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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> X & Anor v A & Ors [2018] EWHC 3223 (Fam) (27 July 2018)
URL: http://www.bailii.org/ew/cases/EWHC/Fam/2018/3223.html
Cite as: [2018] EWHC 3223 (Fam)
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FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
| MR. AND MRS. X |
Applicants |
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| - and - |
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| MS. A |
1st Respondent |
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| -and- |
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| MR. B |
2nd Respondent |
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| -and- |
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| C and D (by their Guardian, Billie McKay) |
3rd and 4th Respondents |
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| -and- |
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| THE CITY OF EDINBURGH |
5th Respondent |
____________________
1st Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864 DX 410 LDE
Email: info@martenwalshcherer.com
Web: www.martenwalshcherer.com
____________________
Crown Copyright ©
- In this matter I am concerned with an application to adopt by two people who have been referred to throughout this hearing as Mr. and Mrs. X. The application is in respect of two children, C who was born on 4th March 2010 and is eight years of age and D who was born on 9th November 2012 and so is five years of age. The mother of both children is Ms A and the father is Mr B. They have a third child, E, who was born on 19th May 2014 and so is four years of age, she currently lives in the care of the parents.
- The father has two other children H, who is 17 from an earlier relationship, and G, who was born on 19th June 2016 who is the child of the father and his wife Ms. F. The adoption agency in this matter is Edinburgh City Council who support the making of an adoption order in favour of Mr. and Mrs. X, as does the children's guardian. The mother and the father both oppose the application and seek the return of children to their care or, as the father submitted at a late stage in this hearing, there be some form of shared parenting arrangement between the mother, the father and Mr. and Mrs. X.
- The early background in this matter as set out in the judgment of Sheriff Corke on 26th January 2016. In brief the parents are both Nigerian nationals. The father arrived in this country in 1996 and was granted indefinite leave to remain in 2013. The mother arrived in 2006 and was granted indefinite leave to remain in 2016. They commenced a relationship at some time in 2008 or 2009. This relationship has been punctuated by lengthy separations. In about 2010 the mother was diagnosed as being HIV positive. On 18th September 2012 there was a domestic incident between the parents which led to the police being called. Subsequently the parents separated and on 24th October 2012 the mother moved to Edinburgh with C when she was heavily pregnant with D. D, as I have said, was born in November 2012. Edinburgh City Council asserted that it had provided support for the mother over a lengthy period of time but, unfortunately, the mother's mental health deteriorated seriously, as did her ability to provide adequate care to the children. Accordingly, on 23rd May 2013 both C and D were accommodated by the local authority and have not since lived with either parent.
- Thereafter on 10th December 2013 both children were made the subject of compulsory supervision orders. On 24th August 2014 Edinburgh City Council applied for a permanence order with authority to adopt in respect of both children. On 15th February 2015 the sheriff made an interim order granting such authority. On 14th April 2015 the children were placed with Mr. and Mrs. X where they have since remained. On 26th January 2016 at the conclusion of a long judgment, the application for permanence orders was refused by Sheriff Corke who considered it reasonable for there to be an attempt of rehabilitation of the children to the mother and the father, but not to one or the other. The local authority appealed this decision to the Sheriff Appeal Court. On 27th February 2017 the appeal court dismissed the appeal.
- Accordingly, the local authority approached the British Association of Adoption and Fostering to secure the services of a culturally appropriate independent social worker to assess the parents. Julia Hughes was instructed as the independent social worker and undertook an assessment. Her report dated 16th May 2017 did not recommend rehabilitation to the mother or to the father, whether solely or jointly.
- The mother's last direct contact with the children took place on 18th December 2017. An order terminating the contact was made on 20th March 2018. The father has not had contact since the children were accommodated by the local authority over five years ago. After her birth E was made the subject of care proceedings brought by the Royal Borough of Kensington and Chelsea in May 2014. She was made the subject of an interim care order on 27th May 2014. There then followed a residential assessment at the Jamma Umoja Centre which ended on 5th December 2014. Because of what was considered to be the success of that assessment the local authority's plan changed from one of adoption for E, for her to remain living with her mother. On 5th January 2015 the court made a supervision order for twelve months.
- I have the benefit of a report prepared for the purposes of these proceedings by Kim Black, a social worker with responsibility for E's case employed by the Royal Borough of Kensington and Chelsea. There were issues about the care of E relating to neglectful parenting and the unsettled life of the mother. The mother decided in late 2017 to place E with maternal family members in Nigeria and she arrived there on 2nd November 2017. In consequence the Royal Borough of Kensington and Chelsea closed E's case. E was returned to this country in May 2018, whereupon the Royal Borough of Kensington and Chelsea re-opened their case and I am told that an assessment is under way which may result in care proceedings being brought once again in respect of E by that local authority.
- Section 47 of the Adoption and Children Act 2002 provides as follows:
- The provisions of section 52 provide as follows in subsection (1):
- At all times when considering these applications for adoption I bear in mind the provisions of section 1(2) of the Adoption and Children Act 2002 which provides:
- I also have regard to the welfare checklist set out in section 1(4) of the 2002 Act which provides:
- I also, of course, have regard to the Article 6 and Article 8 rights of C and D and both of the parents and remind myself that where there is potential between the Article 8 rights of parents on the one hand and the article rights of a child on the other, the rights of the child prevail, Yousef v. Netherlands [2003] 1 FLR 210.
- In the course of submissions I was helpfully referred to a number of authorities. The first is the case of Re W (A Child) [2017] EWHC 829 (Fam), a decision of the President of the Family Division, Sir James Mumby. At paragraphs 78 and 79 he said as follows:
- In Re W (A Child) 2016 EWCA Civ 793 during the course of giving the judgment of the Court of Appeal McFarlane LJ said at paragraph 66 as follows:
- In the case of Re A and O [2017] EWHC 1293 (Fam) the President of the Family Division, Sir James Munby said in paragraph 46 as follows:
- Finally, I have regard to what the President said in the case of Re BS (Children) [2013] EWCA Civ 1146, namely that the court when considering making an adoption order must make a global and holistic assessment of all the realistic options and consider those against the test for proportionality and must not undertake a linear assessment.
- The court has been very greatly assisted by receiving the report of Professor Billington, a forensic psychologist and hearing evidence from him on the issues in this case. In the course of his comprehensive report he said as follows:
- In the course of his evidence he said that if the mother could not support the placement of C and D with the prospective adopters and the adoption then only indirect contact would be appropriate between her and the children. He confirmed that the children, whom he described as model children, have strongly attached to Mr. and Mrs. X and are thriving in their care. They are fully integrated into the family. Both want to stay with Mr. and Mrs. X. In his view they are potential high achievers.
- Asked about the impact of removal he referred to what he had said in his report and added in that it would throw them into turmoil, they are likely to be highly resistant. He told me that C is dependent on Mrs. X, C has clung on to D, a move of D from Mr. and Mrs. X would be inexplicable. D would not be able to transfer his attachment to his birth parents
- In Professor Billington's assessment the risks involved in a move were far greater than any risks in them remaining in the care of Mr. and Mrs. X. He concluded that the recent contact between the mother and the children had been very distressing for the children, but he was of the view that appropriate letters and card by way of indirect contact would be warmly received by C. He concluded that it would be massively reassuring to C if the birth mother supported placement. It was, he said, the best thing the birth mother could do for C.
- During the course of his report he set out at some length and in some detail the social worker's account of an incident in August 2017 when, most unfortunately, the birth mother and Mrs. X came into contact with each other during a handover for contact at which it is said, and I accept, that the birth mother was aggressive and unpleasant in the presence of D and C and E to Mrs. X.
- Tracey Black is the social worker from Edinburgh City Council who is the joint author of the Annex A report. She most recently visited the children in the care of Mr. and Mrs. X on 13th February this year. She described that visit in a report thus:
- In the course of her evidence Ms. Black told me that the children had seemed more relaxed and spontaneous since direct contact had ceased between the children and their mother. In describing a typical contact when it did take place the social worker was clear that the mother's focus was C. She would almost ignore D and E. She would invariably be very critical of the care afforded by Mr. and Mrs. X in their presence and to the children. These negative comments made C anxious and uncomfortable. The social worker told me that this happened on a regular, frequent basis. It made C hypervigilant about her mother.
- In relation to indirect contact the social worker has offered advice to the mother about what appropriately may be written in letters and cards for the children. Unfortunately, the mother has been adamant that she will not accept any advice or guidance. The social worker has found this process immensely difficult.
- The social worker told me that the mother was not aware of the children's distress and upset as a result of the events of August 2017. Ms. Wynter, the Applicants' link worker, who is a social worker with Action for Children, briefly gave evidence before me. She too confirmed that since direct contact had stopped the children seemed much more relaxed. She, the social worker, had complete confidence in the prospective adopters who she said were absolutely committed to the children.
- Ms. Hughes, the independent social worker who carried out an independent assessment of the parents in 2016 gave evidence and spoke to her very detailed and very comprehensive report. Her principal conclusions were as follows:
- One may ask rhetorically what has since changed? In her evidence she confirmed the contents of her report. She too confirmed that there were lots of criticism by the mother of Mr. and Mrs. X and that the mother had no perception of how this affected and how her actions affected C. She told me that the mother and the father do not and have not had a stable relationship and they do not have sufficient empathy for the children.
- She concluded by telling me that there was no question that the mother loves her children but that she was not attuned to their needs. The mother, she said, is so angry she cannot empathise with the children and she cannot recognise the adverse effect her behaviour has upon the children.
- Ms. Black, the social worker from the Royal Borough of Kensington and Chelsea, provided a report this year for the purpose of those proceedings in which she set out the history of contact between the Children Services Department of that Royal Borough and the mother and father. She made a number of observations in that report. She noted that E, who had difficulties with language development, was discharged from her speech and language therapy service because of poor attendance. She noted that E was not attending nursery as she should have been because the mother was prioritising her needs to seek employment and to attend interviews.
- In relation to their accommodation last year she said:
- She then later in the report set out a number of concerns about the mother's care of E. She spoke of the mother's poor supervision of E when out in the community. She reported the mother would not provide an address for where she and E were staying. She would not permit the social worker to have the contact details of the person who was caring for E when Ms. A was at work. E did not currently have a nursery place. The mother was refusing to accept the service of the language service and the mother had real difficulties managing E's behaviour when out in the community.
- Towards the end of her report she asserted that E presented with unmet needs across five out of seven developmental dimensions relating to E's health, education, emotional and behavioural life, social presentation and family and social relationships. These were all said by Ms. Black to be evidence of deficit in the current caring ability of the mother for E. The case, as I have mentioned, was then closed when E left the jurisdiction to live in Nigeria. Mr. Alex Taylor, a senior social worker with the Royal Borough of Kensington and Chelsea, is currently undertaking a parenting assessment.
- The mother gave evidence. I entirely accept that she has been in difficult circumstances fighting hard for the return of her children for the last five years. She found the experience of giving evidence obviously very emotionally draining but I have to find, I regret, that she was a most unsatisfactory witness. She kept making references to her ownership of the children which I may excuse as being a factor of culture, but she also focused almost entirely on her rights as the birth mother and rarely, if at all, on the rights or needs of the children. There is clear cogent and consistent evidence that the mother is wholly incapable of recognising the children's needs or of recognising the adverse effect of her erratic and emotional behaviour upon the children.
- Further, I find she has no ability to see matters from the children's point of view. Despite her denials it is clear that during the course of direct contact she would quite purposefully find matters to criticise about Mr. and Mrs. X's care of C and of D. She voiced that criticism in front of the children and in front of E despite, as I find, being repeatedly advised by the social worker, Ms. Tracey Black, not to do so. The advice of Ms. Black, it would seem, had no effect whatsoever upon the mother's behaviour.
- In confronting Mrs X aggressively and very emotionally in August 2017, the mother plainly gave no thought and had no regard to the adverse emotional impact of such matters upon C and D. When asked in cross-examination by Mr. Inglis on behalf of Edinburgh City Council, the mother did not accept a single criticism or issue about her parenting capacity by any professional involved in this case. The mother asserted that what the professionals had said were all lies and they were all part of and party to a conspiracy by Edinburgh City Council to place her children for adoption.
- Contrary to what Professor Billington had said in his evidence, the mother asserted that she would never accept the prospective adopters as the mummy and daddy of the children. In relation to the father the mother asserted that they have a very good relationship and that they live together. Somewhat curiously when she was asked about the father's wife, Ms. F, she simply replied, that was a matter for him. Contrary to what the mother told Ms.Hughes in May 2017 the mother asserted in evidence that her relationship with the father at that time was fine.
- C has reported on a number of occasions memories of the father smacking or slapping the mother and being domestically abusive. The mother does not accept what C has said. As an illustration of her usual response, she asserted that maybe C had been coached by someone to say these things. She told me that she had lived together with the father since January of this year. When asked why she had not told the social worker about this relationship she said she should have done. When asked to explain if that be the case, why she had told social worker that father saw E "most weeks" if they were living together, the mother could not answer that.
- She is, in relation to the relationship with the father, lying as she has in the past. She asserted that the father went every two weeks to go and visit his wife, Ms. F, and his daughter, G, who live in Leeds. Towards the end of her evidence she told me that her father, who is now sadly deceased, could not be at rest and could not sleep until C and D were back with her and the family. She also told me that the children being absent from her had and would cause problems for her with her family in Nigeria.
- The father's daughter, H, gave very brief evidence and told me that he was a good dad in terms. She told that as far as she was aware the father lived with his wife, Ms. F.
- The father then gave evidence. He told me first time round that he and the mother had lived together since 16th March 2018. When it was put to him the mother had said it was January he changed his evidence and said it was either February or March. He then changed his evidence again and said it was February. When it was put to him that his daughter H had said that he lives with his wife Ms. F, he was evasive.
- I am satisfied that the father told me blatant lies when he was describing his resumed relationship with the mother. The father accepted eventually that he had not told Sheriff Corke in 2015 about his resumed relationship with Ms. F or the fact that she was pregnant with their child. He asserted that he did not say anything because the sheriff had not asked him. He was pressed about the matter. He then claimed that the relationship had recommenced with Ms. F after the sheriff's case was concluded in November or December 2015. When it was pointed out to him (1) that the evidence was complete in late November 2015 and (2) given that G had been born full term in June 2016, the relationship must have restarted in September or October 2015. He agreed.
- When pressed why then he had not disclosed this relationship and the pregnancy to the court in Scotland there was a very, very long pause. He then asserted that Ms. F, his wife, would support him and the mother in collective parenting between the three of them of C and D. The mother, I am satisfied, had no knowledge of any such suggestion. The assertion of collective parenting was made up on the hoof by the father and is a lie.
- It is quite unbelievable that the father did not disclose to the sheriff that he was in another relationship with a woman who was carrying his child during the course of a case when he was seeking to have C and D returned to the joint care of him and the mother. He has told quite obvious lies.
- The father then married Ms. F in February 2016. It was the local authority who alerted the mother to the fact of this relationship and to the marriage. The father had not told her himself. Father could give no satisfactory explanation for his failure to do so. At first at the end of his evidence he refused to tell me the name of the person who that day was looking after E. When he was pressed he suggested he did not know the name of the individual other than she was a friend of the mother who was a close neighbour. This is another obvious lie.
- The guardian told me that she fully supported the adoption and was satisfied that the rehabilitation or placement of C and D to the care of the parents was not in the interests of either.
- I bear well in mind I must undertake a global and holistic and not a linear assessment of what options and orders are in the welfare, best interests of C and D. The parents have fought continuously for the return of their children to their care. Although the mother has understandably complained of her inability to secure public funding and has not had the benefit of counsel and/or solicitors representing her at the hearing, both the mother and the father have very forcefully and emotionally at times made their views very clear to me. They have also been strident in making known their challenges to the evidence given by Edinburgh City Council and on behalf of the Royal Borough of Kensington and Chelsea.
- Considering the totality of the evidence I have read and heard it is plain and obvious and I find that:
- I reject the assertion that the social workers from Edinburgh or from the Royal Borough of Kensington and Chelsea, the independent social worker, have lied in their reports, statements or evidence. I further reject the allegation that there has been a conspiracy by Edinburgh City Council and/or any other professionals to place C and D come what may to adoption. Neither assertion has any foundation whatsoever. I accept the evidence of Professor Billington who was extremely measured and persuasive in his evidence that D could not now transfer his secure attachment from Mr. and Mrs. X to mother or the father. For C it might be possible but it would be a painful process for her.
- The parents have complained that Edinburgh City Council deliberately delayed proceedings so that time would elapse when the children were in the care of Mr. and Mrs. X. First I reject any notion that Edinburgh City Council did deliberately delay matters as alleged. There was no foundation for this allegation whatsoever. Second, as I shall explain, whether this adoption application was made six months ago, a year ago or two years after placement, it is extremely unlikely it would have made any difference to the conclusion I have reached.
- The parents assert that they are living together as a supportive couple, albeit not in an intimate relationship and they seek the return of the children to their joint care. Father said he would sacrifice his marriage for the children. He originally said he would support the mother caring for the children until such time as the local authority was satisfied that the mother could care for them alone when he would return to his wife. These two positions cannot be reconciled.
- The notion whatever be the cultural differences between the parents as Nigerian nationals and those of this jurisdiction, such differences do not begin to explain why (a) the father recommenced a relationship with his now wife during the course of the court case when he was seeking the return of the children to the care of himself and the mother or (b) he did not tell the mother or the court about the relationship or the fact that his wife was pregnant.
- Father has lied to the sheriff and he has lied to me. As a result I can place no reliance whatsoever on the father's evidence about the state of his relationship with the mother, nor with their living arrangements. This finding is reinforced by the fact that I am satisfied that both are lying to me about the current state of their relationship and living arrangements.
- On the totality of the evidence I am entirely satisfied that neither the mother nor the father, nor them together as a couple, which is extremely unlikely in fact to exist or at least to persist beyond this court case, are able to meet the needs of these children. I am satisfied so that I am sure that the children would suffer very significant physical, emotional and psychological harm if they were in the care of the mother or the father.
- Whilst a return to the parents' care is excluded, does it follow an adoption order should be made? The clear answer is no, unless there are very cogent reasons for doing so. I accept the parents' case that prospective adopters, albeit Nigerian, are of a different tribe and from a different area of Nigeria and thus they have a different cultural and value perspective from that of the parents.
- An adoption order would sever the birth parents' relationship with the children and with their full sibling E and their half siblings, H and G. I note that H has only met C twice when she was a baby. She has never met D. G has never met C or D. E, of course, has met both when she attended contact with the mother. Whether E remains in her mother's care is a matter for the Royal Borough of Kensington and Chelsea, of course, and, ultimately, the Family Court that would be invited to determine any application for a care order. On the evidence before me I simply comment that there are serious questions to be answered as to whether E should or should not remain in the care of her mother or of her father.
- Would a lesser order, such as a child arrangements order or a special guardianship order provide C and D with the permanency and security they need? The father suggested late in his evidence that a collective parent arrangement with Mr. and Mrs. X would work for the children. This suggestion is utterly absurd. The notion arose at the very end of his evidence. It was plain that the mother very vociferously did not agree. In my judgment it would be nothing short of a disaster for the children. The mother is so viscerally opposed to Mr. and Mrs. X caring for her children that an order less than adoption will not provide for the permanent future stability and security or to enable them, as Professor Billington put it, to achieve their full potential.
- The mother's reference to her father's soul being unable to sleep and rest until C and D are returned to the family and the reference to the family's expectations that they will be returned is in one sense entirely understandable, but it indicates in very clear and a very cogent manner that the mother at least will not stop at anything to secure the return of the children to her care. There can in my judgment be no more graphic illustration of the phrase nothing else will do in the welfare interests of the children than that children are adopted by Mr. and Mrs. X.
- At an earlier point in these proceedings by reason of an egregious error the parents were made aware of the home address of Mr. and Mrs. X. In fairness to the parents neither have yet sought to attend the same or to go to [the place where the adopters live]. The fear, however, which I fully share and understand, that if an adoption order is made, one or both of the parents will seek to travel to [the place where the adopters live] in search of C and D and/or go to the home of Mr. and Mrs. X. The risk of them doing so is significant. The consequence of them doing so would result in grave emotional and psychological harm being caused to both children.
- Accordingly, I am satisfied that it is entirely proportionate and necessary for me to make an order under the inherent jurisdiction preventing either parent from entering [the place where the adopters live] or going to the current home of Mr. and Mrs. X. That injunction will last until D achieves his majority or until further order. The precise terms of the injunction can be considered with counsel on the drafting of the same.
- I am entirely satisfied that it is manifestly in the welfare and best interests of C and D that they remain in the care of Mr. and Mrs. X, that they are able to feel safe and secure for the rest of their childhoods and such can only be obtained in my judgment by the making of an adoption order in their favour. The parents both refuse to consent to such adoption. I am satisfied, pursuant to the provisions of section 52 of the 2002 Act, that each child's welfare requires me to dispense with the consent of the mother and of the father and I do so. I make adoption orders in respect of C and D in favour of Mr. and Mrs. X. I will also, as I have indicated, make an injunction against the mother and father under the inherent jurisdiction.
MR. JUSTICE KEEHAN:
Introduction
Background
In his judgment of January 2016 Sheriff Corke described the circumstances which led the children's reception into care as follows:
"On 23rd May 2013 the mother, C and D were found living on the internal stairwell leading up to their flat surviving on crisps and biscuits. The stairwell was littered with dirty nappies. The mother was praying constantly and repetitively in an agitated state and felt she was being terrorised by spirits. On 23rd May 2013 C and D were voluntarily accommodated due to the mother's decline in mental health and ability to look after the children. She was admitted to the Royal Edinburgh Hospital as an in patient on a voluntary basis suffering from acute intransigent psychotic disorder rather than schizophrenia. This was consistent with a brief psychosis of schizophreniform-type such being very common in the postnatal period. Low mood and a perception that she was being terrorised by spirits was consistent with depression with an anxiety order as well. The mother responded well to anti psychotic medication.
The father did not come to Edinburgh to assist with the children, even though he knew that the mother was ill and unable to cope. He did not visit the mother whilst she was in the Royal Edinburgh Hospital."
The Law
"(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).
(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied —
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) that the parent's or guardian's consent should be dispensed with.
(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.
(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, [which is satisfied in this case] ...
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
(6) The third condition is that the child is --
(a) the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or
(b) is free for adoption by virtue of an order made under Article 17 or 18 of the Adoption (Northern Ireland) Order 1987."
"(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that —
...
(b) the welfare of the child requires the consent to be dispensed with."
"(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life."
"(4) The court or adoption agency must have regard to the following matters (among others) —
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed and with any other person in relation to whom the court or agency considers the relationship to be relevant, including —
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."
"There are many illustrations of this principle in the books. J v C is, at one and the same time, the classic formulation and the classic application of the principle. I was also referred by Mr Feehan to some words of Lord Templeman in In re KD where, shortly after the famous and much-quoted passage beginning, 'The best person to being up a child is the natural parent,' he said, referring to the facts of the case (page 812):
'In November 1986 the welfare of K required that he should no longer see [his mother] because at the age of 3 years he could not cope with two competing mothers. By November 1986 K had been integrated into the family life of his foster-parents who had become mother and father to him; the family life of K and [his mother] was lost beyond recall.'
79. In YC, para 141, the Strasbourg court said this:
'... once K was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant's care.'
Further at paragraph 233 the President said:
"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."
Finally, at paragraph 237 the President said:
"My overall conclusion is that there is a very high probability of fairly immediate, and significant, levels of distress and trauma and a very real likelihood – just how high it is impossible to predict – that the placement would be put under such pressure that it might break down, which if it were to happen would carry with it a more than fanciful risk of catastrophe."
"In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it. In that regard, the generalised evidence of the ISW and the Guardian, which did not involve any assessment of A and Mr and Mrs X, in my view fell short of what is required."
Further at paragraph 71 McFarlane LJ said as follows:
"The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged."
"Pulling the threads together:
i) The Family Court has jurisdiction to hear this application for an adoption order pursuant to the 2002 Act irrespective of whether A and O are, or are not, habitually resident in England. Likewise, the Family Court has jurisdiction to dispense with the parents' consent in accordance with section 52(1)(b) of the 2002 Act, notwithstanding that they are not habitually resident in England.
ii) The application is properly made in accordance with sections 42(2)(a) and 47(2) of the 2002 Act.
iii) A and O's parents and Dundee City Council are properly joined as respondents in accordance with FPR 14.3: each of the parents as a 'parent who has parental responsibility' within the meaning of the rule and Dundee City Council as an 'adoption agency which has taken part ... in the arrangements for adoption of the child[ren]' within the meaning of the rule.
(iv) The task for the Family Court will be (a) to decide whether adoption is in the best interests of A and O, judged by the test in section 1(2) of the 2002 Act of 'the child's welfare, throughout his life', having regard to the various provisions in the 'welfare checklist' in section 1(4) of the 2002 Act, and applying the principles explained in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, and in Re W (A Child) [2016] EWCA Civ 793, and (b) to decide whether the welfare of A and O 'requires' their parents' consent to be dispensed with in accordance with section 52(1)(b), as that word was explained in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 125: see Re W (A Child) [2017] EWHC 829 (Fam)."
The Evidence
"11.1.3 On the basis of the evidence above, however, it is possible to conclude that C and D are strongly attached to one another as well as to the Applicants and their family.
11.1.4 D believes only in Mr. and Mrs. X as his parents at the current time although he might be expected to re-visit issues of identity and even wish to make contact with his birth parents at some point in future.
11.15 Some of the attachment subtleties relating to C might well not have been revealed during the scope of this assessment, in particular, it was not possible to explore in more depth the complex feelings she has for her mother. These feelings are likely to increase sadness, fear and loss but it would have been unethical to interrogate her feelings more vigorously at this time on account of the distress this would have caused her.
11.1.6 Nevertheless, it was possible to conclude that C is attached to both 'mummy Ms A' and Mrs. X. That both these attachments might be considered in some ways problematic is due to the heightened awareness she has of their respective emotional sensibilities and vulnerabilities but also the sense of responsibility she has come to assume for the well-being of both.
11.1.7 C does, however, have strong feelings of dependency for Mrs. X (as well as Mr. X and D) and she has come to rely on them as figures of predictability in her life who will be central in meeting her needs."
Later, he said:
"11.2.2 The impact of any movement at current placement would be the cause of distress both for C and D. Any such move for D would act to sever his primary attachment relationships (i.e. with Mr. and Mrs. X, the people he knows has his parents) and would be inexplicable to him at this time, despite the biological ties.
11.2.3 C too would find any move most challenging since she is content and happy in her current situation and has many friends and family within a rich social fabric."
A little later he said:
"11.3.3 Mr. and Mrs. X have organised their lives in order to meet the needs of the children and clearly spend all their time working as a couple to ensure that the children's needs are being met. Both C and D would experience a profound sense of loss of any removal but fear too, since it would expose them to an unpredictability from which they have been protected."
"When seen at home with the couple on February 13, 2018, I observed D and C appeared happy and relaxed. I noted good mutual eye contact and clear communication between the children and Mrs. X. I have observed Mrs. X to set appropriate limits for the children using kind, clear language and remaining firm in the face of the children's efforts to persuade her otherwise. In the care of Mr. and Mrs. X the children have attended school regularly and make good progress. They also take part in positive after-school activities: music, dance and swimming lessons. Mrs. X ensured that the children attend all medical appointments and that they have followed all treatment advice."
"I also wonder how much both parents will cooperate with the local authority if the children are returned to their care given their lack of openness and honesty with the local authority in the past, their current hostility and anger towards them and the fact that they are currently being not fully open and honest with them. Mr. B lying about his marital status and not providing details of his wife is just one of many examples of this deception and lack of co-operation. I consider there is uncertainty about the proposed placement with both parents, where the parents' proposal for the children to be placed in a supported relationship is not a secure and stable alternative. This is a temporary solution in the wake of a relationship that did not work whilst the parents were in a committed relationship. It is therefore not likely to work now they are separated. I am therefore not able to recommend the children return to their parents' care either together or separately. I consider that the children are likely to suffer emotional harm by being removed from their current carers and being moved to their natural parents who they do not have a secure relationship with. Indeed, both children have no relationship with Mr. B and D has no emotional relationship with his mother."
"87. E and her mother did not, however, present as safely settled in their new home. Despite Ms. A reporting that she and E had moved into their new home, during visits I observed they did not look lived in: no toiletries in the bathroom; no covers on the beds, no sign of either E's or Ms. A's belongings unpacked, just lots of big, unpacked holdalls. The washing machine was full and it was my assessment that Ms. A was using the house as a place to store her belongings and do her laundry."
Analysis
(a) C and D are very securely attached to Mr. and Mrs. X;
(b) D considers Mr. and Mrs. X to be his parents and they clearly are his emotional, psychological and social parents;
(c) neither C or D have seen the father nor had any contact with him for five years;
(d) neither C or D had lived with either parent for five years;
(e) C has some memories of her father, those are expressed to professionals in relation to him hurting her mother;
(f) C has a conflict of loyalty between her mother and Mrs. X, she needs to be reassured that her mother is all right and well. After the August incident between her mother and Mrs. X, C expressed the fear that her mother would not go to Heaven now because of her behaviour;
(g) save for this tension C is securely attached to Mr. and Mrs. X;
(h) both children appear to the social workers to be more calm and relaxed after direct contact with the mother ceased.
Conclusion