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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (A Child), Re  EWCA Civ 1874 (18 December 2003)
Cite as:  EWCA Civ 1874
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM COVENTRY COUNTY COURT
(His Hon. Judge Eccles QC)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE MANTELL
LORD JUSTICE CARNWATH
| M (A Child)
Miss P. Scriven QC and Mrs S. Gibbons (instructed by Jackson West) for the 2nd Respondent Father
Mr D. Hershman QC and Mr E. Kirkwood (instructed by Legal Services, Warwickshire County Council)or the 3rd Respondent Local Authority
Crown Copyright ©
Lord Justice Ward :
i) should he make a care order in respect of S who had been born on 23rd June 2002 and who is now only 18 months old; and
ii) should he free S for adoption; or
iii) should he accede to his father's application to adjourn those applications.
"… It remains a fact that no thought was given by the (paternal) family members to the consequences for S should he remain with the As for any length of time with Mr and Mrs A being led to believe that there was no-one else who could care for S."
"… good professional witnesses with S's interests well in mind. … Mrs King was more forceful than Ms Bateman and supported her views about the risk to S if his attachment to Mr and Mrs A had to be broken by reference to academic research that had not been put in evidence by any expert witness. Indeed there was no expert psychological evidence … My judgment in this case is that Mrs King was perfectly well qualified to form a view about S's attachment to the As and the risks inherent in breaking it without necessarily relying on academic works and I approach her evidence on that basis. Ms Bateman was a sensible and careful witness whose accuracy in recording relevant events and conversations I accepted."
"honest and decent but still fragile and vulnerable and significantly dependent on his mother when it came to judgments about what should become of S".
"a powerful influence within the family … and very subjective about the merits of keeping S within his birth family. As S's grandmother she cannot be blamed for the strength of her feelings …"
"Mrs C was very impressive. She was sensitive to the needs of children, genuinely willing and unselfish in putting herself forward as a potential carer for S and a thoughtful and mature witness. Mr C was also genuine and honest in expressing his wish to bring S into his family but I was not convinced that three days of discussion had enabled him fully to think through and to come to terms with the size of the task he was agreeing to in taking on his wife's cousin's son who, at the date of this hearing, does not even recognise his father but is attached to another family. I accept the evidence of both of them that they wanted to help disadvantaged children in putting themselves forward as foster carers, and plainly the local authority accept their qualities in this regard in agreeing that they should be eligible to foster children from the ages of 3 to 7."
"Mr and Mrs A have qualities as high as any known to the witnesses in terms of their personal integrity, awareness of child welfare issues, and commitment to securing the best possible outcome for those children committed to their care including S. They have as I was told adopted another child and that child is now part of their family and S is unaware of any difference between them."
"(1) Where, on an application by an adoption agency, an authorised court is satisfied, in the case of each parent ... of the child that –
(b) his agreement to the making of an adoption order should be dispensed with on a ground specified in s.16(2), the court shall make an order declaring the child free for adoption.
(2) No application shall be made under ss.(i) unless –
(a) it is made with the consent of a parent or a guardian of a child or
(b) the adoption agency is applying for dispensation under ss.(1)(b) of the agreement of each parent or guardian of the child, and the child is in the care of the adoption agency. (Emphasis added.)
(2A) For the purpose of ss.(2) a child is in the care of an adoption agency if the adoption agency is a local authority and he is in their care."
"… in a case such as the present where the child's permanent home is very much in issue, in my judgment, it is logical and correct to take the issues in sequence and for the judge to arrive at a conclusion as to where the child's permanent home should be and then, in the light of that conclusion, arrive at the further conclusion as to whether or not the parent's consent to adoption has being unreasonably withheld."
That was an adoption case but the approach should not be different. Nor was it held to be different in Re D (Simultaneous Applications for Care Order and Freeing Order)  2 F.L.R. 49 at 53 per Thorpe L.J.:-
"As a matter of ordinary sense, where a court considers an application for a care order together with an application for a freeing order, the application for the care order is the primary application. First, the court has to consider whether the threshold criteria have been established. … Thereafter, the judge has a restricted function to consider the consequences for the child. In this case the consequence advanced by the local authority was preparation for adoption. The judge did not share the local authority's conviction. Accordingly, he had the opportunity and the duty to express his reservations and to invite the local authority to reconsider a plan which he considered unwise. But for the judge to have said that if a freeing order is not made then a care order cannot be made is plainly wrong. That error seems to have contaminated his decision to determine these applications in an order that was plainly back to front."
i) Was the s.31 of the Children Act 1989 care threshold crossed? In this case it was common ground that S was likely to suffer significant harm attributable to the care likely to be given to him if the order were not made not being what it would be reasonable to expect a parent to give him. Here very sadly the mental infirmities of the parents rendered them incapable of caring for their son.
ii) If the threshold was crossed, what order should the court then make, the welfare of the child being the paramount consideration in determining that question. The court must consider the full range of powers available to it (s.1(1)(3)(g)) and then decide whether to make a care or a supervision order (s.31), or a residence and/or contact order (s.8) or even make no order at all if that would be better for the child (s.1(5)).
iii) The essential question for the judge is to decide where the child should live. If a ready and convincing answer is not available on the evidence before the court, then the judge will have to ask himself the further question whether or not an adjournment would secure the obtaining of additional evidence, properly admissible, to resolve any doubts and difficulties. Once the evidence is closed, the judge simply has to decide what order to make and to give reasons for making it.
iv) The case before us demonstrates the need to say a further word about the relevance of the care plan. The local authority are required to file such a care plan to explain how they propose to manage the child if placed in their care. The effect of a care order would be to confer parental responsibility upon them. The scheme of the Act is to give the local authority power to take the necessary decisions once the care order is made and the court has no supervisory role thereafter. At the hearing of the care application the judge can approve the care plan if so minded, he can agree with part and reject part, and he can even express his fundamental disapproval of it. If he does disapprove, he can ask the local authority to think again and, given the spirit of co-operation that exists between the local authorities and the courts, that request (for it is no more than that) is not likely to be ignored. But if there is an impasse, the judge has no power to impose his will upon the local authority and he may find himself in the uncomfortable position of voicing his disapproval but nonetheless being forced, in the absence of any viable alternative, to place the child in the care of the local authority. The court's only control can be in appropriate cases through a contact order.
v) If, but importantly only if, a care order is made, then the court can turn to freeing for adoption and ask whether, in the light of the circumstances in which the care order is made, and in the light of all the circumstances generally, the agreement of the parents to the making of the adoption order can be dispensed with. In this case the question was whether the father was withholding his consent unreasonably.
"I hope that it is apparent that the father and his family should not raise their hopes too high, nor should Mr and Mrs A feel that my decision involves any concern about the care they offer S. It is an arguably generous decision to afford a very caring birth family the best opportunity of arguing their case before me."
Were there no error of approach and this were a simple straightforward challenge to an exercise of discretion, I may have found it difficult to say that an eleventh hour reprieve was plainly wrong. But unfortunately his approach was flawed, and, there being an error of principle, the whole exercise of discretion is tainted.
"I have therefore, it seems to me, to consider not only the motives of those supporting the application, which in this case are honest and well meaning, but the objective basis for asking for time to carry out the assessment having regard to the best interests of S and the difference that an assessment of Mr and Mrs C might make to the outcome. In this connection there was cogent evidence both from Mrs King and Ms Bateman that it is overwhelmingly in S's interests for him to be adopted, and that a favourable assessment of Mr and Mrs C cannot alter that judgment. There is no evidence to the contrary before me at this stage, and in any event it is compelling evidence in my judgment."
"So, in the absence of any other evidence, there is no viable way in my view of securing S's short term and long term welfare except by ensuring his continued placement with Mr and Mrs A." [I interpose to observe that he was correctly back onto the care question]. "The question then arises, having regard to the cogency of the evidence of Mrs King and Ms Bateman, whether there is any realistic prospect of the court coming to a different view if Mr and Mrs C are assessed to be appropriate kinship carers. At this stage of the case, as I have indicated, I find the evidence of Mrs King and Ms Bateman compelling, and it is difficult to see what is likely to emerge in an assessment of Mr and Mrs C to bring about a different outcome. Mrs Gibbons [counsel for the father] submits that in the course of assessment it may be revealed that Mr and Mrs C have such personal qualities that they will be able to manage S's move from one attachment to another without causing him significant distress. It seems to me very speculative to give much weight to that chance.
44. Applying the conventional analysis therefore to an adjournment application, it would be difficult to conclude that in that case it would be "planned and purposeful", and indeed it would involve some, though minor, risk of harm to S in the prospective adopters' home if the decision was delayed." [I again interpose to comment that I would have expected the conclusion then to follow that the adjournment was denied but instead the judge moved immediately to adoption.] "The real problem, however, it seems to me, is that the purpose of proceeding to a final hearing is to enable the court if otherwise satisfied on the evidence to make the freeing order. Here the court can only do so if it dispenses with the father's consent on the grounds that it is being unreasonably withheld. If as here, the father withholds his consent and his decision falls within a band of reasonable responses to the situation that he and S and other family members find themselves in, having paid due regard to S's welfare, then the court is in the unsatisfactory position of making a care order without being able to secure the implementation of the care plan. In that event the court is no further forward in securing the best outcome for S's welfare. If consent, however, has been withheld unreasonably the court can then of course proceed to make the freeing order.
45. At this stage of the case, therefore, it seems to me that I have to form a view as to whether the father would be withholding his consent unreasonably … If the reasoning of the Court of Appeal in Re O (Adoption: Withholding Agreement)  1 F.L.R. 451 is applied, and the decision is that placement with Mr and Mrs A secured by adoption is the proper course to take to secure S's future, it would not be open to the court to find that [the father] was reasonable simply because he is free of blame and his mental illness has prevented him from caring for S and Mr and Mrs C came forward late in the day. The question, however, it seems to me is whether, if there is an opportunity for Mr and Mrs C to be assessed that does not jeopardise S's welfare to a relevant degree, he is withholding his consent unreasonably. In my judgment it would be artificial to proceed as if the application to adjourn had been refused, and then hold that in the light of the analysis in Re O, supra, [the father] was withholding his consent unreasonably."
"My conclusion is that where the court is being asked to remove a child permanently from his birth family, in a case where the extended family is looking after all the other children, [the father's] right under Article 8 to expect the local authority and the court to assist him to maintain his family life with S tipped the balance in favour of a finding that he is not being unreasonable in withholding his consent, pending an assessment of Mr and Mrs C, and in the absence of appreciable risk of harm to S." (I add the emphasis to show the dominance of the adoption question when the proper focus of attention should have been on where the child was to live.)
"There is a long line of European Court of Human Rights jurisprudence on that third requirement ["necessary in a democratic society"], which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child."
Lord Justice Mantell: I agree.
Lord Justice Carnwath: I also agree.