail in his judgment and had preferred the Local Authority position which was for four periods of contact, rather than that of the Guardian (or even the Applicants) for more. He approved the Care Plan which provided for four contact visits, so there has been absolutely no change in circumstances.
37. Second, it is alleged that there have been improvements in the health and development of N. The only relevance of this, in my view, would be if it meant that she was going to be able to be independent by the time she attained her majority rather than remaining dependent on the Applicants.
38. Whilst it is quite clear that there have been improvements in her physical condition and, in particular, in relation to the tracheotomy, it is clear that she remains a very disabled child. I have a medical report from Dr O, a Consultant Community Paediatrician dated 21^st January 2014 which makes it clear that N has cerebral palsy (spastic diplegia); autism (diagnosed since the hearings before HHJ Atkins); and global development delay as well as speech and language delay. She is inattentive and impulsive. She is likely to have significant and complex communication needs. It is right that Dr O has not seen N recently. At the PTR, I gave permission for the doctor to be asked three follow up questions. I do not have the answers to hand as yet but it is clear to me that there has been no significant change of circumstances in this area.
39. The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.
40. Fourthly, the Paternal Grandmother has, since the judgments of HHJ Atkins, been given permission to remain in this country, albeit initially for a two year period. It seems pretty clear that this will, in due course, be extended so as to enable her to become a British Citizen. Again, this is most certainly not a change of circumstances. The expert evidence before Judge Atkins considered this was the likely outcome, even if the reason seems to have been different to that postulated at the time. Moreover, the case against adoption was in part based on the possibility of the Father and Paternal Grandmother being removed from this country if the placement order was made. Although this argument was firmly rejected by the Judge, it is impossible to see how the favourable resolution of the Grandmother's position can assist the Father in alleging a change of circumstances. It follows that this ground also fails.
41. It is, however, the final ground with which I have had the most trouble. It is argued that the effect of Re B and Re B-S invalidates the decision to make a placement order and is therefore a sufficient change of circumstances to warrant the Father being given permission to oppose the adoption.
42. I do not propose to deal with arcane arguments as to whether or not the Supreme Court and the Court of Appeal were merely stating the law as it has always been. The simple fact of the matter is that HHJ Atkins did not have the benefit of those judgments when he gave his judgments.
43. I have come to the conclusion that is impossible to say that Judge Atkins applied the test in Re B. In doing so, I am not being critical as he did not have that test available to him. It is though right that he did not find that adoption was "necessary" nor that "nothing else will do." In fact, he found the opposite. He found that special guardianship was a "possible solution" albeit with disadvantages. He found adoption to be "the best solution" rather than the only solution.
44. It is, of course, quite possible that, if he had properly directed himself, he would have come to the same conclusion but he has not said that. Moreover, I take the view that it is impossible to come to that conclusion in the way that Black LJ was able to do in Re J.
45. I must consider the fact that both the Court of Appeal and the Supreme Court dismissed the Father's appeals. It is, though, undoubtedly the case that the Court of Appeal did not dismiss the appeal on the basis that a proper construction of the judgment was that there had been a determination of the competing arguments between special guardianship and adoption. The judgment in the Court of Appeal is entirely based on the fact that the Judge had not been asked to perform this exercise. The subsequent cases have made it clear that he should have done so.
46. I have therefore come to the conclusion that there has been a change of circumstances in accordance with section 47(5).

Prospects of success

47. I must now turn to the second question, namely whether or not the Father has shown that his prospects of success are more than just fanciful but have solidity. I cannot say what conclusion I will come to when the arguments in favour and against adoption are correctly marshalled before me. I can, however, say that it is not inevitable that the end result will be adoption. It follows that I have concluded that the prospects of success are not fanciful and do have the required solidity.
48. My paramount concern is the welfare of N. Mr Main Thompson for the Local Authority rightly concedes that, given her disabilities, it will not adversely affect N's welfare if I give permission so her welfare is not a ground for refusal.
49. I have been troubled about the position of the Applicants. I do not want them to suffer undue distress, which I accept could itself have a detrimental effect on N. In this regard, however, I am reassured by the evidence that was before HHJ Atkins. They were asked in writing as to their views and they said that their priority was to provide consistency and stability for N and that the type of order made by the court was, for them, less important than this. I recognise that they now seek an adoption order but it is not a case where N was placed with them solely on the basis of a placement order.
50. To reassure them further, I make it quite clear that there is no question whatsoever of N being removed from their care. The Father's appeal against the final care order has been dismissed and he can have absolutely no complaint about that. He has been excluded as a carer and that will remain the position. The issue is solely between special guardianship and adoption. I make it equally clear that, by giving leave to oppose, I am not indicating that I favour special guardianship over adoption. I will decide on the evidence. I am merely saying that the Father is, on the authorities, entitled to have the matter heard and properly determined.
51. I therefore give the Father leave to oppose the adoption application. As I indicated at the beginning of this judgment, I am very troubled by the immense delay that has taken place in this case. I will hear the case with a two day time estimate commencing on 30^th April. It will not be adjourned. It will be reserved to me. The hearing will concentrate solely on the issues identified in Re B and Re B-S. I will not consider anything else. If there has to be oral evidence, it will be extremely strictly controlled.

The stay application

52. Mr Macdonald accepts that, if I decide to grant his client permission to oppose the adoption, the need for the ECHR litigation disappears. I consider that the ECHR litigation should therefore be abandoned.
53. It follows that there is no question of my granting a stay in relation to it. I do not therefore have to consider the prospects of success were it to go ahead and I decline to do so.