![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales High Court (Family Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Prospective Adopters v SA (Father) (Rev 1) [2015] EWHC 327 (Fam) (17 February 2015) URL: https://www.bailii.org/ew/cases/EWHC/Fam/2015/327.html Cite as: [2015] EWHC 327 (Fam) |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Help]
![]() ![]() ![]() ![]() ![]() ![]() ![]() | ||
FAMILY
DIVISION
Strand, London, WC2A 2LL |
||
![]() |
B e f o r e :
____________________
PROSPECTIVE ADOPTERS |
Applicants |
|
- and - |
||
SA (father) |
1st ![]() | |
- and - |
||
TB (mother) (By the Official solicitor) |
2nd ![]() | |
- and - |
||
A London Borough |
3rd ![]() | |
- and - |
||
![]() ![]() ![]() (By ![]() ![]() ![]() |
4th ![]() |
____________________
Respondent
The 2nd
Respondent
was not
represented
Emily James (instructed by London Borough Legal) for the 3rd
Respondent
David Vavrecka (instructed by Creighton & Partners) for the 4th
Respondent
Hearing date: 10 February
2015
____________________
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children
and members of their
family
must be strictly preserved. All persons, including
representatives
of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Mr Justice Mostyn :
i) under section 31 Children
Act 1989 concerning the four
children
of TB (the mother) and SA (the father);
ii) under section 31 Children
Act 1989 concerning the
child
of the father and his second (polygamous) wife (SSB), his first cousin; and
iii) in the Court of Protection under the Mental Capacity Act 2005 concerning the mother.
i) By Judge O'Dwyer dated 29 January 2010 following a fact-finding hearing concerning the four elder children.
ii) By Judge O'Dwyer dated 20 July 2010 where he adjourned the disposal hearing for further assessments.
iii) By Judge O'Dwyer dated 17 January 2011 where he made final care orders in respect
of all four
children
and placement (for adoption) orders in
respect
of the younger two.
iv) By me dated 13 September 2013 where I made a supervision order in respect
of the
child
of the father and SSB. Following that judgment a further
child
was born to the SSB and the father.
v) By me dated 17 December 2014 in the Court of Protection reported
as London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 53. By that judgment, inter alia, I found that the mother lacked capacity and directed that the local authority should find a supervised placement for her away from the father but with limited contact in his favour.
" the parties began in 1999 or 2000 their married life, this man and this incapacitated woman, and they had fourchildren:
STH, born on 1 October 2001, a girl; STM, born on 17 March 2003, a girl;
SSM,
born on 7 January 2009, a boy; and SHT, born on 22 January 2010, a boy. All these
children
were the subject of care proceedings mounted by the London Borough of Tower Hamlets against this mother and this father. Those proceedings were heard over many days and many occasions by Judge O'Dwyer and
resulted
in a fact finding judgment on 29 January 2010 and two further judgments on 20 July 2010 and 17 January 2011. The consequence of those three judgments were that all the
children
were
removed
permanently from these parents and have been placed for adoption In the course of his first judgment on 29 January 2010, the judge made what he described as grave findings against both parents but principally against the father, he having
recognised
in
relation
to the mother that she had disability, was unable to
represent
herself, that she has always lacked capacity to care for her
children,
and she is in
receipt
of a great deal of support from the local authority."
"So far as SA is concerned heremains
living at 9 Emerald Mansions. There he is visited on 2 or 3 occasions each week for 4 to 5 hours by SSB, YSY and ISS. If SSB goes out he looks after his daughters unaided. Additionally he socialises in public places with SSB, doing things like shopping. He intends to play a full part in the upbringing of his daughters."
"The fourchildren
of TB and SA are all in care. STH (13) and STM (11) are in the same placement and the plan for them is long term fostering. SA has contact with them once every four months for 1½ hours. The plan for
SSM
(nearly 6) and SHT (nearly 5) was adoption. It has not been possible to find adopters for SHT, and so he being matched with his current carers for long term foster care.
SSM
has been placed with adopters and an adoption application has been made. Pursuant to section 47(5) Adoption and
Children
Act 2002 SA seeks leave to oppose the application. By an order made by Judge O'Dwyer, with my consent, dated 4 December 2014 that application and the adoption application itself are allocated to be heard by me, and will be in the New Year. Obviously I say nothing about the likely
result
of those applications other than to observe that
SSM
has been with his current carers since he was 5 days old.
There is inter-sibling contact and this will continue ifSSM
is adopted."
"It would appear that [SSB's] application [for indefinite leave toremain]
has been denied and that she has mounted an appeal. The appeal is to be heard on 12 December 2014. If that fails she will make a different application within the Immigration Rules for leave to
remain.
As with immigration law and procedure generally the picture is extremely murky. However, on any view she and the
children
have a good prospect of being allowed to stay here."
Leave under section 47(5): the legal principles
(1) An adoption order may not be made if thechild
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).
(4) The second condition is that
(a) thechild
has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) either
(i) thechild
was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the
child
was at least six weeks old, or
(ii) thechild
was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.
"Where an agreement to which this section applies is for the time being subsisting and on an application by either party the High Court is satisfied either (a) that byreason
of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made the agreement should be altered so as to make different financial arrangements the court may by order make such alterations in the agreement as may appear to the court to be just in all the circumstances "
"We think that a change in "the circumstances in the light of which any financial arrangements were made" means something quite outside therealisation
of expectations. The parties make their bargain upon certain basic facts and expectations. When those facts unexpectedly change, or those expectations are not
realised,
there is then a change of circumstances which may produce unfairness. Had the legislature intended to give a power to the court to vary agreements as it may vary maintenance orders, it could have said so in terms similar to the sections which
regulate
variation of maintenance. It did not, we think, intend to
remove
entirely the stability of agreements, but only to do so when injustice was caused by a change in certain circumstances."
"If, and only if, the court considers that it is in the best interests of thechild
to make her (or him) a party, the door opens upon a discretion to make her so. No doubt it is the sort of discretion, occasionally found in procedural rules, which is more theoretical than
real:
the nature of the threshold conclusion will almost always drive the exercise of the
resultant
discretion."
i) Re
P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069
ii) Re
W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153
iii) Re
B-S (
Children)
[2013] EWCA Civ 1146 [2014] 1 WLR 563
"In our judgment, analysis of the statutory language in ss 1 and 47 of the 2002 Act leads to the conclusion that an application for leave to defend adoption proceedings under s 47(5) of the 2002 Act involves a two-stage process. First of all, the court has to be satisfied, on the facts of the case, that there has been a change in circumstances within s 47(7). If there has been no change in circumstances, that is the end of the matter, and the application fails. If, however, there has been a change in circumstances within s 47(7) then the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings is opened, and the decision whether or not to grant leave is governed by s 1 of the 2002 Act. In other words, 'the paramount consideration of the court must be thechild's
welfare throughout his life'."
And at para 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."
And at para 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 theirchild
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."
And at para 35:
"Thus, even if the parents are able, on the facts, to identify a change in circumstances sufficient to make it appropriate for the judge to consider whether or not to exercise his discretion to permit the parents to defend the adoption proceedings, the paramount consideration of the court in the actual exercise of the discretion must be the welfare of S throughout her life and, in that context, the court must haveregard
in particular to the matters set out in s 1(4) of the 2002 Act."
"where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have greatregard
to the impact of the grant of permission on the
child
within the context of the adoptive
family.
Of course, each case will depend upon its particular facts. The present case may be said to be a strong case in the sense that the mother had had no sight of J since the summer of 2007. J had been placed for over a year. J had been told of and had
reacted
to the making of the adoption order in the spring. To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the
child.
So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity."
Plainly nothing said there was inconsistent with Re
P. However, at para 28 Thorpe LJ stated that in his view a "stringent approach" was necessary, and earlier at para 17 that after the making of the care order, the making of the placement order, the placement of the
child,
and the issue of the adoption order application permission to oppose will only be granted "in exceptionally rare circumstances".
"Inrelation
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 inter-
related
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 hererelates
to the prospect of
resisting
the making of an adoption order, not, we emphasise, the prospect of ultimately having the
child
![]()
restored
to the parent's care.
ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in 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 thechild's
welfare
really
does necessitate the
refusal
of leave. The judge must keep at the forefront of his mind the teaching of
Re
B, in particular that adoption is the "last
resort"
and only permissible if "nothing else will do" and that, as Lord Neuberger emphasised, the
child's
interests include being brought up by the parents or wider
family
unless the overriding
requirements
of the
child's
welfare make that not possible. That said, the
child's
welfare is paramount.
iv) At this, as at all other stages in the adoption process, the judicial evaluation of thechild's
welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or
refusing
the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ's 'balance sheet' is to be encouraged.
v) This close focus on the circumstancesrequires
that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see
Re
P paras 53-54.
vi) As a general proposition, the greater the 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 thechild's
welfare must be if leave to oppose is to be
refused.
![]()
vii) The mere fact that thechild
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 thechild
"throughout his life". Given modern expectation of life, this means that, with a young
child,
one is looking far ahead into a very distant future upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the
child
if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in
Re
O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that "the court should take a medium-term and long-term view of the
child's
development and not accord excessive weight to what appear likely to be short-term or transient problems." That was said in the context of contact but it has a much wider
resonance:
![]()
Re
G (Education:
Religious
Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.
ix) Almost invariably the judge will be pressed with the argument that leave to oppose should berefused,
amongst other
reasons,
because of the adverse impact on the prospective adopters, and thus on the
child,
of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the
child
is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in
relation
to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.
x) We urge judges always to bear in mind the wise and humane words of Wall LJ inRe
P, para 32. We have already quoted them but they bear
repetition:
"the test should not be set too high, because 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."
i) Whether there has been a qualifying change of circumstances; and if so
ii) Whether the applicant has shown prospects of success of opposing the adoption order which have substance and solidity; and
iii) Whether it would nonetheless be in the child's
best interests to grant leave.
This case: the first stage
i) He has formed a second (invalid and polygamous) marriage to SSB by whom he has had two children
YSY and ISS who he is caring for as a secondary carer. YSY is no longer subject to a protective order and ISS never has been. Although he does not share a home with SSB his marriage to her is stable. No-one has ever suggested that domestic violence has featured in it.
ii) Contrary to the plan and expectation that SHT would be adopted this has not happened, because he has acute needs that have prevented him from being found new adoptive parents. He will stay with his current foster parents who either cannot or will not adopt him. Therefore adoption for SSM
is a unique treatment which is not to afforded to any of his full siblings. The effect of adoption is to sever legal ties with all his siblings. They will no longer be his legal brothers and sisters.
iii) He has shown that, in contrast to the findings of Judge O'Dwyer, that he can work closely and co-operatively with professionals. He particularly relies
on the
report
of the social worker Tony Stanley dated 2 February
2015
who had been assigned to the case concerning YSY. There have been no concerns
regarding
his conduct during contact sessions.
iv) He has successfully completed the first year of a two year NVQ childcare
course.
"14. I am satisfied that taking the above matters into account the welfare of the boys both emotional and physicalrequires
that the boys should be placed for adoption. No lesser order will do or can be managed for the welfare of the
children.
![]()
51. The father has not been able to change. He has notrecognised
his problems. His own evidence adamantly affirms this. It is clear he is not able to work successfully with professionals to assist the
children.
Despite some protestations in his oral evidence that he would accept assistance from professionals and work with them, it was clear that this would only be on his own terms.
52. It was clear from the Coral assessment that he is not able to accept and act on advice given to him without becoming angry and defensive. They concluded: "Based around our observations of contact, we gave advice and made suggestions to Mr A to support him to develop his parenting skills, but he was unable to accept these, however innocuous. Weremain
deeply concerned for the welfare of all the
children
during contact as our observations indicate that their father struggles to provide them with a safe and contained environment, even within a contact centre and with a supervisor present. He presented at times as very angry and controlling, and the behaviour of the
children
indicates that they are
regulating
their behaviour so as to optimise their interactions with their father, rather than that he is adapting and
responding
to their needs."
53. The Local Authority submit and I accept that Mr A lacks empathy and understanding of thechildren's
needs or an ability to
react
flexibly in order to provide for them both practically and emotionally. They
refer
to the Coral Assessment "Given Mr A's presentation over the course of this assessment, the extent of his denial
regarding
the concerns in the judgement, and his tack of insight into, and attunement with, his
children's
needs, it seems very unlikely that he would be able to provide 'good enough' caring for any of his
children,
even within the context of a robust ongoing professional presence within the
family
home." In my judgment that is manifestly well founded.
54. The Local Authority submit that the court can conclude upon all the evidence and taking into account the welfare checklist that care orders should he made inrespect
of all four
children
upon the final care plans proposed. The contact proposed between the parents and the
children
is appropriate (and approved by the
children's
guardian). Placement orders are appropriate in
respect
to the boys. They are vital in order to pursue the long term placement proposals of the Local Authority. Applying Section 52(1) (b) Adoption and
Children
Act 2002 it is submitted that the
children's'
welfare
requires
that parental consent is dispensed with. I find it is imperative that it is dispensed with as the boys
require
the long term placement plan for adoption as proposed by the Local Authority and supported by the
children's
Guardian. As will have been seen I accept these propositions."
"I found Mr A increasingly able to manage his moods and behaviours at times of stress. I experienced him, on the whole, to be willing to work with me. Mr A explained to me that he felt powerless and voiceless in a system of social services and courts, where decisions affected him so gravely. Nevertheless, earlierreports
of his aggression and anger toward professionals was not my experience. Mr A conducted himself in case conferences, core groups and other meetings in a calm manner. I directly challenged him on several occasions, as did Ms B (about the money he had promised) and he maintained his calm."
The second stage
"Nevertheless, it is quite clear that the test for severing therelationship
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, where nothing else will do." (her emphasis)
"I wish to emphasise, with as much force as possible, thatRe
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."
i) The qualifying change of circumstances which I have accepted. He argues that events have proved that with the help of his second wife SSB he is perfectly capable of caring for a small child.
Here he is strongly supported by the evidence of SSB.
ii) The final and irrevocable nature of an adoption order which severs all legal ties between him and SSM
as well as severing the legal ties between him and his brothers and sisters. He asks that if adoption is not being proposed for STH, STM, and SHT then how can it be said that "nothing else will do" for
SSM?
iii) The initial reluctance
of the proposed adopters to seek adoption, preferring instead to
remain
as long term foster-parents. In their statement the adopters said this
"Werequested
that
SSM
be placed with us as a long term foster
Child
but were told that due to his hyperactivity he would be moved to younger foster carers, but we could adopt
SSM
as we were not too old for adoption, subject to being approved. We found this logic extremely strange and nonsensical, but could not allow the potential risk to
SSM
of being moved from our care. We felt the Local Authority emotionally gave us no choice but to secure
SSM's
placement by way of an Adoption Order."
Accordingly, the father argues with some force, that if the adopters did not want an adoption order then why is it so important now that they should have one?
"Havingregard
to the findings made against father in the previous proceedings it is completely impossible that he could be considered as the sole carer and were a situation ever to present where it appeared that the father had assumed, either completely or largely primary care I would expect the local authority to take steps to apply for a care order"
i) SSM
is settled, integrated and functioning well in his de facto
family
with the prospective adopters, with whom he has been living since he was 5 days old. He is aware of the adoption application and very much wishes to be adopted. The first thing he said to his Guardian was "I want to stay in this house". He made it clear that wants to stay with the prospective adopters, their 5
children
and 8 grandchildren, forever.
ii) He is a 6 year old child
with a need for security, permanency and stability. He is aware of the adoption process he has a need for this to be
resolved
and to know for certain in which
family
he will grow up.
iii) He is thriving in his current placement and is aware that he has birth family.
The atmosphere in his current home is open and accepting of this. He will be supported to have ongoing contact with his birth
family.
Specifically he will have direct contact three times a year with his full brothers and sister and twice a year with his father.
iv) He is within an extremely well matched placement. He is being brought up as an observant Muslim and will attend lessons at the Mosque to read
the Koran.
v) He would be at risk of significant emotional harm if he were moved from the care of his prospective adopters. He would be at risk of significant emotional harm in his father's care as his father has not demonstrated the capacity to understand or meet his needs. Mr Stanley, the social worker on whom the father relies,
was clear in his view that the father would not be able adequately to care for
SSM.
vi) He will be assisted by the prospective adopters in having ongoing contact with his birth family
in the way which best meets his needs as he grows and develops.
vii) Notwithstanding their initial stance the prospective adopters strongly wish an adoption order to be made.
Conclusion