FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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Z |
Applicant |
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- and - |
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A Local Authority |
1st Respondent |
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- and - |
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Y |
2nd Respondent |
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- and - |
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Mr & Mrs A |
3rd & 4th Respondents |
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- and - |
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X (A Child Through His Children's Guardian) |
5th Respondent |
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Mr Garfield Braithwaite (instructed by Local Authority Solicitor) for the 1st Respondent
Ms Kathryn Cronin (instructed by Osbornes) for the 3rd & 4th Respondents
Ms Denise Gilling Q.C. (instructed by Cafcass Legal) for the 5th Respondent
Y Did Not Attend
Hearing dates: 22nd 23rd & 24th February & 19th and 31 March 2021
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Crown Copyright ©
Mrs Justice Theis DBE:
Introduction
(1) The lack of a clear understanding as to how Z's statements were prepared. Whilst Z had some understanding of English he has required an interpreter in the hearings and during his oral evidence. Most of his statements were in English and considerable time was taken up on 4 August 2020 dealing with this issue. The statements should either have had an interpreter's certificate at the end (in accordance with Annex 2 of PD22A Family Procedure Rules 2010 'FPR 2010') or a signed translated version of the statement available.(2) Until the solicitor for Mr and Mrs A took responsibility for managing the electronic version of the court bundle by adding hyperlinks there had been repeated failure to agree an index and for a bundle to be lodged in accordance with PD27A FPR 2010, which was the obligation of the applicant's solicitor. To give but one example, the hearing on 22 February had to be adjourned for nearly 2 hours so the C section of the paper bundles delivered to court for the witnesses to use could be paginated in a way that was legible. Whilst the court received a written apology from Z's solicitors, this was not the first time issues had been raised about the bundle.
(3) The late disclosure of material and information by Z and Mr O during the hearing on 14 October 2020 that resulted in that hearing having to be adjourned.
Relevant background
Y's position
The local authority and the court have made extensive efforts to seek to engage Y in these proceedings. This has been via the social worker, Ms W, and through the Polish Embassy. Ms W has filed a number of statements setting out the steps that have been taken, including arrangements being put in place for her to have contact with a solicitor. The last time Ms W spoke to Y was on 6 March 2020 and the last time she responded by email was in July 2019.
The evidence
Z
Mr O
Mr and Mrs A
'2. Contact with [X's] birth father is something that we have given great consideration. We want [X] to understand that he has a birth father, to know about him and, when he is old enough to choose whether he wants to have contact with him.
3. We also understand that his birth father will want to be reassured about his wellbeing and his progress. We currently have indirect letterbox contact with [X's] birth mother which we conscientiously comply with and we would also agree to letterbox contact with the Applicant for [X's] sake. However, as previously stated and further elaborated upon in this statement, we are opposed to any form of court imposed direct contact and ask the court to allow us as [X's] parents to decide as to the timing and extent of any direct contact should that be in [X's] best interest while he is a child.'
Ms L
Ms W
The Children's Guardian
Legal framework
i) Under the inherent jurisdiction, the High Court can, in an appropriate case, revoke an adoption order. In relation to this jurisdictional issue I unhesitatingly prefer the view shared by Bodey J in Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), [2013] 2 FLR 1609, para 6, and Pauffley J in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 4, to the contrary view of Parker J in Re PW (Adoption) [2013] 1 FLR 96, para 1.
ii) The effect of revoking an adoption order is to restore the status quo ante: see Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, paras 11-12.
iii) However, "The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside "only in highly exceptional and very particular circumstances"": Re C (Adoption Proceedings: Change of Circumstances) [2013] EWCA Civ 431, [2013] 2 FLR 1393, para 44, quoting Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para 149. As Pauffley J said in PK v Mr and Mrs K [2015] EWHC 2316 (Fam), para 14, "public policy considerations ordinarily militate against revoking properly made adoption orders and rightly so."
iv) An adoption order regularly made, that is, an adoption order made in circumstances where there was no procedural irregularity, no breach of natural justice and no fraud, cannot be set aside either on the ground of mere mistake (In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239) or even if there has been a miscarriage of justice (Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378).
v) The fact that the circumstances are highly exceptional does not of itself justify revoking an adoption order. After all, one would hope that the kind of miscarriage of justice exemplified by Webster v Norfolk County Council and the Children (by their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, is highly exceptional, yet the attempt to have the adoption order set aside in that case failed.
Submissions
Discussion and decision
(1) Whilst the relationship between Y and Z probably started when they met on line they are unlikely to have met first in Poland due to Z's immigration status and the inability of him to be able to travel to another jurisdiction. They are more likely to have first met in person in this jurisdiction in late 2015/early 2016.(2) Following Y becoming pregnant early in their relationship, it was unlikely the relationship continued in the way either Y or Z have suggested. Whilst it is right the court must factor in that Y has chosen not to engage with these proceedings, her account has consequently not been tested and that impacts on the weight her account is given. However, it does not follow that the court should then accept without question Z's account.
(3) Z's account of his relationship, including such observations about the depth of his love for Y and being blinded by the strength of those feelings, is undermined by a number of factors, including (i) the periods of time when Y was in Poland; (ii) his inability to provide any rational account about where Y was working and what it involved; (iii) why they needed or how they funded separate accommodation; (iv) his unquestioning acceptance of Y's account of X's birth when those around him doubted it in the way he and Mr O described. Z's actions and inconsistent accounts in 2017 in relation to Y's possessions left in the accommodation he was living in do not make sense. He first referred to the message exchanges between him and Y about them as taking place in May 2017, that was then changed to October 2017. Unfortunately the messages do not have any contemporaneous information on them regarding the date. Y leaving such critical documents in Z's possession in the circumstances where she gave the account she did to Z about X's birth make no sense either.
(4) Y's account is also undermined by a number of factors. First, the inconsistency between what she informed the local authority at the meetings in the period after X's birth about her lack of contact or knowledge about Z's circumstances and what appears to have been her contact with Z after the birth, her attendance at the event on 10 December and her continuing contact with Z. Second, how the evidence about the marriage in Turkey in August 2016 fits into the picture. Third, why she would leave a number of important and detailed documents in Z's possession for such a long period of time. Fourth, why she has not taken any continuing part in these proceedings bearing in mind the implications for X.
(5) As a consequence whilst the information given by Y to the local authority and the court in relation to her account of her relationship with and knowledge of Z were incorrect, it is far from clear what her motivation was. Whilst it may have been to secure an adoption placement for X in this jurisdiction, to do that in circumstances where she remained in contact with Z and left possessions in his control that risked providing Z with the necessary information as X's position does not necessarily support that position.
(6) Z denied he used any other names, or that he had worked. There is no evidence other than from Y that he used other names, and this was only first raised by Y in her email communication with the local authority in July 2019. As I have already set out, the evidence about the financial circumstances of Y and Z remains far from clear. In his oral evidence Z gave somewhat long and incoherent accounts about his financial circumstances, the financial arrangements regarding their accommodation and how he was able to fund Y's air fares with the result that I regard neither Y and Z have given a full and accurate account of their financial circumstances and resources. The position is further complicated by Z's letter to the court dated 17 April 2020 where he alleges Y deceived him to exhort money from him.
(7) Whilst it is right the discussions with the mother and the social workers took place without an interpreter, that was offered, the mother declined and Ms L and Ms W's evidence is accepted that Y understood what was being discussed, both generally and in relation to the signing of the s20 agreement. This is supported by Y's position in her statement and through her legal representatives in the care proceedings and by the discussions that took place at court on 14 December with an interpreter present.
(8) Z's account of this period does not stand up to close scrutiny. On his account X had died and a year later he still had no information about the circumstances of X's death and none of the communications between him and Y raise this issue. This was in the context when those around him, his family and Mr O, did not believe Y's account in the first place. What remains inexplicable is the delay in Z taking any steps to get anyone to make enquiries on his behalf, looking at the possessions left by Y earlier than he did and then the further delays once, on his account, he became aware X was still alive. Even taking account of his difficulties in getting legal advice, with the detailed information he had, bearing in mind the importance of what was at stake, and the wider support he had, it is difficult to understand why there was such a long gap before any effective communication was made with the local authority.
(9) The position the court is left in is that whilst it is clear Y and Z had a relationship, that it was an intimate relationship that resulted in Y becoming pregnant with X and giving birth to him the nature of the relationship leading up to the birth and afterwards is more complex. On the information the court has it is not in a position to reach any further conclusions regarding the nature and extent of the relationship other than during the pregnancy and afterwards Y and Z remained in contact, spent some time together, probably limited to some weekends, as evidenced by the photographs and the extent of that relationship was not disclosed by Y to the local authority or the court in the care or in connection with the adoption proceedings. From about April 2016 Y was mainly based in accommodation in Uxbridge and Z in St Mary's Road, followed by Dereham Road for about a month then Wellwood Road from about September/October 2016.
(10) It is more likely than not that Y did inform Z that X had died at birth, this is supported by the account given by Mr O and in a copy text dated 1 November 2016 between Z and a friend (which was not disclosed until November 2020). What is not clear is why Z remained the only person who believed that at the time and the reasons for his continuing belief about that until October 2017. Z's response of being 'blinded by love' lacks credibility in the context of the evidence about the nature of the relationship between Z and Y, in particular after 10 December.
(11) The information the court has from the local authority and the court records is that notification to the birth father and any further information about him was repeatedly raised, orders were made and enquiries undertaken. There is no suggestion that Ms L and Ms W, the local authority and the court did other than act in good faith on the information available.
(12) Whilst part of Z's position is that he is not responsible for the delays that have taken place again that too needs careful analysis. If his position is that he accepted Y's account that X had died at birth, it is difficult to understand why he did not raise any further issues about that with Y, bearing in mind the willingness of his church to assist with any funeral arrangements and what he understood was a court case Y had in connection with the birth. X's position simply did not feature again in Z's evidence in the communications between him and Y in the time up to October 2017. In addition, even making all due allowance for the difficulties Z is in, his actions after October 2017 resulted in the delay in contacting the local authority and the delay in these proceedings. By way of an example in these proceedings, the failure to disclose the material that was in the possession of his solicitor in October 2019 and August 2020 until the statements signed on 9 November 2020 remain inexplicable.
(13) To his credit in parts of his oral evidence Z demonstrated insight and understanding about X's position and the security of his placement with Mr and Mrs A. As well as highlighting the difficulties for X, Z recognised the difficulties he would have in managing and welcomed the idea of any support that could be available for him. Whilst he could only see such help through the lens of a staged process that would result in him being introduced to X, the fact that he recognised it would be helpful to have such support is likely to benefit X in the long term, irrespective of the outcome of these proceedings.
(1) As the court has acknowledged above, it is acutely aware of the significance of these proceedings for the people concerned, in particular Z, Mr and Mrs A and X.
(2) I accept the submissions of Ms Cronin that the provisions in the Fraud Act 2006 do not apply in this case. There is simply no basis upon which it could be said that the gain or loss is in money or other property, as set out in s5.
(3)This court is guided by the principles outlined by the line of cases summarised by the former President in Re O set out above, which, as the cases demonstrate, include consideration of the welfare of the child concerned as part of the court's decision as to whether the circumstances are highly exceptional. As was set out in Re O 'The fact that the circumstances are highly exceptional does not of itself justify revoking the adoption order'. Where, for example, there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice, but that can't be in a vacuum. As Sir Thomas Bingham MR stated in Re B ' I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud'[emphasis added]. Ms Obi-Ezekpazu has sought to suggest that this is as of right, which is not supported by the authorities. It is of note that Re B states it could be set aside, not that it will.
(4) I am satisfied on the information the local authority and the court had no further steps could or should have been taken. I accept the evidence of Ms L and Ms W that they had nothing to suggest Y or the information she was giving was other than genuine. The information the court was given was addressed with orders, such as disclosure orders. Within the adoption proceedings suitable enquiries were made through CFAB regarding the position in Poland and whether Y's mother would be in a position to care for the child. At each stage the local authority and the court took such further steps it could to seek to find and inform X's birth father.
(5) At the time of X's birth and relinquishment there was no family life established as between Y and Z. Y was living in Uxbridge, had been there for some time with only periodic visits from Z, there was a short period they lived intermittently together at Dereham Road and Wellwood Road, although Y did not give up her accommodation in Uxbridge. Z reports Y was angry at the time of her pregnancy, did not want to marry Z and married another person in August 2016.
(6) Z undertook no enquiries following X's reported death. He had the name of the hospital, the date of birth and Y's name. Those around Z at the time did not believe what Y said and told Z to question X's claimed death. Y informing Z not to attend the hospital and Z's reasons for not doing so lend support to what Y has said is Z's primary concern, namely his ability to stay in the UK. The longer Z took no action to enquire about the circumstances of X it becomes increasingly clear that his primary focus is his own position.
(7) The further delays during 2017, when Z took no steps to find out more about X's position or look at the possessions left by Y, meant a further 12 months passed with little being done by Z in relation to establishing the position about X. The October 2017 letter sent on Z's behalf , the failure by Z to take any steps to follow that through (when he had access by then to over 40 pages of detailed information from Y's possessions) for nearly 12 months and then further delays prior to this application were in part avoidable. Z had the support of his church and Mr O. I agree with Ms Cronin the claim by Z of fraud and breach of natural justice have to be looked at in the context of all the information the court has, including the steps taken by Z and any reasons that may lay behind them. I am satisfied that Z deliberately refrained from investigating the report of X's death driven by his own position and when he learned of the deception a further 15 months passed before he made the application the court is considering today. Each of those actions by Z do not stand up to close analysis. In my judgment Z could and should have taken steps earlier than he did.
(8) The issues in this case do need to be considered in the light of the guidance given in A, B and C [2020] EWCA Civ 41 where the court would consider matters that may justify overriding the mother's request not to notify the child's father or relatives. They include matters such as whether the father has parental responsibility, whether there is an established or potential family life, the substance of the relationship and the likelihood of a family placement. Whilst this situation is very different on the facts it is relevant that Z did not have parental responsibility, a potential family life with Y or family support here.
(9) As was made clear in Re O the fact that the circumstances may be highly exceptional does not of itself justify revoking an adoption order. The court cannot ignore the consequences for X. The revocation of the adoption order would restore the status quo ante. It would re-instate Y's parental responsibility. As she appears to have no wish to assume X's care there would need to be further court proceedings, including consideration as whether an adoption order should be made in favour of Mr and Mrs A. Such a position on the evidence the court has would place X at real risk of significant harm due to the uncertainty regarding his identity, the undermining of his secure legal relationship with Mr and Mrs A and close family relatives and what Ms Cronin refers to as his 'lived and secure identity'. Such fundamental changes are beyond X's current understanding and would very likely have long term adverse consequences for his welfare needs, as the Children's Guardian has set out.
(1) As Re B (A Child: Post Adoption Contact) [2019] EWCA Civ 29 makes clear the relevant legal principles remain unchanged that it will only be 'in an extremely unusual case that a court will make an order to which the adopters do not agree'.
(2) Mr and Mrs A have consistently said they will support indirect contact and do not rule out direct contact in the future but wish to retain their discretion as to if and when that should take place. So, they do not agree to any order at this stage or for the foreseeable future.
(3) I accept Mr and Mrs A's evidence, supported by the Children's Guardian, that direct contact should not take place or be considered in advance of the necessary life story work with X. This is based on their knowledge of X and his current needs.
(4) The life story work in this case is not going to be straightforward due to the complexity of the background and Mr and Mrs A have actively sought advice and assistance about this.
(5) I am satisfied that in the circumstances of this case there is a risk of the proposed application disrupting X's life to such an extent that he would be harmed by it. Z has, for understandable reasons, an unrealistic expectation about future contact with X. His oral evidence demonstrated that he wished it to happen sooner rather than later and showed little appreciation of the impact of that on X or those who care for him. Also, there is a risk that Z has not fully accepted Mr and Mrs A's role, as was demonstrated by the varying answers he gave in oral evidence about his wish for the outcome of these proceedings.
(6) Whilst Z's connection with the child is important he has no established relationship with X and X has limited, if any, knowledge of him. It is going to require sensitive work and support for X before there could be consideration of any direct contact.
(7) The general submissions about the research made by Ms Obi-Ezekpazu are relevant in so far as such research helps inform the courts approach but each case must be considered on its own particular facts.