![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Family Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> London Borough of Merton v LB [2014] EWHC 4532 (Fam) (19 December 2014) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2014/4532.html Cite as: [2014] EWHC 4532 (Fam) |
[New search] [View without highlighting] [Printable RTF version] [Help]
FAMILY DIVISION
Royal Courts of Justice |
||
B e f o r e :
(In Private)
____________________
LONDON BOROUGH OF MERTON | Applicant | |
- and - | ||
LB |
Respondent |
____________________
THE RESPONDENT appeared in person.
MISS CAREW appeared on behalf of the Guardian.
MR GRIFFIN appeared on behalf of the Prospective Adopters.
____________________
Crown Copyright ©
MR JUSTICE MOYLAN:
Application
(a) an application under Article 15 of Brussels IIa for jurisdiction to be transferred to Latvia. This application was made by the mother on 16th October 2014;
(b) an application by the mother for permission to oppose the adoption application, also made by her on 16th October;
(c) for determination or directions, an application made by the mother on 30th September 2014 for contact.
Summary of Proceedings
History
"I then heard a whimpering sound from a door directly in front of me. Once I had opened the door, I saw a room. In the left-hand corner of the room was a wardrobe and there were toys all over the floor. In the right-hand corner of the room against the window was a double bed that looked very soiled. On the wall beside the bed was a large area of damp and the wallpaper was coming away. There was a very strong and overpowering smell of urine and faeces in the room. I saw the child curled in an almost foetal position on the bed lying on a pillow. She sat up when we came into the room and she was holding an empty pink bottle. I went towards the child and she stood up and came towards me. I saw that her clothes were wet and that she was wearing a nappy that was falling off between her legs. Once in a different room, I could see that the child's clothes were wet and she was shivering. The strong smell was coming from her and it was clear that she had not been changed or cleaned all day. I removed the child's nappy to find dried and fresh faeces. The nappy was so swollen with urine that the child was unable to walk properly. There were also dried faeces on the child's body and her skin was soaked in urine that had leaked from her nappy and gone through her clothes."
2012 Judgments
"A court may only make a care order or supervision order if it is satisfied --
(a) that the child concerned is suffering, or is likely to suffer, significant harm; and
(b) that the harm, or likelihood of harm, is attributable to --
(i) the care given to the child, or likely to be given to her if the order were not made, not being what it would be reasonable to expect a parent to give to her ..."
"When considering whether to make a care order, I must have regard to the provisions of the European Convention on Human Rights and, in particular, Article 8, which requires me to ensure the maintenance of family life, in other words, to keep this family together unless separation is necessary in the best interests of the child. It can only be necessary if the plan of the local authority to separate the child from the parents is a proportionate response to ensure the welfare of the child."
"(31) … The principle has to be that the local authority works to support and, eventually, reunite the family unless the risks are so high that the child's welfare requires alternative family care …
(34) … Intervention in the family (must be proportionate), 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 in the relationship between the child and (their family) is only justified by the overriding necessity of the interests of the child."
"His evidence was compelling when he said that observation of CB with the foster carer and with her mother was clinically dramatic for him, such was the difference in her presentation. I found his analysis of the available evidence persuasive and compelling and unshaken in examination."
"The ascertainable wishes of CB are indicated by the way in which she has interacted with her mother. Her ambivalent and avoidant attachments show a disorganised attachment to her mother. She does not, of course, verbalise this, but her feelings are demonstrated. The comparison between her interaction with the foster carer and her interaction with her mother were described as dramatic in their difference by (the psychiatrist).
It is clear that CB enjoys contact with her mother and her sister, but in a safe and structured environment and in circumstances where she is now securely attached, after 27 months, to her foster carer. At her age her physical and emotional and educational needs are for safety and security, nurture and stimulation. She has an additional need to ensure that the progress which she has made, in the transition from the pre-August 2010 of global developmental delay to April 2011 and subsequent assessments of her significant progress in all developmental areas, is maintained and enhanced. This will have to be undertaken not by adequate parenting but by a parent skilled in dealing with emotional responses, able to give and receive appropriate guidance. The likely effect on CB of a change in her circumstances would be the transfer of her attachment.
The clear evidence of (the psychiatrist), which I accept, is that it needs to happen only once and without delay. It means that no chance can be taken with CB's next placement. It will need to be a forever placement as she will initially feel the loss of her foster care intensely. At four years of age the decision needs, for these reasons, to be taken now. A failure in placement for CB would be dramatic in view of her disorganised attachment history.
CB has suffered significant harm in the care of her mother. I find that CB has been subjected to significant neglect, both physical and emotional, causing her physical harm, emotional harm in respect of her primarily attachment and causing her to be developmentally delayed in all areas of her development. This I find is attributable to the care given to her by her mother.
I find that her mother is in no better position now to prevent harm to CB than she was when CB was removed from her care on 5th March 2010. The personality traits and psychological deficits identified by (the psychologist) will still be present: one can follow her avoidance of issues throughout these proceedings and see her denial in action. I have no doubt that if CB was to be returned now to her care, that CB would continue to suffer harm through emotional and physical neglect."
2012 Appeal and Judgment
Application to Revoke
Appeal to the Court of Appeal
"CB was assessed to have significant delays in all aspects of her development. The issue of the causation of this delay, whether by sensory deprivation and neglect or otherwise, was squarely before the court."
I refer to this because, during the course of the hearing before me, questions were raised by the mother (and the Latvian Central Authority) as to whether the cause of CB's developmental delay had been properly addressed by the court during the proceedings. It is clear that, as Ryder LJ says, the issue of causation was squarely before the District Judge and he expressed his conclusions on this issue, which I have referred to above.
"In a closely argued, detailed and most careful judgment, District Judge McPhee considered all of the evidence. He made findings of fact and exercised his discretion in a way which is clear. He identified the correct legal principles to apply and applied them to the facts as he found them. I can detect no error of law and nothing that can be described as plainly wrong. The conclusions he came to, both as respect the witnesses and their evidence, are coherent, consistent and well within the broad ambit that is afforded to a first instance judge.
15. The same level of care is evident in the conduct of the appeal by His Honour Judge Cryan. He, likewise, took four days and reserved judgment over a weekend. The judgment is a model of clarity and analysis. It takes every ground asserted, analyses the evidence, sets out all of the positives and the negatives and applies the appellate test to the findings and to the exercise of discretion by District Judge McPhee. Both appeals were dismissed and Thorpe LJ refused permission to CB's sister to bring a second appeal to this court.
16. It is important to understand that neither judge accepted the local authority's case without criticism. There was expressed disquiet of the local authority's management of the case and a careful critique of the, apparently, encouraging assessments. These assessments were described as over optimistic, superficial, lacking analysis and insight and insufficiently rigorous in the context of the medical evidence about the child and the mother's approach to her daughter's best interests whilst in care.
17. It is appropriate to observe that the medical and psychological evidence relied upon by District Judge McPhee was, effectively, unchallenged and was described as compelling. The child and adolescent psychiatrist's opinion was that CB's developmental delay was attributable to the care given to her by her mother, i.e. it was caused by physical and emotional neglect.
18. It is unsurprising, therefore, that before this court the attempt by the mother to characterise both District Judge McPhee and Judge Cryan as being plainly wrong on the facts or in the exercise of discretion had no prospects of success. Likewise, there is no discernible error in the principles of law identified or their application by either judge.
19. That is not to say that the mother, ably assisted by her McKenzie Friend, did not avert to their complaints about the previous decision making. The court had a very significant volume of materials expressing their strong opinions on the factual evidence, the opinions of the experts, the validity of the section 20 accommodation agreement, the pre-proceedings poor practice of the local authority, various internet based conclusions on the psychologist's opinions and their assertions that procedurally and substantively the Judges were plainly wrong and thereby erred in law. I regret that, in light of the conclusions of District Judge McPhee which were not dislodged on appeal by Judge Cryan, these complaints taken individually or together do not survive scrutiny. The conclusions of District Judge McPhee are unassailable and Judge Cryan was right to uphold them." Accordingly, the mother's appeal was dismissed."
2013 Contact Application
"The need for CB is now to settle in her new home without fear of further court cases. I am firmly of the view that face-to-face contact for her now and in the foreseeable future would be positively harmful in the likely emotional disturbance and upset it would cause to her. The mother has shown herself to be persistent and resourceful and it is clear that she will leave no stone unturned in her effort to reverse the earlier decisions. Sadly, that stance simply now underlines how far apart her case is from the factual situation of her daughter trying to settle in a new home with a new family. It is often said - and it is particularly apposite to this case – that, where a birth parent cannot be supportive of a child moving on to a new life and to a new family, it would be inappropriate to order face-to-face contact because the risk of disruption is too great. The entire process has lasted three years, two of those in court. It could not possibly be right after that length of time to take any action which might undermine the best progress that the child has had in those three years of moving to a permanent prospective adoptive family."
Summary of Legal Provisions
"When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background."
"States Parties that recognise and/or permit ... adoption shall ensure that the best interests of the child shall be the paramount consideration."
Evidence and Submissions
Latvian Authorities
"If CB were moved from her current carers, she would struggle to build new attachments as she would have lost any belief in them lasting. She would be more likely to defend herself from making new attachments with the resultant deterioration in her emotional health and the development of behavioural problems."
"CB has an attachment disorder from which she is slowly recovering. Reintroducing her mother now without a good therapeutic reason, I believe would be detrimental, delay her recovery and cause her great distress."
Legal Framework and Determination
Article 15
"where at any stage of the proceedings on an application made to a court in England and Wales for a Part I order or for the variation of a Part I order, it appears to the court … (b) that it would be more appropriate for those matters to be determined in proceedings to be taken outside England and Wales, the court may stay the proceedings."
I doubt that the provisions of this section apply in the circumstances of this case. In any event, the principles applicable would be the general principles applicable when it is contended that there is a more appropriate forum where, to quote from Spiliada Maritime Corporation v Consulex [1987] AC 460: "the case may be tried more suitably for the interests of all the parties and the ends of justice". In this exercise the child's welfare is not paramount, but it is, nevertheless, very important: Re V (Forum Conveniens) [2005] 1 FLR 718.
Section 47(5)
"[73] There is a two stage process. The court has to ask itself two questions. Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question, we think it unnecessary and undesirable to add anything to what Wall LJ said."
This is a reference to what Wall LJ, as he then was, said in Re P (Adoption: Leave Provisions) [2007] 2 FLR 1069 at paragraphs 30 and 32, where he said:
"[30] … The change in circumstances since the placement order was made must … be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings …
[32] We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents in the position of S's parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable. We, therefore, take the view that whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application."
Returning to the judgment in Re B-S:
"[74] In relation to the second question - if there has been a change in circumstances, should leave to oppose be given? - the court will, of course, need to consider all the circumstances. The court will, in particular, have to consider two interrelated questions: one, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors, we make the following points:
(i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parents' care.
(ii) For the purposes of exposition and analysis, we treat as two separate issues the questions of whether there has been a change of circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined. In many cases, the one may very well follow from the other.
(iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave.
(iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and positives, all the pros and cons of each of the two options. That is either giving or refusing the parent's leave to oppose.
(v) [I have referred to this paragraph above].
(vi) As a general proposition, the greater change in circumstances (assuming, of course, that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be, if leave to oppose is to be refused.
(vii) The mere fact that the child has been placed with prospective adopters cannot be determinative nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed, the greater the adverse impacts of disturbing the arrangements are likely to be.
(viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child throughout his life ..."
"In addressing the second question, the judge must first consider and evaluate the parent's ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, paragraph 59) is whether the parent's prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter."
Then in paragraph 21:
"In evaluating the parent's ultimate prospects of success if given leave to oppose, the judge has to remember that the child's welfare is paramount and must consider the child's welfare throughout his life. In evaluating what the child's welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child's welfare are such as to lead the judge to the conclusion that the parent's prospects of success lack solidity."
"I wish to emphasise with as much force as possible that Re B-S was not intended to change and has not changed the law. Where adoption is in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. The fact is that there are occasions when nothing but adoption will do and it is essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs.
45. The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there. I do not resile from anything I said either in Re E (A Child)(Care Proceedings: European Dimension) [2014] 2 FLR 151 or Re M (A Child) [2014] EWCA Civ 152, but for present purposes they are largely beside the point. The Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. As long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less."
In paragraph 50 he said:
"The fundamental principle as explained in Re B, is, and remains, that where there is opposition from the parent(s), the making of a care order with a plan for adoption, or a placement order, is permissible only where, in the context of the child's welfare, "nothing else will do". As Baroness Hale of Richmond said in Re B paragraph 198,
'the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, when nothing else will do'."
(a) the circumstances in which CB was found on 5th March 2010, coupled with the previous incident in September 2009;
(b) that the mother had been found by a chartered clinical psychologist to have maladaptive personality traits;
(c) the conclusion of a child and adolescent psychiatrist that CB had a disorganised attachment to her mother and that her developmental delay was due to neglect, both physical and emotional, whilst in the care of her mother. The psychiatrist referred to CB's disturbed emotional and behavioural presentation;
(d) a parenting assessment which concluded that the mother had very little insight into her past circumstances and limited understanding of CB's needs;
(e) the evidence from the psychiatrist that CB had a particular need to move only once and without delay and to a placement which would provide long term stability.
"The placement needs to be one which understands and recognises the harm which she has suffered and is able to deal with her more complex emotional needs."
DJ McPhee concluded that CB needs to receive care which will "remedy significant deficits in her early child care and (enable her to) move towards her majority better equipped to deal with adult life".
Contact Application