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Cite as: [2013] WLR(D) 151, [2013] 2 FLR 1393, [2013] 1 WLR 3720, [2013] Fam Law 785, [2013] WLR 3720, [2013] EWCA Civ 431, [2014] 1 FCR 50

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Neutral Citation Number: [2013] EWCA Civ 431
Case No: B4/2012/0492

Her Honour Judge Redgrave

Royal Courts of Justice
Strand, London, WC2A 2LL
25 April 2013

B e f o r e :



In the Matter of C (A Child)


Ms Deirdre Fottrell (instructed by Creighton & Partners) for the appellant (the natural father)
Mr Alistair G Perkins (instructed by the local authority) for the local authority and the adoptive parents
Hearing date : 17 December 2012



Crown Copyright ©

    Sir James Munby, President of the Family Division :

  1. C, as I shall refer to him, was born on 13 August 2007. The appellant was in fact, though he did not know it at the time, his father. C's mother was unable to care for him. On 16 August 2007, just three days after he was born, the local authority obtained an interim care order in relation to C from the Family Proceedings Court in accordance with section 38 of the Children Act 1989. The next day, 17 August 2007, C was placed with a foster carer with whom he remained until 28 October 2010. On 1 May 2008 the Family Proceedings Court made a final care order in accordance with section 31 of the 1989 Act, followed on 8 August 2008 by a placement order in accordance with section 21 of the Adoption and Children Act 2002. On 19 October 2010 C was matched with adopters. On 28 October 2010 he was moved to an interim placement while introductions began with the adopters. On 8 November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.
  2. Thus far, everything had proceeded as might have been expected. At this point I need to go back to the beginning.
  3. The appellant had had a brief sexual relationship with C's mother in late 2006 at a time when she was living with another man, R. The appellant learned that the mother was pregnant. He asked her if he was the father. She denied it and said she thought R was. The care proceedings were brought and continued on that basis. In 2009 the appellant resumed his relationship with the mother. According to him, it continued until about May 2011. A son, M, was born to them in September 2010. Towards the end of 2010, according to the appellant, his sister saw photographs of C and wondered whether he might be the father; the mother apparently laughed and said she was sure he was not. He says that to him she always said that R was the father, though he admits he began to have doubts.
  4. In about May 2011 the appellant became aware of the adoption proceedings. On 6 June 2011, and again on 20 June 2011, his sister approached the local authority. She was told that they should seek independent legal advice. The first directions hearing followed on 15 August 2011; the order made on that occasion recorded the local authority's agreement to carry out a DNA paternity test.
  5. On 3 October 2011 a DNA test report from Cellmark indicated that the appellant was C's father. On 18 October 2011 the results of the DNA test were communicated by the local authority to his solicitors and by them to the appellant. The very next day, 19 October 2011, he filed an application at the Principal Registry under Part 19 of the Family Procedure Rules 2010 seeking "permission to defend/oppose the adoption order" and permission to be joined as a party. The application was made pursuant to section 47(5) of the 2002 Act. It is to be noted that in response to the question "Does your application include any issues under the Human Rights Act 1998?" the answer given was "No". Directions were given by District Judge Malik on 20 October 2011, 7 November 2011 and 20 December 2011. On the last occasion he had a position statement from C's mother which set out her position very clearly: "I do not want my child to be adopted by strangers I wish to ask the court to place him with his natural father or allow his sister to adopt him".
  6. The appellant's application was heard by Her Honour Judge Redgrave, sitting at the Royal Courts of Justice (the hearing having been transferred at the last moment from Gee Street), on 6 February 2012. She had before her two statements from the appellant, two statements from his sister and a statement from the local authority's social worker. Having heard counsel for the appellant, as well as counsel for the local authority and a solicitor for the (then prospective) adopters, Judge Redgrave dismissed the application for reasons which she set out in an ex tempore judgment given the following morning at Gee Street. Her order provided simply that "the Father's application for permission to be joined as a party is refused." After the appellant and his representatives had left court, Judge Redgrave gave directions fixing the final hearing of the adoption application for 2 April 2012. Consistently with Rule 14.15 of the Family Procedure Rules 2010, no notice of the hearing was given to the appellant.
  7. Judge Redgrave's judgment is not that long. Given the importance of the matters at stake I must deal with it in some detail. Having summarised the history, in the course of which she referred more than once to C's brother, M, Judge Redgrave directed herself as follows (paragraph 5):
  8. "It was established in Re P that an application for leave to defend adoption proceedings under Section 47(5) of the Act is governed by Section 1 of that Act, which means that the paramount consideration of the court must be the child's welfare throughout his life. The application has two stages; first, the court has to be satisfied on the facts that there has been a change of circumstances, and only if there has been is the court under a duty to exercise its judicial discretion, applying the paramountcy test to decide whether to permit a parent to oppose the adoption proceedings."

    She continued:

    "In this case all parties agree that there has been a change in circumstances since the placement order was made, in as much as it is now known that the [appellant] is C's father. At the time the care and placement orders were made the local authority had no reason to disbelieve the mother and R about C's paternity and could not, in my judgment, be reasonably expected in the circumstances to launch an investigation to determine whether this was true."
  9. A little later (paragraphs 6-8) she added this:
  10. "The court must determine whether C's welfare requires the [appellant] should be given leave to be made a Respondent in the adoption proceedings with a view to opposing the grant of an adoption order and C being placed in his and/or his sister's care.
    In coming to a decision, the court is required pursuant to Section 1(3) of the Act at all times to bear in mind that in general any delay in coming to a decision is likely to prejudice C's welfare.
    Furthermore, the court is constrained to take into account those matters listed in Section 1(4) of the Act. None of those factors takes precedence over the other."
  11. At that point Judge Redgrave turned to her analysis of the circumstances of the case (paragraphs 8-12). It requires to be set out at some length:
  12. "C is too young for his wishes and feelings to be ascertained in respect of this application or indeed in relation to adoption. He is by all accounts a happy child, thriving in his placement, establishing bonds with his prospective adoptive parents and sister. Being adopted is likely to have some effect on him and his sense of identity in the future, and this would need to be sensitively handled by the adoptive family. C needs a stable, secure and loving home. He has never experienced being cared for within his birth family, and the only other home he has known was with [the foster carer] C has already experienced a major change of carer. He spent the first three years four months of his life with one foster carer, and his move from her via a bridging placement to his present home must have been a substantial upheaval. It is a monument to the good care he received from [the foster carer] that he was able to make this transition but he is likely to have suffered some emotional harm as a result of it. A further move would place him at risk of suffering further harm.
    In addition the above factors, the court is also required to consider the relationship C has with relatives, the value of such relationships continuing, their value to him, the ability and willingness of his relatives to provide him with a secure environment in which he can develop and have his needs met, the wishes and feelings of those relatives. I am satisfied that the [appellant] and C's paternal aunt are genuine in their desire to be involved in his life. I cannot assess their ability to provide him with secure accommodation on the evidence I have, but it is certainly not a case in which I would determine that there is no prospect of them passing such an assessment. However, in my judgment their statements that is two from the father, and two from [his sister] show that the driving force in this application has been the paternal aunt. The [appellant] was best placed to assess whether or not he could be C's birth father and I find it somewhat implausible that this did not occur to him after the mother's original denial until [his sister] began to pursue the matter. In any event, the father did not take any practical steps himself for some months after the issue was raised with him in December 2010.
    C has not developed any relationship with the [appellant] or the paternal aunt, and that in part is due to an unfortunate set of circumstances which involve [the mother's] lack of candour. If the [appellant] were to become involved in C's life it would require extensive assessments, which would take time and cause further delay in circumstances where there has already been substantial delay in finding a permanent home for him. Balanced against that is C has a father and a paternal aunt who want to be involved in his care, and a full sibling, a brother, M.
    All things being equal, a child has a right to be brought up by his birth parents. He has a right to family life, unless his welfare requires that this right should be displaced. I also acknowledge that the [appellant] has a right to family life unless C's welfare requires that that right should also be displaced. The father has lived in the United Kingdom for the past 12 years. He is an overstayer. I have been told by counsel that he has made an application for indefinite leave to remain but his current status means that he has no recourse to benefits and cannot engage in gainful employment. He is apparently being supported by his sister. It is unclear whether he lives with her or independently.
    There is little doubt that if the [appellant] had participated in the care proceedings the local authority would have been under a duty to assess him and the members of his family as long-term carers, and the outcome may have been very different. However, I have to deal with the circumstances which exist now. C is four and a half years old. He spent the first three years of his life in foster care and had to cope with being removed from the only home he had ever known. He has never had a relationship with either of his parents nor any of his siblings. His overriding need is for a secure and permanent placement in which he can form and maintain proper attachments. Interfering with his placement will put him at a serious risk of emotional harm and may well severely diminish his ability to form relationships in future. In all the circumstances of this case I am satisfied that C's welfare requires that the stability which has been achieved for him should not be threatened. It is in his best interests for him to be adopted. Accordingly in my judgement, it is not in the interests of C's welfare that the [appellant] should be given leave to oppose the application to adopt C and any further delay in the conclusion of these proceedings, ie the adoption proceedings, will be detrimental to that welfare. For those reasons the application is refused."
  13. For reasons that will become apparent in due course, it is necessary to set out events over the next few months in some detail. The account which follows has been pieced together from the documents on the file of the Civil Appeals Office (CAO), from information obtained by us from Judge Redgrave and from His Honour Judge John Mitchell, the judge in charge of the court at Gee Street (for whose assistance I am grateful), and from various documents kindly supplied at our request by the appellant's previous solicitors.
  14. Judge Redgrave had given judgment on 7 February 2012. On 28 February 2012 the appellant filed an appellant's notice, including grounds of appeal settled by counsel; not, I should add, counsel who appeared before us. What was sought was an order setting aside Judge Redgrave's order. No other relief was sought; in particular there was no application for a stay. It was now stated that the appeal did raise issues arising from the Human Rights Act 1998. It was said that the skeleton argument would follow within 14 days. The appellant's notice and grounds of appeal were served on the local authority and the adopters the next day, 29 February 2012.
  15. On 8 March 2012 the CAO sent the appellant's solicitors the standard form letter requesting certain information and documents, in particular the skeleton argument by 13 March 2012 and bundle of documents by 22 March 2012. The solicitors replied the next day, 9 March 2012, saying that they were awaiting the transcript of Judge Redgrave's judgment and confirmation of public funding from the Legal Services Commission (LSC). They made the point that counsel needed the transcript in order to consider whether leave to amend the grounds of appeal should be sought. They asked for an extension until 27 March 2012 for lodging the skeleton argument and until 3 April 2012 for lodging the bundle. In fact, we were told, the transcript was not requested until 13 March 2012. No explanation for this delay of over a month has been provided. The CAO replied on 13 March 2012 granting extensions until 28 and 30 March 2012 respectively.
  16. The day before, on 12 March 2012, the LSC had sent the appellant's solicitors notification of the refusal of public funding. On 14 March 2012 the solicitors lodged an appeal against the LSC's decision. The LSC's response was to require a copy of the transcript to be supplied before the funding appeal could be considered. On 22 March 2012 the solicitors chased both the transcribers and the court at Gee Street for information about the transcript. They were told by the transcribers that they had not yet received the recording from the court. They were told by the court that Judge Redgrave's clerk was away from the court until 27 March 2012 and that there was no way of knowing whether the release of the recording to the transcribers had been sanctioned. The same day, 22 March 2012, they wrote to the CAO with this information, seeking an extension until 6 April 2012. On 26 March 2012 the solicitors telephoned the CAO to explain their continuing difficulties in relation to obtaining the transcript and public funding; they were given an extension for lodging the skeleton and bundle until 6 April 2012.
  17. At this point I must return to the adoption proceedings. On 7 February 2012, as we have seen, Judge Redgrave had fixed the final hearing for 2 April 2012. Neither the appellant nor his solicitors were aware of this fact. The applicants, the adoptive parents, filed a position statement dated 1 April 2012. It included the following:
  18. "The Applicants' understanding is that no application was made to Her Honour Judge Redgrave for permission to appeal. The issue therefore is whether the Court should make the final Order sought by the Applicants (with the support of the Local Authority) or wait until the position regarding [the appellant's] appeal is clarified. The Applicants' Solicitors have tried to clarify the position but without success.
    The Applicants accept that it would be unwise to arrange an adoption visit for C until it is clear that permission to appeal has been finally refused, or the appeal itself dismissed."
  19. The matter came before Judge Altman on 2 April 2012. We do not have a transcript of his judgment, but there is a careful and detailed note prepared by the adopters' very experienced solicitor, Mr S. In relation to the pending appeal, the note records Judge Altman as saying this:
  20. "I have considered whether today's hearing should be postponed until the Court of Appeal has finally disposed of the appeal.
    It is common practice for the final hearing to take place in two parts. The first part involves the making of the formal Adoption Order; the second part, sometimes called the celebration hearing involves the Judge meeting the family and the child. In this case it is recognised that the second part of the hearing should not take place until after the Court of Appeal has disposed of the appeal.
    I was told by Mr S for the [adopters] and Miss M for the Local Authority, both of whom have been astute to find out what has happened in the Court of Appeal Mr S says that a transcript of the Judgement has been asked for. I do not know why it has not been obtained as transcripts of Judgements can be obtained quickly these days.
    Miss M has spoken to the Court of Appeal, who says that the Appellants had been ordered to file their bundle by 10th April 2012. In the light of that, I enlisted the Clerk sitting in Court today to contact the Court of Appeal direct.
    He told me that the father's Solicitors had been directed to file their bundle by 10th April 2012, but the Solicitors had been given two time extensions and the Court of Appeal has heard nothing from the Solicitors. Only when the bundle has been filed will the papers be considered by a Judge for directions. So I should properly take account of the proceedings in the Court of Appeal, not on the merits but on the timetable."
  21. In relation to the merits, the note records Judge Altman saying:
  22. "It will be apparent why I described in Court this morning how the adopters have gone through the mill. Whilst they have the joy of looking after C, living with them, settled and secure, interruptions in what they believed to be the security and finality of adoption must have taken their toll.
    Had this been a case where the Court of Appeal had been put in a position of being able to give directions fairly soon, it may have been desirable to await their adjudication, but in the light of the uncertainty, I think I should deal with the matter on its merits today.
    The merits point only one way.
    Considering the welfare checklist relating to adoption and in particular, the welfare of C throughout his childhood, I have no hesitation in saying that an Adoption Order should be made. I will make that Final Order now."
  23. So, in the upshot Judge Altman made an adoption order. It is dated 2 April 2012, though it was only on 10 May 2012 that the adopters' solicitor emailed the appellant's solicitors to tell them what had happened the first they knew about it. They responded by email the next day, 11 May 2012, asking the adopters' solicitor to "confirm the reasoning behind the judge's decision to make an adoption order when the court was aware that an appeal against Judge Redgrave's order was pending." In response, on 15 May 2012 they were sent copies of the adopters' position statement and Mr S's note of the hearing.
  24. I return to what was going on in the Court of Appeal.
  25. On 3 April 2012 the appellant's solicitors had again contacted the transcribers, only to be told that they had still not received the recording from the court. The same day they wrote to the CAO reporting this fact, saying that they had made a formal complaint to the court about the unacceptable delay in releasing the recording to the transcribers, and seeking a further extension until 27 April 2012. The same day, 3 April 2012, the transcribers sent an email chaser to the court, commenting that although they had spoken to the judge's clerk on Friday (30 March) they had heard nothing since. This seems at last to have spurred Gee Street into action; that afternoon, 3 April 2012, the court at Gee Street sent the CD recording of the judgment to the transcribers by DX. On 4 April 2012 the appellant's solicitors wrote to the CAO with this information, renewing their request for a further extension for lodging the skeleton and bundle until 27 April 2012. On 5 April 2012 the CAO emailed the solicitors with a further extension of time until 27 April 2012. On the same day, 5 April 2012, the draft transcript was sent by the transcribers to Judge Redgrave's clerk for the judge's approval. The judge's clerk was out of the office until 10 April 2012, so it was not until that day that the draft was forwarded to Judge Redgrave. Unfortunately, she was on leave that week. On her return from leave on 16 April 2012 she immediately corrected the transcript and returned it the same day. On 17 April 2012 the solicitors received the approved transcript from the transcribers. The process had taken five weeks, though allowance has to be made for the unavoidable delay in the final week caused by Judge Redgrave's absence. This does not reflect well on the system.
  26. On 18 April 2012 the solicitors sent a copy of the transcript to the LSC. On 19 April 2012 they were informed by the LSC that their decision to refuse public funding stood, that further representations could be made, but that the Independent Adjudicator would not be able to consider them by 27 April 2012. On 21 and again on 24 and 25 April 2012 the solicitors submitted further representations to the LSC, the latter being supported by counsel's advice. On 23 April 2012 supplemental grounds of appeal were settled by the same counsel. On 25 April 2012 the solicitors wrote to the CAO explaining developments and seeking a further extension of time, until 18 May 2012, for lodging the skeleton argument and bundle. On 27 April 2012 the CAO emailed the solicitors with an extension until 18 May 2012 "for you to update this office as to funding."
  27. On 9 May 2012 the LSC sent the appellant's solicitors confirmation that funding had again been refused. On 18 May 2012 the solicitors wrote to the CAO notifying it of this fact, saying that the appellant would be pursuing his appeal as a litigant in person, and seeking a further extension of time until 25 May 2012. The CAO replied by email on 23 May 2012 saying that if the solicitors were no longer acting for the appellant any request for an extension of time must come from him and that any such request must be filed within 7 days.
  28. On 29 May 2012 the bundle was lodged. This was followed by a further email from the CAO to the solicitors on 31 May 2012 pointing out that the skeleton argument was missing from the bundle and asking them to ensure that it was filed no later than 8 June 2012. It never was. On 1 June 2012 the solicitors notified the CAO by email that "as of 25th April 2012 we no longer act for the Appellant" and enclosing Notice of Acting in Person. That document shows that it was in fact on 25 May, and not 25 April 2012, that the solicitors ceased to act for the appellant.
  29. On 1 June 2012 the CAO wrote to the appellant, now in person, the standard form letter informing him that the application for permission to appeal would take place on 25 July 2012. It was listed before Black LJ. The appellant did not attend. The application was adjourned to the following week, coming before Thorpe LJ on 1 August 2012. Again, the appellant was neither present nor represented, but Thorpe LJ gave permission to appeal for reasons which he set out in a short judgment: [2012] EWCA Civ 1360.
  30. The appeal was listed before the full court (Thorpe and Rimer LJJ and Baron J) on 21 November 2012. The appellant appeared in person, assisted by his sister as his McKenzie friend. There was still no skeleton argument from him. The court had the assistance of a chronology and skeleton argument both dated 14 November 2012 prepared by Mr Alistair G Perkins, counsel for the local authority and the adopters. The court also had the assistance of a position statement / skeleton argument dated 21 November 2012 prepared by Ms Anne Spratling as advocate to the court. She had been instructed the previous day by CAFCASS Legal, whose assistance had been sought by the court. The court decided to adjourn the appeal until 17 December 2012 so that the Bar Pro Bono Unit could consider whether it would provide the appellant with legal representation. CAFCASS Legal was discharged. In the event it was not until 11 December 2012 that it was possible for the appellant to have a conference with his new solicitors and counsel.
  31. When the adjourned appeal came on before us on 17 December 2012 the appellant had the advantage of being represented by Ms Deirdre Fottrell of counsel, who had prepared an admirably succinct and focused skeleton argument dated 12 December 2012.
  32. There are two other matters I must refer to before turning to Ms Fottrell's submissions. The first, as Ms Fottrell confirmed to us having taken instructions from him, is that the appellant has never even seen C. All he has ever seen are photographs. That is a fact, not a criticism. The other is that, at the time of the hearing before Judge Redgrave, the appellant's immigration status, as we have seen, was precarious. He was an 'overstayer'. His status was still not precisely clear when the appeal came on for hearing. Based on the information she had been given, Ms Fottrell told us that the appellant had been granted indefinite leave to remain in or around May 2012. The facts, as we were subsequently informed, are that his solicitors had made an application on 17 October 2011 for discretionary leave to remain based on Article 8 and compassionate factors and that on 4 April 2012 he had been granted discretionary leave to remain until 4 April 2015. I make absolutely no criticism of either Ms Fottrell or those instructing her, who had very little time in which to prepare the case and appropriately focused on the most pressing matters, but I take the opportunity of reminding practitioners of what I said in Re M and N (Parallel Family and Immigration Proceedings) [2008] EWHC 2281, [2008] 2 FLR 2030.
  33. As will be appreciated, the only appeal before the court is that against the order made by Judge Redgrave on 7 February 2012. The appellant has never filed an appellant's notice nor sought permission to appeal against the order made by Judge Altman on 2 April 2012. Nonetheless, in her skeleton argument Ms Fottrell seeks permission to appeal against Judge Altman's order on the grounds set out in the skeleton argument.
  34. I deal first with the appeal which is before us.
  35. Before Judge Redgrave, the appellant had to clear two fences. First, he had to establish (as he did) the necessary change of circumstances referred to in section 47(7) of the 2002 Act; second, he then had to satisfy the court that, in the exercise of discretion, it would be right to grant permission: Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para [18]. In relation to the second, the question fell to be decided by the application of section 1 of the 2002 Act to the facts of the case, so the paramount consideration for the court was C's welfare throughout his life: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 1 WLR 2556, [2007] 2 FLR 1069, paras [27], [55].
  36. At this stage a "stringent approach" was required: Re W, para [28], approving the approach adopted by McFarlane J, as he then was, in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para [15]. In Re W Thorpe LJ expressed it in this way (para [20]):
  37. "I am in no doubt at all that 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 great regard 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."

    That is, of course, a reference to what Lord Collins said in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 AC 628, para [33].

  38. Ms Fottrell, for whose admirable submissions I am indebted, as is the appellant, distilled her submissions into seven propositions:
  39. i) That Judge Redgrave failed to have due regard to the factors listed in section 1(4), and in particular section 1(4)(c) of the 2002 Act ("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").

    ii) That she failed to have due regard to section 1(4)(f) ("the relationship which the child has with relatives, and with any other person in relation to whom the court or agency continues the relationship to be relevant ").

    iii) That she failed to have due regard to the real possibility that C could be placed with relatives and that, considering the known strengths of the appellant and his sister as carers, the merits of his application should have been considered at a full hearing.

    iv) That she was disproportionately influenced by the possibility of disruption to the placement, which was not the only consideration when assessing the welfare of the child, and was wrong to conclude and rely on the assertion that a further move would place C at risk of suffering further harm.

    v) That she was wrong to conclude that it was implausible that the appellant did not suspect that he was the father of C, having not heard evidence from him.

    vi) That she was wrong to conclude that his immigration status was in any way relevant to her analysis.

    vii) That, having concluded that she could not assess the ability of the appellant to care for C but that she could not conclude he had no prospect of succeeding (there was a recent assessment of him as a co-carer for M and he was actively caring for a child at the time), she was wrong to conclude that he should not be granted leave to oppose the adoption.

  40. Ms Fottrell identifies the central question for us as being whether Judge Redgrave's approach was too stringent. She submits that the judge's approach was to assume that C's welfare would be adversely affected by a purposeful delay and that too great weight was placed on the fact that C was in the adoptive placement at the time of the application. She supplements this with the additional submissions that Judge Redgrave erred in not considering whether the appellant's application had 'solidity' and in giving insufficient weight to the merits of the appellant's application to oppose, its prospect of success and the likely benefit to C of being placed with his biological family.
  41. Ms Fottrell also pointed out that, in distinction to both X and Y and Re W, the merits of the appellant's case had never been considered by any court in the course of either the care or the placement proceedings.
  42. Ms Fottrell relied upon the protection afforded the appellant by Article 8, both in relation to his "private life" and also in relation to his "intended" or "potential" "family life" as expounded in Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883, paras [60]-[62], Schneider v Germany (Application No 17080/07) (2011) 54 EHRR 407, paras [82]-[84], and, most recently, Kautzor v Germany (Application No 23338/09) [2012] 2 FLR 396, para [75].
  43. Mr Perkins on behalf of both the local authority and the adopters submitted that Judge Redgrave was invested with a discretion that she properly exercised, having regard to the section 1 criteria, in a way that sits comfortably with the current domestic and Strasbourg jurisprudence. Further, he said, even if, which he did not accept, she had included additional matters in her consideration (ie, the appellant's immigration situation) which she perhaps should not have, her overall assessment and decision was not so plainly wrong as to enable us to interfere.
  44. For the purposes of the appeal, Mr Perkins was willing to assume that the appellant in combination with his sister could provide for C's physical needs, and to a good standard. But, he submitted, sadly for them the combination of all the circumstances in this case falls well short of Thorpe LJ's "solidity" test. What he called "the unchallengeable obstacles" are a combination of:
  45. i) the fact that the appellant and his sister are strangers to C, now aged 4; not wishing to be unkind, the sad reality is that they have no relationship whatsoever with him;

    ii) the fact that for the first three years of his life C was in foster care, so effectively he has had no experience of natural parental care;

    iii) the fact that he has spent the last two years with his adoptive parents and has become settled and attached, no doubt secured by those around him in their expectation that this was to be his permanent home;

    iv) the fact that, as the judiciary has already noted positively on a number of occasions, his adoptive placement more than adequately meets his needs, particularly for a placement within a culturally appropriate home; and

    v) the risk that setting in train the process now being proposed by the appellant could seriously undermine C's stability and strike hard against his best interests.

  46. Despite everything that Ms Fottrell has so attractively argued on his behalf, and recognising the bitter heartache this must cause for a father who, it would seem, was cruelly deceived by the mother of his child, I was by the end of the argument on the point entirely satisfied that the appeal against Judge Redgrave's order had to be dismissed. Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?
  47. In my judgment, Judge Redgrave's decision as set out by her in a very clear and lucid judgment displays no error of law, no error of approach, whether viewed from a purely domestic perspective or, as one must, from the broader Strasbourg perspective. Nor can it be said that her exercise of discretion was flawed or that it was plainly wrong. In my judgment it was neither. Judge Redgrave addressed the relevant factors and gave them what she thought was the appropriate weight. That was a matter for her, and we cannot interfere unless she was plainly wrong, either in her evaluation of the weight to be attached to them, whether individually or collectively, or in her overall conclusion. She was not. Despite Ms Fottrell's submissions to the contrary, I do not accept that Judge Redgrave failed to have due regard to, or, as the case may be, was unduly influenced by, the various factors to which Ms Fottrell has drawn our attention.
  48. In this situation it is conventional to refer, as we were referred, to the classic authority of G v G (Minors: Custody Appeal) [1985] 1 WLR 647. Nowadays it is perhaps more helpful to refer to the later decision of the House of Lords in Piglowska v Piglowski [1999] 1 WLR 1360, 1372, where Lord Hoffmann, speaking for a unanimous House, set out the key passages from G v G and from the later decision of the House in Biogen Inc v Medeva Plc [1997] RPC 1. He then continued with this vitally important observation:
  49. "reasons for judgment will always be capable of having been better expressed reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2) [of the Matrimonial Causes Act 1973]. An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself."

    So it is not enough merely to demonstrate that judge has not referred to something.

  50. Judge Redgrave referred, appropriately, to Re P [2008] EWCA Civ 535, [2008] 2 FLR 625. It is worth remembering what this court said in Re P at para [119]:
  51. "it is elementary that, if Article 8 is not to be breached, any intervention under Part IV or Part V of the 1989 Act, and any placement or adoption order made without parental consent in accordance with section 52(1)(b) of the 2002 Act, must be proportionate to the legitimate aim of protecting the welfare and interests of the child."

    Indeed, and as I pointed out during the course of argument, the need for any such intervention to be both proportionate and necessary (in the Strasbourg sense of the word) had been emphasised by Hale LJ, as she then was, even before the Human Rights Act 1998 came into force in October 2000: see, for example, Re C and B (Care Order: Future Harm) [2001] 1 FLR 611, para [33], and Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, paras [27]-[28]. So this is a matter of which every family judge will be very well aware. There is nothing to show that Judge Redgrave did not understand very well both the nature and the ambit of the vitally important task upon which she was embarked.

  52. I add two things in relation to Ms Fottrell's understandable reliance upon the appellant's rights under Article 8. Both are illustrated by the decision of the Strasbourg court in YC v United Kingdom (Application No 4547/10) [2012] 2 FLR 332, to which we drew counsel's attention during the hearing. In para [135] the court said this:
  53. "The identification of the child's best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in s 1 of the 2002 Act broadly reflect the various elements inherent in assessing the necessity under Art 8 of a measure placing a child for adoption."

    In other words, a judge who properly applies section 1 of the 2002 Act, as Judge Redgrave did here, will thereby normally also be complying with the requirements of Article 8. The other point goes to the complaint that the appellant was denied a 'full merits' investigation at a full hearing. This must be evaluated in the light of what the Strasbourg court said in YC, in particular at paras [130], [134], [137]-[139], [146]-[150], explaining why there had been no breach of Article 8 where a county court judge refused a further assessment of the mother and instead made a placement order. In my judgment, Judge Redgrave acted perfectly properly in deciding as she did, and for the reasons she gave, and there is no basis for any complaint by the appellant of any breach of either his or his son's rights under Article 8.

  54. The dismissal of the appeal against Judge Redgrave's order renders academic the proposed appeal against Judge Altman's subsequent order. I cannot pass it by in silence, however, not least because of the very serious implications if the appeal from Judge Redgrave's order had in fact been allowed.
  55. It is quite clear that the appellant has locus status to appeal against the order made by Judge Altman even though he was not a party to the proceedings at the time it was made: Webster v Norfolk County Council and the Children (By Their Children's Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [141]. The real question is whether his proposed appeal would have been successful.
  56. The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside "only in highly exceptional and very particular circumstances": Webster para [149]. In that case, the adoption orders "were made in good faith on the evidence then available" (para [177]) and therefore stood, even though the natural parents had suffered a "serious injustice" (para [148]). Webster can be contrasted with Re K (Adoption and Wardship) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (page 227) "inept handling by the county court of the entire adoption process" and (page 228), failure to comply with the requirements of the Adoption Rules, "procedural irregularities go[ing] far beyond the cosmetic", "a fundamental injustice to [the child] since the wider considerations of her welfare were not considered" and "no proper hearing of the adoption application." Butler-Sloss LJ held (page 228) that:
  57. "there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside."
  58. Whether the appellant would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.
  59. In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman's decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.
  60. I cannot part from this case without expressing my very great concerns about what it reveals of our system. The history of the events since 7 February 2012 as I have set them out makes for depressing and profoundly worrying reading. This is not, I stress, necessarily a criticism of those involved, most of whom did what was required of them; it is a criticism of a system whose inadequacies and potential for catastrophe have here been all too starkly exposed. No humanly devised system can ever be foolproof, but we must do everything to ensure as best we can that future catastrophes are prevented.
  61. What this case suggests is that in every case where an application to the Court of Appeal is made for permission to appeal against the making of a placement order (or of any order consequent upon the making of a placement order) the following steps must be taken (and when I say must I mean must):
  62. i) The appellant's notice must be filed as soon as possible.

    ii) Those advising the appellant must give careful thought to including in the appellant's notice any appropriate application for a stay or other interim relief.

    iii) If a transcript of the judgment being appealed against is not then available:

    a) the appellant's notice must be accompanied by whatever note of the judgment (even if unapproved) is available; and
    b) the transcript must be ordered immediately.

    iv) When an application for a transcript is received, the court from which the appeal is being brought must deal with the application immediately.

    v) Respondents who are parties to any application consequential upon the placement order (eg, an application for an adoption order) must immediately inform both the appellant and the Court of Appeal of:

    a) the fact of the making of the application; and
    b) the date(s) of any hearing of the application.
  63. I invite the relevant supervising Lords Justices and the Master of the Rolls to consider a change to the present practice in the Court of Appeal. That practice, properly followed in the present case by those handling the papers in the CAO, is that an application for permission to appeal is normally not put before a Lord Justice until the bundle is complete, in particular until the transcript is available. As a general practice that is, no doubt, entirely appropriate, but there must be cases where the delay that it necessarily imposes cannot be afforded. In the context of family appeals, the present class of case is one; another (not least because of the very strict time limits on such cases which Parliament is shortly to impose) is where the proposed appeal is against an interim case management decision in a care case. In such cases there is a powerful argument for saying that, irrespective of the contents of whatever bundle has been lodged with the CAO, the papers should be put before a Lord Justice as soon as the appellant's notice is received so that immediate directions can be given if appropriate.
  64. Lady Justice Arden :

  65. I agree.
  66. Lord Justice Aikens :

  67. I agree.

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