England and Wales High Court (Family Division) Decisions

IN THE FAMILY COURT

		Swansea Civil Justice Centre
		5th February 2015

MR JUSTICE MOOR:-

1. I have been hearing an application for an adoption order in relation to 'E' who was born in January 2013 and is therefore two years of age. The Applicants are the proposed adoptive parents. It is a confidential serial number adoption and their identities are unknown to the birth parents.
2. The First Respondent, FB is E's mother (hereafter "the Mother"). She was given permission to oppose the application by HHJ Garland Thomas on 2nd September 2014. Her case is that E should be returned to her care. If I am against her as to the adoption application, she seeks direct contact to E on what has been described to me as a "shared care" basis.
3. The Second Respondent, JK is E's father (hereafter "the Father"). He too opposes the adoption. He seeks contact to E. I should, however, note that he supported the placement order when it was made by HHJ Edwards on 27th September 2013.
4. The Third Respondent is the Local Authority (hereafter "the Local Authority") which was the Local Authority in the original care proceedings. It supports the adoption application as does E's Guardian.
5. The Fourth Respondent is CB (hereafter "C"). She is E's half-sister. She was born in 1997 and is therefore 17 years of age. I joined her as a party on 27th November 2014. She opposes the adoption application.

The parents

6. The Father is aged 50. He is a recovering heroin addict who has also had alcohol abuse issues. He has a significant criminal record, mostly for dishonesty although there have been offences related to domestic violence. E is his only child.
7. The Mother is aged 45. She is a recovering alcoholic, who has also abused illicit drugs in the past. A report on her by Lisa Wolfe, a clinical psychologist, dated 28th November 2013 found that she had an insecure avoidant attachment style caused by a physically abusive childhood. She lacks a blueprint to have a functional male relationship. She has been poor at self-monitoring her feelings. Although she does not accept this, it appears that she has not had a relationship with a male that has not been abusive in one way or another.

The children

8. The Mother has five children in total. The eldest, AB is independent and studying at college. Her father is W. He has no involvement with her.
9. The second is BB. His father is X. He also has no involvement with BB. BB was born is aged 20. He is studying at university.
10. It has to be said that it is a remarkable testament to both BB and AB that they have achieved so much notwithstanding all that has happened in their lives.
11. CB is the third child. Her father is Y. He too has no involvement with CB. As I have already noted, she is aged 17. She is attending a college and is a talented artist. She has been described as being a troubled young lady. Lisa Wolfe diagnosed a social anxiety disorder and an avoidant attachment style. The Mother says she is about to be diagnosed on the autistic spectrum, but that seems to have been a long process that has not reached a conclusion. CB lives with her Mother although the Local Authority has a supervision order which expired yesterday, 4th February. Given her age, it cannot be renewed.
12. The fourth child is DB. Her father is Z. She is aged 11. She also lives with her Mother. She was also subject to the supervision order which expired on 4th February. The Local Authority does not intend to seek to have it renewed although she remains a child in need.
13. DB seems to be remarkably well adapted. The Mother seeks credit for that but I do not consider she is entitled to credit. I find that it is just very fortunate that DB has proved so resilient notwithstanding everything she has been through.
14. E is therefore the fifth child. As I have also already noted, he was born in early 2013 and is just two years old.

Local Authority involvement

15. There has been Local Authority involvement with the family for around sixteen years, since AB was aged ten. It started when the family were living in another part of the country when the Mother was drunk in charge of the children. When AB was aged 12, she was found on the streets by the Police at 4.55 am and had to be returned home.
16. In 2002, the Mother's then partner, Z was the perpetrator of domestic violence against the Mother. There were at least two incidents. On one occasion, BB had to go out onto the street to shout for help at 11 pm because he was so distressed and concerned for the Mother. He was aged seven at the time.
17. Regrettably, the children witnessed the domestic violence. In August 2005, a car was set alight in the family's front garden and petrol was thrown at the house. Z's sons were implicated along with another attack on the family home. The Mother then separated from Z briefly. In March 2006, Z himself damaged the front door.
18. The family was forced to flee. In September 2006, the Mother and the four eldest children moved to a refuge in another region of the country. Almost immediately, there was an anonymous referral alleging that the Mother was drunk in charge of the children. Z followed the family. Domestic abuse and alcoholism continued to the undoubted detriment of all the children.
19. Indeed, it is clear that the Mother has had serious alcohol problems on and off over approximately a sixteen year period. She has regularly sought professional help. She has remained free of alcohol for significant periods but the evidence until 2013 was that, very regrettably, she always eventually lapsed back into drinking again notwithstanding the professional help she had been getting.
20. In July 2008, the Police removed DB and CB to a place of safety. They remained in foster care for nearly six months. The Mother told me she began to seek help from a drug an alcohol support agency in 2007. This has continued in one form or another ever since. I consider this important in the context of the evidence I have heard in relation to this application.
21. The Mother made a real effort to sort herself out and get the children returned. This was to her considerable credit. In December 2008, DB and CB were rehabilitated to her but she soon relapsed into alcohol misuse. That is not to her credit and is again something I will need to consider carefully. I am told that she had two separate relapses but the file was closed.
22. In 2010, the Mother commenced a relationship with the Father. The Mother was undoubtedly still getting help from a drug an alcohol support agency around this time. On 5th August 2011, the Father made threats against both the Mother and a drug an alcohol support agency worker. In November 2011, AB rang the Police to tell them that CB was very distressed as her Mother and the Father were arguing. The Father was threatening to blow up the Mother's house. Later in November 2011, he told his GP that he had assaulted the Mother. In January 2012, the case was reopened as CB was suicidal. The Mother's alcohol misuse was an issue again. The Father was told to leave the home and an agreement was reached that he would not return. It was signed in March 2012 and stipulated that the Mother was to have no contact with the Father.
23. By the end of March 2012, the agreement had been broken. Two weeks later, the Father assaulted the Mother in the home but the Mother failed to report this to the Police. In late April 2012, the Police removed the Father from the home after yet another incident of domestic violence. In mid May 2012, the Father was telling third parties that the relationship was ongoing. The Father was removed again by the Police later in May 2012.
24. In April 2012, the Mother became pregnant with E. The Mother told HHJ Edwards, who heard the care proceedings, that this was a one-off sexual encounter based on sympathy. She told me exactly the same but I note that Judge Edwards rejected that evidence.
25. In May 2012, the Father assaulted the Mother. It appears that he punched her in the face and the stomach, when he learned of her pregnancy, threatening to "kick the baby out of her". BB rang the Police. The Father admitted an assault but denied the Mother's account, saying he pushed a pasty into her mouth. Judge Edwards found the incident to have occurred as described by the Mother. In July 2012, he was sentenced to four months in custody suspended for two years for the assault and was given an indefinite restraining order preventing contact with the Mother.
26. Notwithstanding the restraining order, in August 2012, the Mother and Father were seen together by the Father's Probation Officer. The Father said they were in regular contact. The Mother accepted that she would meet him twice a week and described these as "ad hoc" meetings in the community. HHJ Edwards rejected her evidence and found that the relationship was continuing albeit in a more surreptitious manner.
27. In April 2013, a further agreement was reached with the Local Authority that E would remain with her but on the basis that she was to have no contact with the Father or his family. Women's Aid raised concerns about the Mother's level of engagement in April and it was clear that the Father considered the relationship was ongoing at the time. Indeed, they were seen together at a Bus Stop in June 2013 but the Mother did not tell the Social Worker on their next meeting. The parties had been sending each other text messages. Judge Edwards found that the Mother had tried to send text messages to the Father even after he was imprisoned in August 2013.
28. In part as a result of the breaches in the agreement, the Local Authority applied for a care order and a placement order in relation to E in July 2013. HHJ John made an interim care order shortly thereafter and E was placed with foster carers. This was the last time that E lived with the Mother and the other children. HHJ John could not have been clearer. He told the parties that they were in "the last chance saloon" and there must be no contact between the parents.
29. Despite this warning, contact undoubtedly continued between the parents. HHJ Edwards made findings to this effect. In late July 2013, the Mother informed the police she had bumped into the Father near the Contact Centre. In early August 2013, the Father informed the Police that the Mother had attacked him. She was detained in a Police cell for over eight hours. E's last contact to the Father took place a few days later in August 2013.
30. The Mother alleges that the Father assaulted her in a subway shortly thereafter. The Father was arrested for breach of the restraining order and was subsequently sentenced to four months in custody. He was released in October 2013.
31. The matter came before HHJ Edwards in late September 2013. She made a care order and a placement order. Her judgment has not been appealed. She noted in her judgment that both parents accepted that the threshold criteria in section 31 of the Children Act 1989 was satisfied. The Father supported a care order and a placement order. The Mother opposed the orders. She sought one last chance. She asked for adjournment to attempt rehabilitation. Her position was, however, that if the judge rejected rehabilitation, she supported adoption over long term fostering.
32. The Judge had grave concerns about CB and DB's welfare which, she said, increased as the evidence was heard. It appears that, as a result of this, the Local Authority issued care proceedings in relation to CB and DB. The judge said that, even if the Mother had an "epiphany" moment, it would be an impossible task for her to keep the Father away from her home. She found that he was likely to seek her out on his release. She further found that the Mother tells the Local Authority only what she wants to tell them, despite knowing full well that she needs to disclose but choosing not to do so. She had chosen abusive partners because of her own abusive upbringing and the psychological harm it caused her. She needed to be in a relationship, whatever the cost to her or the children. She was at times evasive and at other times belligerent when cross-examined. She was an unreliable witness. The judge had no doubt that the true level of violence against her and the number of meetings between her and the Father was far higher than the Mother said. She sensed their relationship was far from over. The Mother had no insight into the impact of all of this on the children. The parents would drink alcohol when they met up.
33. The history had shown that the Mother had numerous reconciliations with abusive partners. The Father was bound to try to seek her out and would always try to parent E, his only child. These were very high and unmanageable risks. She took the clear view that no lesser order than a placement order would do. Adoption was the only way. She found that E would settle into a new family with ease and would form strong bonds and attachments. The Mother had had umpteen chances but had failed to change. Whilst I must consider the position since Judge Edwards' judgment, the findings of fact she made are what the lawyers call "res judicata". In other words, they are binding on me. For what it is worth, I am quite sure I would have come to exactly the same conclusion given everything that I have read about the case.
34. Thereafter, the Mother's contact reduced to once per month. DB attended the farewell contact. She had also attended one other contact visit prior to the hearing before Judge Edwards. CB never attended. The Mother's last contact to E took place in December 2013.
35. The Applicants had applied to be adoptive parents. I will return to them in due course. They were selected and matched with E. In January 2014, E was placed with them following a period of introductions. He has remained with them ever since, which is now more than half his life.
36. The Mother undoubtedly made great efforts to get on top of her demons. I do, however, note that this is what she had done before when the girls were removed in 2008. As a result of her efforts, for which she is entitled to considerable credit, Judge Edwards made a supervision order for one year in relation to both girls on 4th February 2014. It appears that the Local Authority was content to seek no order but the Guardian wanted care orders with placement with the Mother. In one sense, the supervision order was a compromise but I do not see that anything very much turns on that.

The adoption proceedings

37. In March 2014, the application was made for the adoption order. The Mother sought permission to oppose. She argued that she had separated physically from the Father. Indeed, she and the girls had moved to get away from him and there is no reason to suppose he knows their new address. She said she had also separated emotionally from him. She said she had undertaken work in relation to domestic violence and had gained insight and strength to avoid abusive relationships in the future. She added that she had undertaken therapeutic work leading to greater self-awareness. She had (and has) achieved abstinence from alcohol. She had satisfied the court she can provide primary care to the other children. She had achieved a level of self reliance and confidence which makes her unrecognisable from the woman dominated by the Father. She made it clear that she has no criticism whatsoever of the care and love that has been provided to E by his carers. She believed that the risks from the Father can be managed going forward if E is returned to her care.
38. The application was heard by HHJ Garland Thomas on 2nd September 2014. She granted the Mother leave to oppose the adoption. She accepted that the matters raised by the Mother were sufficient to satisfy the court that there was evidence of a change of circumstances. She was also satisfied that the Mother's prospects of success were more than just fanciful but had solidity. She reappointed MM as Guardian. She had acted as Guardian in both E's proceedings and the proceedings relating to the two girls.
39. On 8th September 2014, the Mother applied for an updated psychological assessment of herself; a parenting assessment from an independent social worker and a child psychological assessment by Lisa Wolfe as to what was described as "Lost Child" syndrome. All three applications were dismissed by HHJ Garland Thomas on 25th September 2014. The Judge found that the proposed assessments were not necessary for the purposes of the proceedings. It was recited that the court had determined that the applicants were not required to give oral evidence at the final hearing. The matter was listed for final hearing on 17th November 2014 with a time estimate of 2.5 days.
40. On 3rd November 2014, an application was made by CB to be joined as a party and for contact orders to E. The application alleges a failure to take account of the views of the siblings when the placement order was made.
41. The Mother obtained a hair strand test dated 11th November 2014 from Dr Catherine Pyves, a psychiatrist and associate specialist in substance misuse. She only detected "over the counter" medication at levels that did not suggest problematic use. There was no evidence to suggest excess use of alcohol over the last six months or so. I entirely accept this evidence and that it shows that the Mother has, very creditably, abstained from alcohol since around October 2013.
42. The matter was transferred to me by Judge Garland Thomas in November 2014 following the application by CB to be joined as a party. I heard the application on 27th November 2014 and joined her. I listed an IRH before myself on 13th January 2015 and this final hearing, commencing 2nd February 2015.
43. CB's statement is dated 16th December 2014. She says she has not been pushed into this by her Mother. She alleges that her voice was not properly heard in the past and says she was marginalised. She accepts, however, that she was not easy to engage, saying it was an extremely difficult time for her. She complains about the number of social workers who saw her. She argues that adoption is not in E's best interests as he will lose his birth Mother and his sibling relationships. She says she wishes to maintain a relationship with him.
44. In January 2015, the Mother applied for permission to instruct a Nigel Cantwell of Geneva to undertake an expert assessment as to the operation of the United Nations Convention on the Rights of the Child and, in particular, as to how Articles 12 and 15 have been implemented in States that have adopted the Convention. She also sought a report from Mr Cantwell as to the advantages/disadvantages of open as opposed to closed adoption. I refused both applications on 13th January 2015 as being quite unnecessary. Indeed, I seriously doubted the relevance of the Convention. I will return to this in due course.
45. On the day, a further application was made to compel the prospective applicants to attend to give evidence. This surprised me given the recital in the order of HHJ Garland Thomas dated 25th September 2014. I was unable to discover what had changed. In any event, it was clear that there was no need to hear from the Applicants. I have already noted that the Mother specifically says she has no criticisms of their care of E. It is clear from the Local Authority evidence that the adopters are open and willing to support was is considered to be in E's best interests. If I was to determine that contact to the birth family was in E's best interests, they would have to do their best to facilitate such contact, even though they are instinctively opposed. I could not therefore see any advantage in requiring them to attend court to give evidence before me, particularly as the Guardian and the Social Worker could be cross-examined as to their Applicants' views. As the hearing has progressed, I have been further reassured that I was entirely right not to require them to attend.
46. On 19th January 2015, the social worker in the case, TT filed a third statement to deal with the way in which the views of CB and DB were ascertained in the previous proceedings. She says that every attempt was made to establish the views of both girls. This was successful with DB, whose views were put before Judge Edwards. CB, on the other hand, was very resistant to these attempts. She appeared mistrustful of professionals. She was quiet and withdrawn. She did not wish to exercise contact with E and the Social Worker took the view that she could not force her engagement. CB did not attend any contact sessions although offered. She did not wish to provide a card or picture or letter for E's memory box.
47. The statement then deals with the issue of contact following adoption. She reminds the court that indirect letterbox contact was part of the final care plan that was approved by Judge Edwards. TT was concerned that contact can undermine an adoptive placement and cause undue stress to the child, the adopters and the birth family. It can be detrimental to permanency. She stated that the purpose of such contact is to build on the child's understanding of his identity. She considered that in this case, it would be to meet the emotional needs of his birth family rather than E's needs.
48. Finally, the Cafcass Officer, MM reported on 28th January 2015. She stated that E is extremely settled in his placement. He has become fully immersed into his prospective adoptive family. He is developing secure and lasting attachments. The care provided to him by the applicants has been remarkable despite the significant stress and worry of these proceedings. She supported the Local Authority's position. She considered that the Mother minimised the risks of the Father. The Mother still does not accept some of the findings of HHJ Edwards and shows little insight, minimising the impact on CB of the past. She has an inability to acknowledge the deficits in her parenting. She comments that the Mother first started receiving help for alcohol misuse sixteen years ago and has had a number of relapses over the years. Only time will tell whether or not there are further relapses. It was clear that the Mother would struggle to accept the adoptive placement.
49. MM considered the Father to be a very high risk, who would not be able to leave the family alone if E returned to the Mother. He would want to be in control. He would be angry and threatening if the Mother ever had another partner. His new relationship is now over, having lasted some four weeks. He told her he was still drinking at weekends but she smelt alcohol on his breath when she met him.
50. CB was very reluctant to talk to her, as had been the pattern on her previous visits. CB told her there was no reason why E should not reside with the Mother and the other children. CB had been rather ambivalent towards E. DB said she missed E. She spoke fondly of him and said she would want to see him, if he could not come home.
51. MM thought E was likely to experience a number of different emotions including feelings of loss and rejection when he comes to understand his early experiences but there was a risk the Mother would undermine the placement as she does not accept it. She was strongly in support of an adoption order. She considered E would suffer significant harm if he was moved now. She did not support direct contact following adoption but considered indirect letterbox contact would assist E greatly.

The law on adoption

52. I am quite clear in my own mind that this case turns on its facts, albeit that I must apply the law to those facts. The application for an adoption order is made pursuant to the Adoption and Children Act 2002. Section 1(2) of the Act provides that, when a court is coming to a decision relating to the adoption of a child, the child's "welfare throughout his life" is the paramount consideration. When determining what is in the welfare of the child, the court must have regard to the checklist set out in section 1(4). Section 1(6) provides that the court must always consider the whole range of powers available to it (whether under the 2002 Act or the Children Act 1989) but must not make any order under the 2002 Act unless it considers that making the order would be better for the child than not doing so.
53. The conditions for making an adoption order are set out in section 47 of the 2002 Act. The Mother has been given leave to oppose the making of an adoption order. This means that I can only make the order if I dispense with parental consent. So far as this is concerned, pursuant to section 52(1), I can only do if I am satisfied that E's welfare requires his consent to be dispensed with. This is to be done afresh and in the light of the current circumstances (see McFarlane LJ in Re B-S [2013] EWCA Civ 813 at Paragraph [13]).
54. In relation to dispensing with consent, Wall LJ said in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at Paragraph 126:-

"Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child's welfare "requires" adoption as opposed to something short of adoption. A child's circumstances may "require" statutory intervention, perhaps may even "require" the indefinite or long-term removal of the child from the family and his or her placement with strangers but that is not to say that the same circumstances will necessarily "require" that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is "required" is adoption."

55. The case goes on to set out that "required" in this context means the connotation of the imperative. It is what is demanded rather than what is merely optional or reasonable or desirable. It is a stringent and demanding test. The court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of children unless there are cogent reasons to the contrary (Re O (Care or Supervision Order) [1996] 2 FLR 755 at 760.
56. Adopting a child is a draconian order. It is an extreme order, only to be made as a last resort when there is no other order compatible with the child's long term welfare (Re B [2013] UKSC 33). In short, nothing else will do (per Lady Hale at paragraph [198]). I entirely accept that this is because the interests of the child self-evidently require his relationship with his natural parents to be maintained unless no other course is possible in the child's interest (Lord Neuberger at Paragraphs [76] to [77]). Cutting off all contact and the relationship between the child and his family is only justified by the overriding necessity of the interests of the child (Lady Hale at Paragraph [198]).
57. The Court of Appeal considered the application of Re B in Re B-S (Children) [2013] EWCA Civ 965 and re-emphasised the stringency of the welfare test when considering whether to dispense with parental consent. The President, Sir James Munby, said that there is a necessity for a "holistic" and rigorous evaluation of all placement options before coming to a decision. I remind myself that Article 8 of the ECHR is engaged.
58. The President stated that the Court of Appeal had 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 before the court by both local authorities and guardians and in too many judgments. He said it was time to "call a halt". 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 and, in particular, the nature and extent of the risk of harm involved in each of the options (Paragraph [34]). 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 (Paragraph [36]). There must be adequately reasoned judgments (Paragraph [43]). The court rejected a linear approach whereby each option other than the most draconian is considered and rejected in isolation. Instead, a balancing exercise is required in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives. Each option should then be compared, side by side, against the competing option or options (Paragraphs [49] – [50]).
59. It is not sufficient merely to pay lip service to adoption being the most draconian order without engaging with the detail of the option as to do so would be nothing more than "formulaic window dressing".
60. It is also right to remember that an adopted child is treated in law as if he had been born as a child of the adopters (section 67 of the 2002 Act). The parental responsibility of the birth parents is extinguished (section 46). An adoption order is irrevocable except in exceptional circumstances. Post-adoption, the birth parents would have to seek the leave of the court to apply for a contact order to E. They would not have the right to make such an application (section 51A).
61. Having said all that, it is clear that HHJ Edwards applied the law entirely correctly when she made the placement order. She determined that, although draconian, adoption was the right order in this case at the time she made the placement order. She considered that nothing else would do. That order was not appealed. I have considered the matter carefully and I take the view that, on the evidence she heard, Judge Edwards was entirely right and correct to make the order she did.

The law as to post adoption contact

62. Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child. The court must consider any existing or proposed arrangements and obtain the views of the parties to the proceedings (section 46(6) of the 2002 Act).
63. There is a new section 51A of the 2002 Act which has been inserted by section 9 of the Children and Families Act 2014. It provides that a court making an order for adoption may make an order requiring the person in whose favour the adoption is made to allow the child to visit or stay with a person named in the order or for the named person and the child to have contact with each other. Under the new provisions, parents must seek the leave of the court to apply for such post-adoption contact.
64. It is however clear that the court will only do so when such an order is in the interests of the child concerned (see Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 62 at Paragraph 154). I will return to the law in this particular area later in this judgment.

Mr Blake's submissions as to the law

65. I must next deal briefly with Mr Blake's submissions that the law in Wales is different to that in England and his surprising submission that the order made by Judge Edwards was void ab initio. I accept that I have to deal with the second point, even though I am clear that it has no merit. I will also deal with the first point although I am equally clear that it would make no difference to my decision even if it was correct.
66. I accept unreservedly that the court has to give due regard to the voice of the child. The child's voice must always be heard. I am clear, however, that there is no difference in the law of adoption whether the case is heard in England or Wales. I reject Mr Blake's submission that this case raises some great point of legal principle. It does not.
67. His first submission is that the United Nations Convention on the Rights of the Child has been incorporated into Welsh family law and must be applied by all judges hearing a case in the Family Court in Wales. I do not agree.
68. It is right to note that the Rights of Children and Young Persons Measure (Wales) 2011 states the following at Paragraph 1 under the heading "Duty to have regard to the Convention on the Rights of the Child:-

(1) From the beginning of May 2014, the Welsh Ministers must, when exercising any of their functions, have due regard to the requirements of (a) Part I of the Convention….

(2) From the beginning of May 2012 until the end of April 2014, the Welsh Ministers must, in making any decision which falls within subsection (3) have due regard to the requirements of Part I of the Convention and the Protocols.

(3) A decision falls within this subsection if it is a decision about any of the following:-

(a) provisions proposed to be included in an enactment;

(b) formulation of new policy; and

(c) a review of or change to existing policy."

69. Mr Blake goes on to submit that "if the Executive and Legislature within Wales are mandated to give "due regard" to these rights, then a fortiori, so must the Judiciary". I do not understand that submission. Welsh Ministers are to have due regard to the Convention when they are exercising their functions. I am not exercising their functions. By way of example only, I am not considering provisions proposed to be included in an enactment of the Welsh Assembly. I am not formulating new policy. I am not reviewing or changing existing policy. I am applying the Adoption and Children Act 2002.
70. Family law is not devolved to the Welsh Assembly. The law that I have to apply as to adoption comes from Westminster, which has not enshrined the Convention on the Rights of the Child into English and Welsh law. It is right that social welfare law is devolved to the Welsh Assembly. It therefore follows that the Assembly can, for example, make regulations as to the procedure Local Authorities have to follow in relation to social welfare. The Assembly cannot, however, amend the Adoption and Children Act 2002 and that is the Act I am considering.
71. Mr Blake suggested in argument that I was bound by a decision of the Court of Appeal to the contrary. He was referring to Re P-S (Children) [2013] EWCA Civ 223 where Ward LJ said in Paragraph 35:-

"The UN Convention on the Rights of the Child has not been made a part of English law but the duty of the court is nonetheless to have (regard) to it when considering matters relating to it. The position may now be different in Wales because the …Convention…has become part of Welsh legislation by reason of the Rights of Children and Young Persons Measure (Wales) 2011 which came into force in May 2012. The Measure will shape all future policy decisions taken by Welsh Ministers."

72. It is clear from this that there is nothing inconsistent between what Ward LJ says and my view. He is merely saying that the position "may" be different in Wales because it will shape all future policy decisions taken by Welsh Ministers. In that respect, I agree. It does not, however, affect Welsh family law.
73. I have already indicated that a court must have due regard to the views of any child affected by a decision, in accordance with the child's age and maturity. These views can, of course, be taken in a number of different ways, including directly or through a representative body. In other words, the Local Authority, the Guardian and even the Mother are all in a position to do so. This is made clear in the subsequent Paragraphs of Re P-S.
74. I further accept without reservation that I must take fully into account the European Convention on Human Rights and, in particular, Article 6 (the right to a fair trial) and Article 8 (the right to family life). It is clear, however, from a number of decisions of the Supreme Court and the Court of Appeal, all of which are binding upon me, that the Adoption and Children Act 2002 is not incompatible with Convention rights, notwithstanding Article 8. The Court in Strasbourg has endorsed this position.
75. Mr Blake then argues that the voice of E's siblings was not heard by Judge Edwards. He says that, as a result, the order made by the Judge was void ab initio and therefore a nullity. He quotes Lord Bingham in Re B (Adoption Jurisdiction to Set Aside) [1995] 2 FLR 1 at Paragraph 11 where he says:-

"A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or for some other reason has not been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice…"

76. Apart from anything else, it is clear from the wording of this passage that an adoption order or placement order made even where there has been a failure of natural justice is not void. The court has the jurisdiction to set aside the order (so to that extent it might be said to be voidable) but until it is set aside it remains in full force and effect. For it to be otherwise would cause chaos. I am quite clear that the order of Judge Edwards is not void. It has not been appealed or set aside. It is a valid placement order that authorised placement with the applicants.

The voice of CB and DB

77. I now have to turn to the arguments advanced by both Mr Harris-Jenkins for CB and Mr Blake on behalf of the Mother that the voice of CB and DB was not properly heard before Judge Edwards and, if I agree, what effect that has on this application.
78. There is no doubt that Judge Edwards was fully aware of the existence of all four of E's siblings. The eldest, AB had put herself forward as a kinship carer for E. An initial assessment was undertaken but she was ruled out. The Judge was therefore fully aware that she had wished to care for E.
79. Both the Local Authority Social Worker and the Guardian had made significant efforts to elicit information from CB. For reasons that I entirely understand, CB was unresponsive. The Social Worker, Ms TT told me that she attempted to engage CB on a number of occasions without success. CB refused to speak about contact to E. When she did speak, she refused to go. The Social Worker accepted that she found it difficult to go. CB is good with art. The Social Worker suggested she put together a letter or piece of artwork for E but again CB did not do so. She told me that CB was aware of why E was accommodated. In cross-examination, she accepted that CB would have found it difficult but she tried to speak to her and she didn't want to. CB didn't engage with the process.
80. In essence, the Guardian said the same. She told me that CB was very difficult to engage and it was difficult to know how much to push her, given her vulnerability both socially and emotionally. She said it would not have been right to force her. The Guardian was confident she understood the nature of the proceedings.
81. CB gave evidence before me. In essence, she did not disagree with the evidence of the Social Worker and the Guardian. It was clear that it took a great deal of courage for her to come to court and state her position. She was accompanied by her boyfriend to support her. She was not sworn but simply answered questions in court from her counsel, Mr Harris-Jenkins. There was no cross-examination. She told me that she felt the Social Worker and the Guardian didn't engage with her. She accepted she wouldn't speak to them but said they didn't approach her in the right way. She said she didn't feel comfortable. She added that she wanted to be E's sister. She never said she didn't want to know him or that she didn't like him. She added that there was a lot they didn't see before E was taken into foster care. For example, she would talk to E and take him for walks in his buggy. I accept her evidence and pay tribute to her for coming to court to explain her position to me.
82. Nevertheless, I reject the suggestion that the Social Worker and Guardian were in some way culpable for failure to get CB to engage more. These were two professionals doing their very best. I find that they were in a very difficult position. I am not clear what more they could have done. CB was a vulnerable fifteen year old. I accept that they did not want to force her to do something against her wishes. It was suggested that they should have sent her to a solicitor but she was saying the opposite, namely that she did not want to be involved. She was spoken to regularly by TT.
83. Turning to DB, she was aged nine at the time. It is clear that both the Social Worker and the Guardian did engage her with far more success. She was reassured that E was safe, happy and well taken care of. She was happy to hear that. She was told that she could go with her Mother to have contact and she nodded to say she knew this. In fact, she only went twice, once before the final hearing and once after as a farewell contact. When asked why she didn't go in the summer holidays, she told TT that she did not wake up in time. I was slightly surprised by this. It may be an explanation for a fifteen year old not going but not for a nine year old. On one occasion, in answer to a question as to what she would want if she could have anything in the world, she said to move away (presumably from the Father) and to have E back. On another occasion, she said there was nothing she would change and she didn't really know.
84. I was referred to E's Child Assessment Report for Adoption prepared by TT. It says the following:-

"CB and DB, E's two sisters with whom he was living prior to accommodation have the opportunity to attend contact once a week, with their mother but choose not to. DB has attended only on one occasion; CB has not attended at all to date. Neither girl expresses concern for the accommodation of their brother. DB specifically will state that she only misses her brother "a little bit" and considers his accommodation to have given her mother the opportunity to at least sleep at night instead of waking up with him. CB has expressed little desire to see her brother and does not choose to attend. She does not participate in discussions about her brother and only merely shrugs her shoulders when asked what she feels about her brother and if she misses him."

85. I do not consider that this gave the right impression as to DB's position. I do not find that she only missed her brother a "little bit". I find that it is regrettable that it said this. It is also right to note that the report of the Guardian, MM, does not specifically deal with the position of CB and DB. This was wrong, particularly given section 1(4)(f) of the Adoption and Children Act 2002 which requires the court to consider the relationship which the child has with relatives and in particular "the wishes and feelings of any of the child's relatives…regarding the child". It is, however, right to note that the Guardian did require the Local Authority to amend its care plan to include letterbox contact. Indeed, life story book work to include photographs and details of E's birth family is referred to in her report.
86. What effect does this have on the order of Judge Edwards? It is clear that Judge Edwards was very concerned about the position of CB and DB. Her primary concern, however, was not that their existence was a reason for returning E to his birth family but the opposite, namely her apparent view at the time that CB and DB should follow him out of the Mother's care. I do not criticise the Local Authority for not having issued care proceedings before September 2013 in relation to both girls. Given their ages, very different considerations applied to them than applied to E. It was unfortunate though in that, if care proceedings had been issued at the same time in relation to all three, the views of all three would undoubtedly have been to the forefront of the Judge's thinking.
87. I take the view that there should have been greater consideration of this issue before Judge Edwards. The fact that there was not does not, however, invalidate her order. A very similar issue arose before me in the case of The Prospective Adopters v IA and Another [2014] EWHC 331 where it was alleged that the placement order was fundamentally flawed. I was able to cure the alleged defect by granting permission to oppose the adoption. This allowed the matter to be fully considered at the adoption hearing. This is exactly what has happened here. Moreover, I also granted CB party status. I am quite clear that the views and position of both CB and DB have been fully canvassed before me. I am quite satisfied that the defect has therefore been cured prior to an adoption order being made.

The evidence

88. I heard from the Social Worker, TT and the Team Manager of the Adoption Team, IP. I heard from the Mother and her support worker from Women's Aid, MQ. The Father gave evidence as did the Guardian, MM. Her report includes a comprehensive assessment of the benefits and detriments of the various options, which I have considered carefully. As I have already indicated, I also heard from CB.
89. Other than the evidence as to CB's position which I have considered above, the evidence fell into two distinct categories. The first category related to the position of E in his adoptive placement and the likely effect on him of a move. The second concerned the position of the Mother and the Father.
90. I will deal first with the evidence as to E in his placement. The Annex A report is entirely positive as to his integration with the applicants. He has undoubtedly settled well into the placement and has formed secure attachments. He looks to them for attention and emotional warmth at times of both distress and happiness. He calls them mummy and daddy. He has been with them in excess of a year, which is now over half his life. I am quite sure he has no significant memory of his birth parents or his siblings. He has not lived with his Mother for approximately eighteen months and has not seen her since December 2013.
91. TT told me that the adopters are quite stressed by these proceedings. They have unsurprisingly found them "anxiety provoking" but have protected E from the stress the best they possibly could. She said E is doing brilliantly. He is meeting and surpassing his milestones. There is no evidence of any sense of loss or grief from being separated from his birth family. He would find it traumatic to be removed from the placement he is in now. His connection there is as strong as it could be. It would be very detrimental to his welfare to remove him. I accept this evidence.
92. I realise how much both parents love E. I make it quite clear that I have no doubt that CB and DB love him equally as well. I do not believe, however, that the Mother in particular was able to appreciate the devastating effect moving E from the applicants at this point would have on him. In answer to questions from Ms Waldron for the Local Authority, she said that she "imagined removing him would be painful and traumatic" but I did not gain the impression that she had any real insight into this. She said she would like a smooth transition but it was clear that she thought this could be achieved easily and within a short period. I do not necessarily criticise her for this. It is understandable that she might think this. Regrettably, she is completely wrong. I find that E would be completely devastated by a move now. It would have enormous long term repercussions for him.
93. The Father, in my view, had more insight. He said that he didn't completely think it would be in E's best interests to remove him from the applicants. He told me he could understand their position, mentioning how long E had been there. He ended, very poignantly, that it breaks his heart. He then showed entirely understandable emotion. This approach goes to his credit.
94. Turning to the evidence surrounding the current position of the Mother and the Father, the Local Authority and Guardian essentially base their respective cases on four separate factors:-

(a) The untested nature of the Mother's change of circumstances and the real danger of a future relapse given everything that has gone before;

(b) The dishonesty of the Mother in the past and her alleged failure even now to acknowledge the true position;

(c) The dangers to E's stability if the Father was to get involved with the Mother and her family again were E to be placed with them; and

(d) Their argument that the changes the Mother has made have come too late for E.

95. I do accept that the Mother has made changes from the position she was in at the time of the hearing before Judge Edwards. It may well be that, confronted with E's removal and the real threat of the removal of CB and DB, forced her to confront her demons. In October 2013, she was still binge drinking. I recognise that she has been entirely clear of alcohol and other illegal substances since then. That is to her credit. I also accept that she has ended her relationship with the Father. That is also to her credit. I do not accept, however, that this is a damascene conversion. This just puts her back in the position that she has been on many occasions in the past. In 2008, she took exactly the same steps to secure the return of the girls to her care but relatively shortly thereafter lapsed back to her old ways. She has had significant help from professionals going back over sixteen years. She has had assistance from a drug and alcohol support agency since 2007. Yet, she relapsed and formed an entirely inappropriate relationship with the Father. She let down her children again. E was even conceived in breach of an agreement with the Local Authority to have no contact with the Father. I realise this is hard but she simply did not learn the lesson from the girls being taken into care in 2008 and, in the light of the history, it is impossible to say she has learned it now. There is clearly still a very substantial risk of relapse. The judgment of Judge Edwards remains pertinent. The Local Authority and Guardian are entirely right to be very cautious.
96. I am equally persuaded that their concerns as to her dishonesty in the past and her lack of insight now remain as a significant concern. I am bound by the findings of Judge Edwards. The Mother is an intelligent woman. She understands fully the findings Judge Edwards made yet her evidence to me was exactly the same evidence that she gave Judge Edwards in a significant number of respects and on which she had been disbelieved. These included the number of times she had met the Father; the number of times they had sexual intercourse; the amount of drinking and the level of violence. She did say she accepted there were things that she omitted to tell the Local Authority but I did not gain the impression that she was really accepting responsibility. In the earlier proceedings, she had accepted that if she had E with her the Father would not stop trying to seek her out. She denied that this would be a problem when she gave evidence to me. She was found by Judge Edwards to be someone who needs to be in a relationship. She denied this to me saying she was quite happy being single and would not make the same mistakes again. Regrettably, I do not have sufficient confidence that this is the case.
97. She said she had paid the ultimate price and "you do not go through that and not learn or change". But she paid a heavy price when the girls were taken away from her in 2008 but her changes were short term and she did not change for ever. In final submissions, Ms Waldron said that "the Mother still does not appear to make any real acknowledgment of her part in what happened". Having heard her evidence, I regret to say that I agree. Sadly, I conclude the Local Authority and the Guardian are correct in so far as they rely on lack of insight.
98. The third point relates to the Father. It is right that he has not sought the Mother out since the hearing before Judge Edwards. For this, he is entitled to credit. But it has been far easier given that E is not there. He tells me he has turned over a new leaf as well, since his release from prison. I hope this is the case but I am sceptical. He appears still to be drinking, even if it is only occasionally. The Guardian thought he had been drinking when she saw him and I find his denials unconvincing.
99. I do fear that the position would be very different if E was in the Mother's household. E is his only child. Judge Edwards found that he would be bound to seek E out again and would always try to parent E. I agree. I do not think he could prevent himself from doing so as this would involve him accepting very limited supervised contact. The Mother's response was to say that the restraining order would protect her but this is a very naïve position, particularly given all the difficulties that occurred before. I would have very serious concerns for the welfare of E and the older girls.
100. Finally, there is the point that all changes made by the Mother are too late. She was warned by HHJ Judge John that she was in the last chance saloon. She failed to take the warning. She lost E. Even before Judge Edwards, it was clear that any changes she made would not be within E's timescales. Nearly eighteen months have passed. There would still be considerable work to do even if E could be returned to her care. I am not sure the Social Worker and Guardian were right when they referred to years but they are right that it could not be done tomorrow. This is all far too late for this little boy. It is hard to say but the Mother had her chance and she did not take it.

My conclusions

101. My paramount concern is E's welfare throughout his life. I have come to two very clear conclusions. The first is important but the second is far more important. The first is that the Local Authority and the Guardian have made out their case as to the risks inherent in any return to Mother being very considerable. The second, however, relates to the absolutely devastating impact on E were he to be removed from the applicants at this stage. He has become part of their family. He now does not know his birth family. He cannot simply be uprooted. He is not a baby. Equally, he is not the same age as DB.
102. Mr Blake submitted to me that there would be no difficulty as the applicants, as good loving people, would be able to facilitate his gradual return to his Mother. I accept, of course, that they are good loving people but I consider that the analogy that I made in submissions, when he raised this argument, is a fair one. It would be like asking birth parents whose child had been placed for adoption to facilitate the move to the adopters. It is impossible to imagine how distraught they would be. I consider that this would make E distraught as well. Such an arrangement would not be possible. He would therefore have to move to another foster placement with no guarantee that he would be able to move back to his Mother permanently. I cannot imagine anything more detrimental to his welfare.
103. When this is placed alongside my findings as to the continuing concerns about the Mother, the position becomes overwhelming. The simple fact is that the Mother's changes have come too late. The Mother was warned as to her conduct. I accept that an adoption order means a permanent separation from E's birth family and he may well experience conflicting emotions of loss over the years ahead. Every other point, however, goes strongly in favour of adoption. I have set them all out above. I have no doubt that E would suffer significant harm if he was now moved from the applicants. When all matters are considered, I find that no other order other than adoption will do. Even though it is a draconian order, it is the only order that can be made in this case to secure E's welfare. It follows that I am quite clear that E's welfare requires me to dispense with the Mother's consent. I do not believe I need to do so in relation to the Father as he does not have parental responsibility but, if I am wrong about that, I would dispense with his consent as well.
104. I reject the submission that the position of CB and DB requires me to come to a different conclusion. I consider that if more emphasis had been placed on their views before Judge Edwards, she would still have come to exactly the same conclusions given E's welfare. The Judge would, after all, have been considering the elder girls' wishes in circumstances where she, at least, thought that they too might well have to be removed from the Mother's care.
105. I do not consider that the Judge would have insisted on attempts being made to find an open adoptive placement for E given the difficulties inherent in doing so and the fact that the Mother in particular has never accepted adoption. But, in any event, as Mr Prosser submitted to me, we are where we are. It is a very regrettable consequence of the history of this case that E's welfare decisively trumps the Article 8 rights to family life. Whilst unfortunate, it is now inevitable. There will, of course, have to be careful life story work. I could, if I thought it right, make a contact order to E's siblings. Exceptionally, I can even do this if the applicants do not agree. I must therefore now turn to the issue of contact following adoption.

Contact

106. In commencing this part of my judgment, I must refer briefly to the submissions on behalf of the Mother that, even if I accede to the adoption application, I should order some sort of shared parenting arrangement between her and the applicants. I reject such a solution absolutely. It is entirely inconsistent with the adoption order I would be making. If it were right, I would not be making an adoption order at all and I am quite clear that I must do so in E's interests for all the reasons I have given.
107. There are certain circumstances in which it is appropriate for there to be an open adoption but I am clear that this is not one. Again, it is for all the reasons I have given but by far and away the most important is that the Mother does not accept the adoptive placement. This of itself would be fatal to anything other than identity contact as it would run the real risk of jeopardising the stability of the adoptive placement. It therefore follows that, if there was to be contact, it would be for identity purposes only. Indeed, it is clear that this is the position in the vast majority of cases where there is post-adoption contact.
108. I was referred to research by the University of East Anglia as to outcomes for children following adoption. Of the cases studied, there was no contact in 11%. There was letterbox contact in 80%. There was face to face contact with adult birth relatives in 17% but only 9% was with a birth parent and then it was usually once or twice per annum, often for brief periods. A high level of contact is extremely unusual. There are significant challenges to introducing contact when the child has no memory of a birth parent. It requires a high level of management. It can be very distressing and confusing for the child. The applicants would, in general, be expected to make the arrangements. This can cause difficulties in managing the emotions of the birth family so as to protect the boundaries of the adoptive family. In a serial number adoption, such as here, this would almost certainly lead to a lifting of the veil of anonymity. I have concluded that this would all be impossible in this case where there has been such a high degree of conflict. Mr Jones for the applicants submitted to me that it was asking far too much of the adopters. I agree.
109. I was also referred to the authorities, including T (A child) [2010] EWCA Civ 1527 and Oxfordshire County Council v X, Y and J [2010 EWCA Civ 581 (Civ). It remains extremely unusual to impose a contact order on prospective adopters which they are not in agreement with. In the recent case of MF v LB of Brent [2013] EWHC 1838 (Fam), Ryder LJ (sitting as a High Court Judge) said "if the court had to choose between adoption and contact…. I would unhesitatingly choose adoption for this young man".
110. The fact that the applicants are reasonable people and have said that they would listen to the advice of professionals does not lead to a finding that it would be right to impose an order upon them against their wishes. After all, the professionals involved (both Guardian and Social Worker) have been against such contact.
111. I am clear that the only contact that should take place should be letterbox contact in accordance with the original care plan approved by Judge Edwards. Anything else would run the real risk of undermining the placement to the huge detriment of E. Even if the contact was only to DB and CB, it would be extremely difficult to ensure confidentiality to the Applicants, particularly as E got older.
112. I realise this will be a blow for CB and DB as well as for the Mother and Father but I consider that, in the specific circumstances of this case, the severance of E's legal ties with his birth family is the only order I can make to promote his welfare throughout his life notwithstanding Article 8 and the position of the birth family. Inevitably, I have come to this conclusion reluctantly but I am clear that it is the only order that will provide the stability in his adoptive placement that E needs. Direct contact is not something I should impose upon these Applicants.

Conclusion

113. It follows that for all the reasons I give above, I conclude that I must make an adoption order. This has been a very emotional case for everyone involved. I realise my decision will be very hard for the birth parents and for CB and DB to accept. It is often the unpleasant duty of a judge to make such a decision and I have done so. I have not however had any doubt as to my conclusion. It is the only outcome to which I could come that is consistent with the welfare of E throughout his life.