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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (Revocation of Placement Orders) [2020] EWCA Civ 1598 (27 November 2020) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1598.html Cite as: [2020] 4 WLR 167, [2020] EWCA Civ 1598 |
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CIVIL
DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LIVERPOOL
HH Judge Sharpe
LV593/19, LV599/19, LV600/19
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF C (CHILDREN) (REVOCATION OF PLACEMENT ORDERS)
Strand, London, WC2A 2LL |
||
B e f o r e :
(Vice President of the Court of Appeal, Civil
Division)
LORD JUSTICE BAKER
and
LORD JUSTICE PHILLIPS
____________________
A MOTHER |
Appellant |
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- and - |
||
A LOCAL AUTHORITY (1) A FATHER (2) SC, LC AND TC (3) TO (5) (by their children's guardian) |
Respondents |
|
-and- |
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JA |
Intervener |
____________________
Lorraine Cavanagh QC and Matthew Carey (instructed by Local Authority Solicitor) for the First Respondent
Edward Devereux QC and Alexandra Hewitt (instructed by BDH Solicitors) for the Second Respondent
Karl Rowley QC and Mark Senior (instructed by Berkson Globe) for the Third to Fifth Respondents
Frank Feehan QC and Liz Brennan (instructed by Morecrofts) for the Intervener
Hearing date: 12 November 2020
____________________
Crown Copyright ©
LORD JUSTICE BAKER :
Background
"I have considered extensively whether it would be possible for the children to return to their mother's care and, if so, what support would mitigate the risks identified in this assessment. Unfortunately, I am not convinced there is any realistic level of support which would guarantee the safety and security of the children moving to live with their mother, at this juncture. S's emotional needs present serious risk of her regressing, enduring further trauma through being reminded of her adverse experiences, confusion and placement breakdown. Furthermore, there is no realistic level of consistent support from the same caregiver, or any person who is familiar with all children, which would alleviate pressures on [the mother] who will be expected to meet the needs of four to seven children at any one time a very demanding and pressurised task, one which is untested."
The Law
"(1) The court may revoke a placement order on the application of any person.
(2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless
(a) the court has given leave to apply, and
(b) the child is not placed for adoption by the authority.
(3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change of circumstances since the order was made.
(4) If the court determines, on an application for an adoption order, not to make the order, it may revoke any placement order in respect of the child.
(5) Where
(a) an application for the revocation of a placement order has been made and has not been disposed of, and
(b) the child is not placed for adoption by the authority,
the child may not without the court's leave be placed for adoption under the order."
"(1) Subsections (2) to (4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (amongst 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) 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 it 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.
(6) In coming to a decision relating to the adoption of a child, a court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, 'coming to a decision relating to the adoption of a child', in relation to a court, includes
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of certain order) .
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
."
"The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family."
"the principle that adoption of the child against her parents' wishes should only be contemplated as a last resort when all else fails. Although the child's interests in an adoption case are "paramount" the court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents or at least one of them."
At paragraph 198, Baroness Hale of Richmond, having reviewed the case law of the European Court, concluded:
"It is quite clear that the test for severing the relationship between parent and children is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short where nothing else will do."
"49. In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that is therefore chosen without any particular consideration of whether there are internal deficits within that option.
50. The linear approach, in my view, is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare.
.
54. In mounting this critique of the linear model, I am alive to the fact that, of course, a judgment is, by its very nature, a linear structure; in common with every other linear structure, it has a beginning, a middle and an end. My focus is not upon the structure of a judge's judgment but upon that part of the judgment, indeed that part of the judicial analysis before the written or spoken judgment is in fact compiled, where the choice between options actually takes place. What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option is then compared, side by side, against the competing option or options."
"(1) The type of harm that might arise.
(2) The likelihood of it arising.
(3) The consequences: what would be the likely severity of the harm to [the child] if it did come to pass?
(4) Risk reduction/mitigation: would the chances of harm happening be reduced or mitigated by the support services that are or could be made available?
(5) The comparative evaluation: in the light of the above, how do the welfare advantages and disadvantages of [the child] growing up with his mother compare with those of adoption?
(6) Proportionality: ultimately, is adoption necessary and proportionate in this case?"
"16. In addition to those specific legislative matters the following principles can be drawn from the extensive case law which has developed, but in particular from the landmark decision of Re B (A Child) [2013] UKSC 33:
(a) the paramount consideration for a court when considering an outcome for a child is that child's welfare;
(b) it is a principle of the law that the welfare of a child is best met by maintaining the connection with birth parents to as full an extent as possible;
(c) that principle is underpinned by application of the least interventionist principle enshrined in s.1(6);
(d) adherence to those principles reflects and respects both the importance of the right to family life set out in Article 8(1) of ECHR and the limited scope for interference with that right as set out in the exceptions in Article 8(2);
(e) interference in the right to family life, which is the right both of the parent and of the child, is parametered by necessity, proportionality and legality.
(f) As a consequence, the permanent severing of ties between a child and her birth parents is an outcome only to be ordered in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare.
(g) To arrive at that conclusion the possibility of parental care or, in the alternative, care by members of the wider birth family must be shown to be options which are not realistic either by reason of unavailability (i.e. they do not exist) or because such care cannot meet the welfare needs of the child.
(h) That option of parental or family care should not be rejected if identified deficits could be remedied through appropriate and proportionate support provided by the Local Authority, even if such support would be necessary for an extended period of time.
(i) In order to arrive at a valid conclusion that a child's welfare requires their permanent removal from parental/family care it is necessary to consider individually all of the competing options for care, to assess their respective strengths and weaknesses and then to look at those options against each other to ensure that every option is fully considered against every other option.
(j) Having done so and identified the outcome most able to meet the welfare needs of the child it is necessary to consider whether that outcome is itself a proportionate interference in the rights of the child."
The reasons for the judge's decision
"9. The mother now accepts that as at the conclusion of the care proceedings in November 2018 adoption was 'the only thing that would do' for each of her children given that neither she, the father nor any family member or other connected person was in a position to provide good enough care for them and that, given their ages at the time (almost 5, just over 2 and 8 weeks), therefore the 'last resort' of adoption was the only plan that met their best interests.
10. Following this hearing the mother seeks:
(1) Revocation of the placement orders made on 27 November 2018 in respect of each child (and thereafter the local authority be invited to formulate plans for the careful and measured rehabilitation of the children to her care, together with JA, under the existing final care orders failing which, an application to discharge the care orders will be made).
OR, given that the revocation of the placement orders would effectively eliminate any prospect of the children being placed for permanence via adoption,
(2) adjournment of the Court's decision on this application pending the completion (estimated by the children's guardian to take 6 to 8 weeks) and review by the Court, of a dual-structured piece of work with S and the mother.
As explored in evidence with the guardian, such a piece of work would have the dual aims of ascertaining the feasibility of rehabilitating S to the care of the mother and, in the event that was negative, effecting emotional closure for the child in respect of aspirations to return to the mother.
11. In the event that the Court determines that rehabilitation to the care of the mother cannot be achieved she wants the children to be happy, which in itself can only be achieved by permanence and a sense of belonging.
However, she urges the Court to consider commenting positively in its judgment on the following:
(a) Her willingness to meet the adoptive carers and her intention to make that beneficial for them especially in terms of providing honest information;
(b) Her willingness to be available to provide support to the adoptive carers on an ongoing basis;
(c) The imperative for the adoptive carers to honour the children's needs for contact (indirect and direct) with the mother (the father, others) and not to abrogate the fulfilment of that need by reason of their own fear(s) and misgiving;
(d) How creative 'contact' can be without the need for direct, in-person contact and the potential benefits of alternative forms of 'contact' for the children;
(e) Her love for the children, her acceptance of responsibility for causing them harm, her deep sorrow and regret for that and her wish for them to be happy.
12. In the event that the Court determines that rehabilitation to the care of the mother cannot be achieved she urges the Court to give close and thoughtful consideration to whether adoption remains in the best interests of S."
"Finally, in respect of the law I make it clear that there is no 'status quo', by which I mean no argument that because a decision was made in 2018 that placement orders should be made that that is now a default position which will determine this application absent some significant or exceptional situation. That was the position until the point where leave was granted. The granting of leave effectively levelled the field. Put simply the question in my view is not 'why shouldn't the placement orders remain?' but 'what does the welfare of these children now require?'"
"(a) What now are the possible outcomes for these children?
(b) Which of them best meets their welfare needs?
(c) If that outcome does not result in a return to the mother, is that undoubted interference in their right to family life both necessary and proportionate?"
He then (at paragraph 19) identified three possible outcomes, namely (a) immediate revocation of the placement orders coupled with the commencement of a transitioned return to the care of the mother under the care orders; (b) the adjournment of the revocation applications to enable a time-limited piece of work to be undertaken focusing on the likelihood of S being rehabilitated to her mother, or (c) the dismissal of the applications, with the result that the children would be introduced to and then placed with the prospective adopters. Although the mother apparently said in evidence that she favoured the continuation of foster care over adoption, no party advanced long-term foster care as an option. The foster carers with whom the children have lived since November 2018 are not able to look after the children on a permanent basis. The judge indicated that he did not regard long-term foster care as a prospect he should entertain.
"There is no doubt that [the mother] has effected a transformational change in herself, her life and in her significant relationships. During the course of the hearing witness upon witness, even those who do not support her overall aim, paid tribute to the difference [she] has made in her own life. I do not normally spend time in a judgment dealing with matters which are not in dispute but I think the following needs to be set out simply to record just what this mother has achieved."
He proceeded to set out in detail the transformation of the mother's life. Having summarised the background leading to the making of the care and placement orders he continued:
"24. That was then. In my experience that sort of record combined with the outcome which followed leaves most parents despondent, possibly even depressed and certainly defeated. They rarely come back from such a setback and invariably any progress which follows is limited.
25. [The mother] chose a different route.
26. Before me last week I watched a confident, capable and engaged woman. Despite her previous experience of the Family Court she engaged with the hearing with patience, courtesy and commitment, just as she has with the whole of the proceedings.
27. But [the mother] now has much to be confident about. In 2018 she met JA and started what has slowly developed and matured into an established, mutually supportive and committed relationship. That relationship has been thoroughly stress-tested not only by [her] participation in this litigation and all the pressure but by the envelopment of JA himself into these proceedings as an intervener ."
Noting how the mother and JA had coped with caring for his children and then the arrival of the baby N, the judge continued (at paragraph 30):
"What shone out from the mother during her evidence was not how testing, tiring and troubling all of this was but how much she had felt engaged and committed to the children whose care had become her responsibility."
At paragraph 31, he added:
"the couple are a team and that team has stepped up at a very difficult time for three children and provided them with a sense of security and stability which has served them well and which will have made a real difference to them this year."
"when weighed against all that has gone on since and all that this couple has achieved, in my view it would be wholly disproportionate to attach a significance to one night in 2019 which then sounded in my decision-making now. [The mother] and JA are not perfect and they can make mistakes like all of us. I move on."
"The position therefore in terms of her own development is that [this] mother has demonstrated a level and scope of change which on any basis justified the granting of leave because it raised her from a failed parent to a good one and therefore has opened the door to the reassessment which this hearing now requires. As change goes it is very significant, it is successful and, most importantly, it has been sustained when tested. It is difficult to see what else this mother could have done to turn around her own life and that needs to be set out here for her to know."
"Of the children an uncertainty lies in respect of S and what is best for her. S is nearly 7 years old, by any margin that is an age when even finding adoptive placement becomes less and less likely. In this case there is a placement available for S, but the question remains as to whether it can be a successful placement."
He noted that S had at one stage accepted that she would not be returning to her mother but subsequently, on learning about the mother's application, her expressed views had changed. She now said she wanted to return to the care of her parents, that is to say both parents, not simply her mother. The judge noted that S retained an awareness of the domestic violence between her parents and was visibly unhappy when voices were raised. He concluded that, notwithstanding the significant progress made by S and L since they were removed from their parents' care, the fact that S continued to display unease in such circumstances indicated the depth of the damage she had sustained over an extended period of time.
"51. The other potential catastrophe and linked to the first would be for S to endure a failed attempt at rehabilitation to her mother, to have her hopes of such a future raised up only for them to be dashed if the children had to be removed.
52. The effect of such a failure would be threefold. It would cause significant emotional harm to S if that failure was despite her own efforts and contrary to her wishes as opposed to her needs. It would almost certainly remove any prospect of a successful transition through to a permanent stable future for her. Finally, it would probably require separate consideration of the outcomes for the children with the likelihood that adoptive placements could be secured for only the younger two as they could still move on but S would be unable to form such permanent attachments to entirely new parents.
53. For S this would be a loss of huge proportions: an emotionally damaged little girl condemned to the care system, facing the loss of a settled future and enduring a permanent separation from her siblings to an adoptive placement to which she could not go."
"55. I start therefore from the position that [the mother] and JA want to offer home to the children and to do so would enable the reintegration of a family and so uphold the rights of those involved. The only reason why that should not happen is, if in doing so, it is unlikely to work and will not therefore give these children what they need and to which they are entitled. Children are not simply the products of their parents but have their own entitlements, needs and rights.
56. In my judgment these children need and are entitled to the following:
(a) a settled, stable and permanent future;
(b) delivered with immediacy given their ages, particularly S's:
(c) which enables them to live together on a long-term basis and to enjoy the benefits of their sibling relationships throughout their lives;
(d) where their immediate, medium-term and long-term needs can be met on a daily basis and with a degree of certainty, insofar as life ever carries a guarantee about anything, that that will continue.
57. In my judgment that outcome cannot be delivered by [the mother] and JA, despite all the positives recorded in this judgement, and that if the welfare of the children is to be the paramount consideration I must dismiss the application for revocation."
"It is no answer to say that the pressure points arise only at weekends when it is currently anticipated that most children will be sharing the same space. A permanent household of four children is itself a significant change for the children with whom I am concerned and the regular and frequent enlargement to seven brings with it an exponential increase in stresses, care requirements and emotional pressure points. It is not a household which lends itself to calmness, to stability or to individualised care time for children who need it."
"unable to conclude that what would result would be anything which would be more than coping and that such a low level of care would undoubtedly impact upon these children on an ongoing basis."
He continued (at paragraph 68):
"A coping household would be sufficient for children who have known no different and who have become emotionally and psychologically resilient as they became resigned to the fact that their parents' time had to be split across several siblings. This is not the evidence of what these children need. By reason of their damaged experience in early life the children need more than merely coping parenting and in my view would be unable to develop a mindset which allow them to flourish in regular and relative chaos."
As a result, he concluded:
"the risks for the children of attempting a migration to the care of [the mother] present too many risks which collectively cause me to conclude that the outcome would be a near certainty of placement breakdown and an inevitable separation of the children into different futures."
"(a) The risk of a failed reunification between the children and their mother;
(b) The risk of a difficult introduction and acceptance of JA as the mother's partner;
(c) The uncertainty over the introduction of N to the children;
(d) The inevitable re-introduction of their father to the children in the context of their adjusting to their mother's new arrangements;
(e) The introduction and attempted merger of the two sibships;
(f) The potential for difficulty for two sibships 'sharing' N:
(g) The possibility, which I acknowledge is not a current reality, of the two sibships having to fully merge due to situational change for JA's children, as has occurred in the past, and seven children attempting not only to get along at weekends but to integrate into a single household."
He continued (at paragraph 72):
"All of these risks are evidentially possible and some of them are probable. I do not need to be satisfied that they all will happen. I am however satisfied that they are all likely in one form or another and that to ignore them would be wrong."
"The immediate outcome of an adjournment would be delay, no clear outcome, an extension of the proceedings, a confusing picture for the children, a possibility of invoking the very catastrophic outcome to be avoided at all costs and, possibly, the potential complete loss of a placement for all three children which could maintain the sibship and so open up the possibility that a divided sibship would end as a wholly separated one."
The judge further concluded that the proposed assessment was flawed because it contained so many uncertainties.
"79. In my judgment it is clear from the evidence of what the children need that there is only one outcome which will meet their welfare needs both now and in the future and that outcome is for them to move forward towards a permanent non-family placement rather than to return to the care of their mother or even to test out that possibility by trying it out.
80. There are many downsides to an adoptive placement and some are inevitable. There is a real risk that S may not settle or do so over such a time as to destabilise matters for all three children. There is the high likelihood that even a successful transition will, at some point, cause an eruption for a child who suffers in later years a real sense of dislocation and loss, a possibility made all the greater for a child who remembers their parents and can access social media. There is the inevitable loss of the possibility of a continuing relationship with a birth family and the severance of [ties] which will undoubtedly cause a sense of dislocation, even if it does not result in a breakdown of the adoptive placement.
81. In arriving at the conclusion that I do I have to both acknowledge that the mother could literally have done no more than she has to achieve her aim but to equally acknowledge that for these children their needs now and in the future must be given greater precedence than even this mother's achievements. The problem for these children is not what their mother can offer them now but what they need now as a result of what they endured in the past."
"The support required to enable the children to achieve rehabilitation at home without incurring the risks of separation or re-removal would have to be sufficient to effectively remove from the parents nearly all other burdens and distractions to enable them to focus upon the needs of the children. That would amount to care by the local authority in the presence of the adults rather than care by the adults.
The obvious benefits of being brought up within the birth family are, in my judgment, significantly outweighed by the real risk of a failed attempt at rehabilitation which resulted in long-term damage to at least S and the possibility of a separation of the sibship. An outcome for even one child that left all three of them suffering the loss of a sibling or was causative of an inability to secure future permanence is a detriment which, in my view, outweighs the benefits of maternal care."
The appellant's submissions
"society must be willing to tolerate very diverse standards of parenting, including the eccentric, the barely adequate and the inconsistent. It follows too that children will inevitably have both very different experiences of parenting and very unequal consequences flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are the consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event, it simply could not be done."
Discussion and conclusion
"What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary"
In my judgment, the evaluation carried out by the judge in this case contained the degree of detail necessary in the circumstances, having regard to the way in which the case was argued before him.
LORD JUSTICE PHILLIPS
LORD JUSTICE UNDERHILL