England and Wales High Court (Family Division) Decisions

“There remain, therefore, two issues for me to determine:

i)            Should I grant Mr and Mrs A’s application to adopt W, their application including an application pursuant to sections 47(2)(c) and 52(1)(b) of the Adoption and Children Act 2002 to dispense with the consent of her father and mother, or should W be returned to the care of her father?

ii) If the former, should I make any order in relation to post-adoption contact?”

“This is an issue about which I have thought long and carefully, but in relation to which, at the end of the day, I have no hesitation in coming to clear conclusions. Mr and Mrs A’s commitment to W, and to her well-being, throughout her life, is absolute. Their journey through litigation which has subjected them to appalling strain (just as it has the father and the mother) has been reflected in a gradual development and positive movement in relation both to their understanding of the father and of their recognition of the need for and willingness to facilitate contact, both indirect and direct. I accept Mr Diver’s assessment, which agrees with my own, of Mr and Mrs A being willing now, whatever may have been their stance in the past, to work towards direct contact, and moreover, direct contact sooner rather than later…”

“The starting point has to be W’s current reality. As far as she is concerned, Mr and Mrs A are her daddy and mummy. They are her parents, emotionally, psychologically and socially. They and their son are, and, so far as she can remember, always have been, her family. It may be that she has the implicit memory referred to by Dr Willemsen, but she has no actual memory of her birth family or of any other family. She may be familiar with the words “tummy mummy”, but she has no real understanding of what they mean or of their significance. Given her age and stage of development there is little that could be done to prepare her for a move to her father’s care, nor would it be possible to explain to her, in a way which would have any real meaning for her, what is happening to her, whether before, during or after the move.”

“249      I am, at the end of the day, driven to the conclusion, which in the event I arrive at unhesitatingly, that W must, for her own good, for her own happiness and for her welfare, now, in the years to come, into and through adulthood, indeed for the whole of what I appreciate may be a very long life – she may well live into the 22^nd century – remain with what for her is her family, that is, with Mr and Mrs A and their son …

250        Drawing the statutory threads together, the sad reality is that W does not now have, did not at the time of the hearing before me have, any meaningful relationship with her birth family; the most important, indeed from her perspective the dominating, relationship for W is and has for some time been with Mr and Mrs A and their son. The value to W of that relationship continuing is enormous. And while I recognise – how could I not? – the strength of the father’s wishes and feelings, and his absolute commitment to W and unconditional willingness to provide for her every need, one has to question his ability to do so; not because of any failings or limitations on his part, because for all practical purposes there are none, but because what would be demanded of him would probably be almost too much for any parent in his situation.

251        … the stark reality here, in my evaluation of what the future in all likelihood holds, is that the future for W if she returns to her father is not one of merely short-term or transient problems; far from it. The risks of moving W from Mr and Mrs A are simply too great, and potentially so unmanageable, as to demand that they not be run.

252        Given that analysis, given my conclusion that W’s welfare demands that she remains with Mr and Mrs A, I am also driven to the conclusions (a) that W’s welfare requires that she be adopted – for her long-term welfare cannot otherwise be secured – and, a separate matter, (b) that her welfare “requires” (in the sense explained in the authorities) that her parents’ consent to her adoption be dispensed with. Adoption is demanded by the overriding necessity of W’s interests and welfare. Nothing else will do.”

“There was a clear consensus among all the experts that, if W is to remain with Mr and Mrs A, it is in her best interests that there should be increased contact leading to direct contact with her birth family as soon as is practical. There was general agreement that W’s long-term psychological wellbeing – her ability to understand her status as an adopted person and to put her particular ‘narrative’ in context – would be best safeguarded if contact with her birth family took place sooner rather than later. I agree with that. I also agree that there should be no order for contact, something which no expert recommended. If Mr and Mrs A are to be W’s adoptive parents, and this is the hypothesis on which the question arises, it must be for them to decide when, how and in what circumstances contact should begin and develop. And, quite apart from that, it is quite impossible at this point to spell out any of these matters with the kind of precision which would be required in an order. All that said, I agree with Dr Blincow’s view, expressed in answer to questions from Mr Bennett, that Mr and Mrs A need to “commit themselves” to making such contact work and that “it is very, very important … that [they] adopt that course of action wholeheartedly.””

“[The father] has expressed fears that, as a family with American and Italian heritages and extended families in both those countries, we may move permanently from England to either Italy or the USA once an adoption order is made in our favour. It is impossible for any family to know exactly what the future will hold but as a family we have put our roots down in this country and our son has always been educated here and lived here since he was one year old. Mrs A is about to submit an application for British citizenship and her “Life in the UK” test is scheduled for [date]. Apart from this being an acknowledgement of our settled residence here, it will mean that Mrs A has the same nationality and connection with this country as W.”

In the second, they said this:

“Our position in relation to our future living arrangements is as follows. It is correct that we have ties to other countries (indeed this was, we believe, one of the main reasons for being matched with W in that her birth family had asked the local authority to look for adopters who could reflect her part-Italian heritage). However we have built our lives together in the UK and established careers and friendships which now go back many years. We keep in frequent contact with our family members abroad and they visit us, and we them, on a regular basis, but the UK is our home. Our family is rooted and settled in our local area.

… Mr Hatter suggested during the experts’ meeting (although not in either of his reports) that he was concerned by our failure to offer a ‘guarantee’ that we would not move abroad during W’s minority. We have never been asked to offer this, by Mr Hatter or by anyone else, so it is not right that we have refused or failed to do so. It is our view, however, that such a guarantee would be meaningless. We have no plans or intentions to move abroad and something significant and unanticipated would have to occur before we would contemplate doing so; in those sorts of circumstances, if there were some real imperative compelling us to move, it is hard to see what weight we could give to a guarantee offered before the unforeseen event took place.”

“Q         … needing to move abroad was something you envisage might happen in the future?

A            I think I said it was a possibility, so that is why we did not have a special guardianship order, we can move freely as a family without having to ask permission.

Q           That must remain a possibility?

A           No plans.

…

Q           … you also said that you may have to move a family to the States?

A            I did not say we would, I said it is a possibility, because we are both foreigners you never know if circumstances arise, my husband is Italian but it was also an issue if some family member was sick and we might have to spend extended time, we wanted to be able, that is a good thing for us to be able to have that flexibility.”

“W was seen in … on 12^th May with prospective adoptive parents … They informed a colleague that they plan to move to the US but that we should not mention this in any letters. They were advised that the hearing aid that we planned to fit was government property and would have to be returned on leaving the UK.”

As Ms Bazley points out, the context of what is said to have happened on 12 May 2017 was that an order I had made on 10 May 2017 recorded Mr and Mrs A’s agreement to:

“provide to the parents and to the local authority a copy of any letter(s) received from any health professional in relation to W’s hearing problems and the treatment to be undertaken.”

In her email, Ms Bazley said this:

“… If this is correct, this is wholly contrary to the assurances given to the court that Mr and Mrs A would remain based in England … and committed to direct contact … If in fact, Mr and Mrs A were intending to leave the jurisdiction permanently and concealed this from the court, we would argue that this goes to the heart of your decision … We ask that you grant a short further stay of your adoption order and permit the matter to be restored urgently for further directions …”

“I have just received confirmation from the court office that the adoption order was sealed on 18 April.

I am therefore functus officio and can do nothing absent an application to set aside the AO.”

Ms Bazley’s response (17.45) was that:

“We will take instructions in light of any information to come from Mr and Mrs A on Tuesday.”

i)                   In November 2016, during the course of a regular review with his employer, which has offices in the USA, the company’s HR department raised with Mr A the possibility of a transfer to the USA.

ii)                 In February 2017, Mr A was offered and accepted a US-based role.

iii)               On 1 May 2017, Mr A started his new job, although, as it was put in the letter from his solicitors dated 31 May 2017, “he is continuing with aspects of his UK based job in parallel with the new role. At present the family remains based in the UK and Mr A is commuting between the two jurisdictions.”

iv)               As reported by Ms Reains, Mrs A’s stated position on 9 June 2017 was that “… they remained dedicated to contact … they had made no plans as yet to undertake the move and have not made any plans for W or the A’s son to start school in the US … if [they] were to move to the US at some time in the autumn, it would be most practical for them to return to the UK in the Easter period next year …”   

“Issue both applications immediately

List both applications before PFD on Friday 23 June 2017 at 10.30 for directions and (if appropriate) urgent interim relief (elh 1 hour).”

The applications were formally issued the following day, 22 June 2017.

“I have decided to DISMISS both the application under the inherent jurisdiction seeking the setting aside of the adoption order and the application seeking a post-adoption contact order under section [51A] of the Adoption and Children Act 2002.

My reasons will follow on Monday.

Can you please agree, and email me, a form of order to give effect to my decision. The order will be dated 10 July.”

I now (10 July 2017) give my reasons.

i)                   One was that Mr and Mrs A had “formed a settled intention” prior to circulation of the judgment on 6 March 2017 “to remove W from the jurisdiction permanently”.

ii)                 The other was that Mr and Mrs A “knowingly withheld” their plans from the court and the parties prior to 6 March 2017 “to ensure that their plan to relocate would not prejudice the position they had advanced.”

i)                   The failure to disclose in February 2017 (at a time before I had handed down my judgment) Mr A’s acceptance of the job offer in the USA.

ii)                 What was said to the audiologist on 12 May 2107. 

“My clients are conscious that a potential move to the US has been raised within these proceedings before (at a time when there was no such possibility) as a complicating factor. They accept that they asked the audiologist not to mention their conversation because there is no certainty around this issue and, frankly, they wanted to avoid just this scenario. This was certainly a mistake and they also accept that. Apologies are offered.”

“It is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure … in all matters in respect of children.”

i)                   I had accepted the evidence of Mr and Mrs A. It is important to recognise that they had not, either in their written or in their oral evidence, ruled out the possibility of a future move to the USA. And I had not (judgment, para 100) made any finding to the effect that they were going to remain in this country.

ii)                 My decision in relation to the fundamental question of adoption, yes or no, was not expressed as being contingent on my decision in relation to contact. Of course, as Ms Bazley observes, the possibility of future contact was something I had to have regard to – see sections 1(4)(f) and 51A of the 2002 Act – as I did (para 249). But the fundamental basis of my decision in relation to adoption was as set out in paras 250 and 252 and there is nothing there to suggest that my decision was contingent – because it was not – upon an assumption that there would be contact.

iii)               There is nothing in the judgment to show that the direct contact which I envisaged (paras 100, 253) was necessarily to take place in this country, let alone that it was contingent on Mr and Mrs A continuing to live in this country. As Mr Bagchi put it, and I agree, my decision was not based on issues of geography.

i)                   In relation to the non-disclosure of Mr A’s acceptance of the job offer, this is not something fundamentally inconsistent with anything they had said in their evidence, or, as it turned out, with any assumption articulated in my judgment.

ii)                 Their deliberate decision to conceal what had been said to the audiologist on 12 May 2017 was after I had given my judgment and, more significantly, a reaction not so much to the judgment as to the terms of the order made two days before, on 10 May 2017.