England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/02/2015

MR JUSTICE MOSTYN

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Mostyn :

1. This is a case with a long and complex history. It has involved proceedings:

i) under section 31 Children Act 1989 concerning the four children of TB (the mother) and SA (the father);

ii) under section 31 Children Act 1989 concerning the child of the father and his second (polygamous) wife (SSB), his first cousin; and

iii) in the Court of Protection under the Mental Capacity Act 2005 concerning the mother.

2. There are five relevant prior judgments as follows:

i) By Judge O'Dwyer dated 29 January 2010 following a fact-finding hearing concerning the four elder children.

ii) By Judge O'Dwyer dated 20 July 2010 where he adjourned the disposal hearing for further assessments.

iii) By Judge O'Dwyer dated 17 January 2011 where he made final care orders in respect of all four children and placement (for adoption) orders in respect of the younger two.

iv) By me dated 13 September 2013 where I made a supervision order in respect of the child of the father and SSB. Following that judgment a further child was born to the SSB and the father.

v) By me dated 17 December 2014 in the Court of Protection reported as London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 53. By that judgment, inter alia, I found that the mother lacked capacity and directed that the local authority should find a supervised placement for her away from the father but with limited contact in his favour.

3. The father is 42. The mother is 41. The four children of the mother and father are STH, born on 1 October 2001, a girl (13); STM, born on 17 March 2003, a girl (12); SSM, born on 7 January 2009, a boy (6); and SHT, born on 22 January 2010, a boy (5). The two children of the father and SSB are YSY born on 22 June 2012, a girl (2) and ISS born on 3 March 2014, a girl (11 months).
4. The background is set out in paragraphs 1 – 18 of my judgment dated 17 December 2014 which anyone reading this judgment should read at this point.
5. At para 8 I stated (by reference to an earlier interim judgment by me):

"… the parties began in 1999 or 2000 their married life, this man and this incapacitated woman, and they had four children: STH, born on 1 October 2001, a girl; STM, born on 17 March 2003, a girl; SSM, born on 7 January 2009, a boy; and SHT, born on 22 January 2010, a boy. All these children were the subject of care proceedings mounted by the London Borough of Tower Hamlets against this mother and this father. Those proceedings were heard over many days and many occasions by Judge O'Dwyer and resulted in a fact finding judgment on 29 January 2010 and two further judgments on 20 July 2010 and 17 January 2011. The consequence of those three judgments were that all the children were removed permanently from these parents and have been placed for adoption … In the course of his first judgment on 29 January 2010, the judge made what he described as grave findings against both parents but principally against the father, he having recognised in relation to the mother that she had disability, was unable to represent herself, that she has always lacked capacity to care for her children, and she is in receipt of a great deal of support from the local authority."

6. At para 9 I stated:

"So far as SA is concerned he remains living at 9 Emerald Mansions. There he is visited on 2 or 3 occasions each week for 4 to 5 hours by SSB, YSY and ISS. If SSB goes out he looks after his daughters unaided. Additionally he socialises in public places with SSB, doing things like shopping. He intends to play a full part in the upbringing of his daughters."

7. And at paras 13 and 14:

"The four children of TB and SA are all in care. STH (13) and STM (11) are in the same placement and the plan for them is long term fostering. SA has contact with them once every four months for 1½ hours. The plan for SSM (nearly 6) and SHT (nearly 5) was adoption. It has not been possible to find adopters for SHT, and so he being matched with his current carers for long term foster care. SSM has been placed with adopters and an adoption application has been made. Pursuant to section 47(5) Adoption and Children Act 2002 SA seeks leave to oppose the application. By an order made by Judge O'Dwyer, with my consent, dated 4 December 2014 that application and the adoption application itself are allocated to be heard by me, and will be in the New Year. Obviously I say nothing about the likely result of those applications other than to observe that SSM has been with his current carers since he was 5 days old.

There is inter-sibling contact and this will continue if SSM is adopted."

8. And at para 18:

"It would appear that [SSB's] application [for indefinite leave to remain] has been denied and that she has mounted an appeal. The appeal is to be heard on 12 December 2014. If that fails she will make a different application within the Immigration Rules for leave to remain. As with immigration law and procedure generally the picture is extremely murky. However, on any view she and the children have a good prospect of being allowed to stay here."

9. I have been informed that on 12 December 2014 SSB was granted indefinite leave to remain in the UK.
10. This is my judgment on the application for the adoption of SSM. As indicated above the father seeks leave to oppose the application pursuant to section 47(5) Adoption and Children Act 2002. I have earlier directed that the father's application and the adoption application itself be dealt with at one rolled-up hearing. I have also directed that if an adoption order is made I will abridge all time and other formalities to consider an application by the father for post-adoption contact pursuant to section 51A of the 2002 Act. However, the parties have agreed that if an adoption order is made there will be direct supervised contact between the father and SSM on two occasions a year (in contrast to the three occasions which he presently enjoys). Putting legal and psychological consequences aside that reduction from 3 to 2 occasions is the only practical difference that will occur if the order is made.
11. The Official Solicitor, who represents the mother, has written to the court to say that she there is no case to be made on her behalf within the adoption proceedings. The mother has not been represented in the proceedings.
12. I heard first submissions on the father's application for leave. I then invited submissions on the hypothesis that the leave application were to be granted. I gave Miss Markham who represents the father the last word and offered her as long as she liked to make all the submissions she wished. The parties agreed that the matter should be dealt with without oral evidence. There was an excellent single bundle which contained all the relevant material including a focused guardian's report. All four counsel provided outstanding skeleton arguments and the quality of their oral submissions was of equal quality.

Leave under section 47(5): the legal principles

13. So far as is material section 47 provides:

(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).

…

(4) The second condition is that—

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,

(b) either—

(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or

(ii) the child was placed for adoption under a placement order, and

(c) no parent or guardian opposes the making of the adoption order.

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.

…

(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.

14. Before I examine the authorities which specifically relate to this provision I intend to look at these statutory provisions from first principles.
15. Where, as here, the second condition applies because the child was placed for adoption under a placement order there is a threshold condition of "a change in circumstances since the placement order was made". The applicant parent has to prove this before the court can move to consider whether leave should be granted to oppose the making of the adoption order.
16. Obviously the words "a change in circumstances" are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.
17. In the well-known case of K v K [1961] 1 WLR 802 the court was concerned with section 1(3) of the Maintenance Orders Act 1950 which provided:

"Where an agreement to which this section applies is for the time being subsisting … and on an application by either party the High Court … is satisfied either (a) that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made … the agreement should be altered so as to make different … financial arrangements … the court may by order make such alterations in the agreement … as may appear to the court to be just in all the circumstances …"

18. In its judgment the Court of Appeal held that changes which were foreseen or foreseeable at the time of the agreement did not fall within the terms of section 1(3). Holroyd Pearce LJ stated:

"We think that a change in "the circumstances in the light of which any financial arrangements were made" means something quite outside the realisation of expectations. The parties make their bargain upon certain basic facts and expectations. When those facts unexpectedly change, or those expectations are not realised, there is then a change of circumstances which may produce unfairness. Had the legislature intended to give a power to the court to vary agreements as it may vary maintenance orders, it could have said so in terms similar to the sections which regulate variation of maintenance. It did not, we think, intend to remove entirely the stability of agreements, but only to do so when injustice was caused by a change in certain circumstances."

19. This decision led the Law Commission in 1969 to recommend that the provision be altered to include a change of circumstances which the parties had actually foreseen when they made their agreement. This change was duly enacted in section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970 (now section 35(2)(a) Matrimonial Causes Act 1973). The fact that Parliament had to intervene in this specific case shows to my mind that where a provision talks of a change of circumstances it is talking about an unexpected change in the basic facts and expectations on which the court founded its original decision.
20. Once such a change has been proven the court then has a "discretion" whether to grant leave. Sometimes the nature of the dispute and the facts that are found will to all intents and purposes determine the exercise of the supposed discretion. In such a case the court is not really exercising a discretion at all. This will be so in public law proceedings under section 31 of the Children Act 1989 where the fact finding will have determined whether the threshold of significant harm has been crossed. If so, the findings will effectively determine whether a care order, a supervision order or no order should be made. In private law proceedings the process will be the same where the dispute is as to which parent should be the primary care-giver, or whether the primary care-giver should be given permission to relocate overseas. It is the case in abduction proceedings where a defence is successfully mounted under Article 12 or 13 of the 1980 Hague Convention. Proof of the ground of defence of, for example, the child's objections to a return order only opens the door to the exercise of discretion, but that exercise will almost invariably be in favour of a non-return.
21. In Re LC (Children) [2014] UKSC 1 one of the issues was whether a child should have been joined to the proceedings under FPR rule 16.2 FPR which provides that "the court may make a child a party to proceedings if it considers it is in the best interests of the child to do so." Lord Wilson stated at para 45:

"If, and only if, the court considers that it is in the best interests of the child to make her (or him) a party, the door opens upon a discretion to make her so. No doubt it is the sort of discretion, occasionally found in procedural rules, which is more theoretical than real: the nature of the threshold conclusion will almost always drive the exercise of the resultant discretion."

22. On the other hand there will obviously be cases where the nature of the threshold conclusion will not necessarily drive the exercise of the resultant discretion, and this will particularly be so where the threshold condition is a change of circumstances since the original order or agreement. In a case concerning the future of a child the best interests principle in section 1(1) of the Children Act, or the enhanced best interests principle in section 1(2) of the Adoption and Children Act 2002, will be dominant. It is easy to see that even where an unexpected change in the basic facts and expectations that underpinned the original order have been proved, it would nonetheless be contrary to the child's best interest for leave to oppose to be granted.
23. That the process is one of judicial evaluation rather than the exercise of a "discretion" is demonstrated by the decision of the Supreme Court of New Zealand in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1, [2010] NZFLR 884, a relocation case, at paras 32 and 35, and by the seminal decision of Re B-S (Children) [2013] EWCA Civ 1146 [2014] 1 WLR 563, which directly concerns section 47 Adoption and Children Act 2002. At para 72 Sir James Munby P stated "the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion" (his emphasis).
24. The leading appellate authorities concerning an application under section 47(5) are:

i) Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069

ii) Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153

iii) Re B-S (Children) [2013] EWCA Civ 1146 [2014] 1 WLR 563

25. In Re P Wall LJ, giving the judgment of the court, stated at para 26:

"In our judgment, analysis of the statutory language in ss 1 and 47 of the 2002 Act leads to the conclusion that an application for leave to defend adoption proceedings under s 47(5) of the 2002 Act involves a two-stage process. First of all, the court has to be satisfied, on the facts of the case, that there has been a change in circumstances within s 47(7). If there has been no change in circumstances, that is the end of the matter, and the application fails. If, however, there has been a change in circumstances within s 47(7) then the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings is opened, and the decision whether or not to grant leave is governed by s 1 of the 2002 Act. In other words, 'the paramount consideration of the court must be the child's welfare throughout his life'."

And at para 30:

"The change in circumstances since the placement order was made must … be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings."

And at para 32:

"We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents in the position of S's parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable. We therefore take the view that whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application."

And at para 35:

"Thus, even if the parents are able, on the facts, to identify a change in circumstances sufficient to make it appropriate for the judge to consider whether or not to exercise his discretion to permit the parents to defend the adoption proceedings, the paramount consideration of the court in the actual exercise of the discretion must be the welfare of S throughout her life and, in that context, the court must have regard in particular to the matters set out in s 1(4) of the 2002 Act."

26. In Re W, Thorpe LJ stated at para 20:

"where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family. Of course, each case will depend upon its particular facts. The present case may be said to be a strong case in the sense that the mother had had no sight of J since the summer of 2007. J had been placed for over a year. J had been told of and had reacted to the making of the adoption order in the spring. To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child. So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity."

Plainly nothing said there was inconsistent with Re P. However, at para 28 Thorpe LJ stated that in his view a "stringent approach" was necessary, and earlier at para 17 that after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application permission to oppose will only be granted "in exceptionally rare circumstances".

27. In Re B-S at para 68 the Court of Appeal disapproved of these two glosses of Thorpe LJ and stated that "both phrases are apt to mislead, with potentially serious adverse consequences … Neither, in our judgment, any longer has any place in this context. Their use in relation to section 47(5) should cease".
28. Re B-S added nothing to what the Court of Appeal in Re P had said concerning the first stage of the test (see para 73). Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order.
29. There is this further point. Sometimes, as here, the applicant parent relies on a number of changes of circumstances. As I will find here, one of the changes of circumstances will satisfy the test which I have identified, but the others will not. The question then arises whether the rejected changes can nonetheless enter the arena in the second stage. In my judgment they cannot, for that would seriously undermine the intention of Parliament when devising this legislation.
30. The decisions of Re P and Re W make clear that the evaluative exercise on a section 47(5) application is not driven by the findings made about qualifying changes in circumstances. There is an important second stage where those findings will be placed in the scales of a holistic best interests balancing exercise. In Re B-S the Court of Appeal summarised the relevant principles and considerations pertaining to the second stage at para 74:

"In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:

i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent's care.

ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.

iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the "last resort" and only permissible if "nothing else will do" and that, as Lord Neuberger emphasised, the child's interests include being brought up by the parents or wider family unless the overriding requirements of the child's welfare make that not possible. That said, the child's welfare is paramount.

iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ's 'balance sheet' is to be encouraged.

v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.

vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be if leave to oppose is to be refused.

vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.

viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that "the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems." That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.

x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: "the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable."

31. I have to say that there are aspects of this deriving from points (iii) and (vi) which I find problematic. They appear to say that there are in fact three, not two, stages namely:

i) Whether there has been a qualifying change of circumstances; and if so

ii) Whether the applicant has shown prospects of success of opposing the adoption order which have substance and solidity; and

iii) Whether it would nonetheless be in the child's best interests to grant leave.

32. It seems to me that the second question namely whether the applicant can show solid and substantial prospects of success were leave to be granted must surely be decided by reference to the overarching welfare principle, as para 26 of Re P makes clear. I do not understand therefore why it appears to feature as a separate third stage.
33. I shall decide this case strictly by reference to the two stage exercise that the authorities mandate. The welfare principle will dominate the second stage.

This case: the first stage

34. Miss Markham relies on the following changes of circumstances since the placement order was made on 17 January 2011:

i) He has formed a second (invalid and polygamous) marriage to SSB by whom he has had two children YSY and ISS who he is caring for as a secondary carer. YSY is no longer subject to a protective order and ISS never has been. Although he does not share a home with SSB his marriage to her is stable. No-one has ever suggested that domestic violence has featured in it.

ii) Contrary to the plan and expectation that SHT would be adopted this has not happened, because he has acute needs that have prevented him from being found new adoptive parents. He will stay with his current foster parents who either cannot or will not adopt him. Therefore adoption for SSM is a unique treatment which is not to afforded to any of his full siblings. The effect of adoption is to sever legal ties with all his siblings. They will no longer be his legal brothers and sisters.

iii) He has shown that, in contrast to the findings of Judge O'Dwyer, that he can work closely and co-operatively with professionals. He particularly relies on the report of the social worker Tony Stanley dated 2 February 2015 who had been assigned to the case concerning YSY. There have been no concerns regarding his conduct during contact sessions.

iv) He has successfully completed the first year of a two year NVQ childcare course.

35. I am not satisfied that the second, third or fourth grounds amount to qualifying changes of circumstances. In order to explain why it is necessary for me to set out certain key passages from the judgment of Judge O'Dwyer

"14. I am satisfied that taking the above matters into account the welfare of the boys both emotional and physical requires that the boys should be placed for adoption. No lesser order will do or can be managed for the welfare of the children.

…

51. The father has not been able to change. He has not recognised his problems. His own evidence adamantly affirms this. It is clear he is not able to work successfully with professionals to assist the children. Despite some protestations in his oral evidence that he would accept assistance from professionals and work with them, it was clear that this would only be on his own terms.

52. It was clear from the Coral assessment that he is not able to accept and act on advice given to him without becoming angry and defensive. They concluded: "Based around our observations of contact, we gave advice and made suggestions to Mr A to support him to develop his parenting skills, but he was unable to accept these, however innocuous. We remain deeply concerned for the welfare of all the children during contact as our observations indicate that their father struggles to provide them with a safe and contained environment, even within a contact centre and with a supervisor present. He presented at times as very angry and controlling, and the behaviour of the children indicates that they are regulating their behaviour so as to optimise their interactions with their father, rather than that he is adapting and responding to their needs."

53. The Local Authority submit and I accept that Mr A lacks empathy and understanding of the children's needs or an ability to react flexibly in order to provide for them both practically and emotionally. They refer to the Coral Assessment "Given Mr A's presentation over the course of this assessment, the extent of his denial regarding the concerns in the judgement, and his tack of insight into, and attunement with, his children's needs, it seems very unlikely that he would be able to provide 'good enough' caring for any of his children, even within the context of a robust ongoing professional presence within the family home." In my judgment that is manifestly well founded.

54. The Local Authority submit that the court can conclude upon all the evidence and taking into account the welfare checklist that care orders should he made in respect of all four children upon the final care plans proposed. The contact proposed between the parents and the children is appropriate (and approved by the children's guardian). Placement orders are appropriate in respect to the boys. They are vital in order to pursue the long term placement proposals of the Local Authority. Applying Section 52(1) (b) Adoption and Children Act 2002 it is submitted that the children's' welfare requires that parental consent is dispensed with. I find it is imperative that it is dispensed with as the boys require the long term placement plan for adoption as proposed by the Local Authority and supported by the children's Guardian. As will have been seen I accept these propositions."

36. I do not accept that because the plan for SHT has altered that this amounts to an unexpected change in the basic facts or expectations that underpinned the placement orders. By its nature a placement order does no more than to allow the adoption process to commence; it does not mandate that it must be concluded by an adoption order. It is known that sadly many children cannot be placed for adoption because of their needs.
37. I do not accept that because the legal effect of adoption in a technical, as opposed to natural, way cuts the formal ties of brotherhood, that this in any way can amount to a qualifying change of circumstance. The plan accepted by Judge O'Dwyer would have had that effect anyway so far as SSM was concerned. That his brother SHT will retain the formal legal tie of brotherhood with his sisters is to my mind neither here nor there.
38. I do not accept that because the father has worked better with professionals that this amounts to a qualifying change of circumstances. It is worth my noting that in my Court of Protection judgment at para 11 I recorded some disturbing aspects to the father's conduct when he had contact with the mother. Mr Stanley however said this in his report:

"I found Mr A increasingly able to manage his moods and behaviours at times of stress. I experienced him, on the whole, to be willing to work with me. Mr A explained to me that he felt powerless and voiceless in a system of social services and courts, where decisions affected him so gravely. Nevertheless, earlier reports of his aggression and anger toward professionals was not my experience. Mr A conducted himself in case conferences, core groups and other meetings in a calm manner. I directly challenged him on several occasions, as did Ms B (about the money he had promised) and he maintained his calm."

39. This is to be set against Judge O'Dwyer's finding that "it is clear he is not able to work successfully with professionals to assist the children." It is much to the father's credit that he has been able to mend his ways in this regard. However, such an improvement is surely not unexpected. Even if it were it does not follow that this was a change in the basic facts and expectations that underpinned the order. Put another way, had Judge O'Dwyer known that four years on the father would have conducted himself with professionals in a calm manner it would not have altered his decision in any respect.
40. The father's NVQ course is not a relevant change of circumstances. This was not even mentioned in his witness statement.
41. I do however find that the first ground does amount to a qualifying change of circumstances. The key finding in para 53 was that "it seems very unlikely that he would be able to provide 'good enough' caring for any of his children, even within the context of a robust ongoing professional presence within the family home". Had Judge O'Dwyer been able to foresee that four years on he would be successfully co-parenting two very young children, he might (and I emphasise might) have reached a different decision about making a placement order although I have no doubt that he would have reached the same decision about making a final care order.

The second stage

42. I therefore bring this qualifying change of circumstances into the scales of the holistic best interests balancing exercise and ask myself whether the father has substantial and solid prospects of success of opposing the making of an adoption order.
43. I remind myself that in Re B [2013] 1 WLR 1911, a decision of the Supreme Court, in para 198, Lady Hale stated:

"Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do." (her emphasis)

44. In the recent decision of Re R (A Child) [2014] EWCA Civ 1625 the President has warned against an over-literal interpretation of these words. He stated at para 44:

"I wish to emphasise, with as much force as possible, that Re B-S was not intended to change and has not changed the law. Where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do, and it is essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs."

45. And at para 60 he drove the point home where he stated ""Nothing else will do" does not mean that "everything else" has to be considered" (his emphasis).
46. I also remind myself that four years ago, following a very detailed enquiry, Judge O'Dwyer concluded that "no lesser order [than placement for adoption] will do or can be managed for the welfare of the children".
47. It seems to me that the father can place in the scales in his favour three matters:

i) The qualifying change of circumstances which I have accepted. He argues that events have proved that with the help of his second wife SSB he is perfectly capable of caring for a small child. Here he is strongly supported by the evidence of SSB.

ii) The final and irrevocable nature of an adoption order which severs all legal ties between him and SSM as well as severing the legal ties between him and his brothers and sisters. He asks that if adoption is not being proposed for STH, STM, and SHT then how can it be said that "nothing else will do" for SSM?

iii) The initial reluctance of the proposed adopters to seek adoption, preferring instead to remain as long term foster-parents. In their statement the adopters said this

"We requested that SSM be placed with us as a long term foster Child but were told that due to his hyperactivity he would be moved to younger foster carers, but we could adopt SSM as we were not too old for adoption, subject to being approved. We found this logic extremely strange and nonsensical, but could not allow the potential risk to SSM of being moved from our care. We felt the Local Authority emotionally gave us no choice but to secure SSM's placement by way of an Adoption Order."

Accordingly, the father argues with some force, that if the adopters did not want an adoption order then why is it so important now that they should have one?

48. The local authority, the guardian and the prospective adopters all strongly argue that the father has no realistic prospects of success in opposing an adoption order and that he therefore fails the second stage of the test.
49. The first point that is made is that the father's stance is, in practical terms, unreal. They rely on my finding at para 11 of my judgment of 13 September 2013 concerning YSY where I stated:

"Having regard to the findings made against father in the previous proceedings it is completely impossible that he could be considered as the sole carer… and were a situation ever to present where it appeared that the father had assumed, either completely or largely primary care… I would expect the local authority to take steps to apply for a care order"

50. I do not resile from that view in the slightest. There is no prospect whatever of SSM being returned to the care of his father in the foreseeable future. However, the father's stance is not completely academic. Were an adoption order to be refused and either the current fostering arrangements continued under a care order, or under a special guardianship order made in favour of the prospective adopters, then there is, at least in theory, a prospect that at some stage in the future a possibility of revocation of the order in question. By contrast, if an adoption order is made then save in wholly exceptional circumstances that order is final and irrevocable, even in SSM's adulthood (see Re B (Adoption Order: Jurisdiction to Set Aside) [1995] EWCA Civ 48, [1995] Fam 239).
51. The local authority, the guardian and the prospective adopters rely on the following facts and matters (which are listed by me with specific reference to the checklist in section 1(4) of the 2002 Act):

i) SSM is settled, integrated and functioning well in his de facto family with the prospective adopters, with whom he has been living since he was 5 days old. He is aware of the adoption application and very much wishes to be adopted. The first thing he said to his Guardian was "I want to stay in this house". He made it clear that wants to stay with the prospective adopters, their 5 children and 8 grandchildren, forever.

ii) He is a 6 year old child with a need for security, permanency and stability. He is aware of the adoption process he has a need for this to be resolved and to know for certain in which family he will grow up.

iii) He is thriving in his current placement and is aware that he has birth family. The atmosphere in his current home is open and accepting of this. He will be supported to have ongoing contact with his birth family. Specifically he will have direct contact three times a year with his full brothers and sister and twice a year with his father.

iv) He is within an extremely well matched placement. He is being brought up as an observant Muslim and will attend lessons at the Mosque to read the Koran.

v) He would be at risk of significant emotional harm if he were moved from the care of his prospective adopters. He would be at risk of significant emotional harm in his father's care as his father has not demonstrated the capacity to understand or meet his needs. Mr Stanley, the social worker on whom the father relies, was clear in his view that the father would not be able adequately to care for SSM.

vi) He will be assisted by the prospective adopters in having ongoing contact with his birth family in the way which best meets his needs as he grows and develops.

vii) Notwithstanding their initial stance the prospective adopters strongly wish an adoption order to be made.

Conclusion

52. In my judgment the scales fall against the father. Applying the best interests criterion in section 1(2) and the enhanced checklist in section 1(4) of the 2002 Act I conclude that the father does not have a substantial and solid prospect of opposing the making of the adoption order. I conclude that nothing else short of an adoption order will meet the needs of this child and that accordingly his best interests demand that such an order be made. Above all, he needs the stability and permanence of being cemented into his family both legally and formally as well as practically. His adoptive parents need to know that that they will not face applications from the father to disturb his placement. All they could face in the future is an application for post-adoption contact under section 51A of the 2002 Act, should the presently agreed arrangements break down; but such an application would require prior leave (see section 51A(4)(c)).
53. The father's application under section 47(5) of the 2002 Act is therefore dismissed.
54. Accordingly the second condition within section 47(4) is now satisfied, as subsection (c) is no longer in play. Therefore the sole question is whether it is in SSM's best interests that an adoption order be made. For the reasons set out above I conclude, inevitably, that it is and I so order.
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