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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (A Child)  EWCA Civ 431 (25 April 2013)
Cite as:  WLR(D) 151,  2 FLR 1393,  1 WLR 3720,  Fam Law 785,  WLR 3720,  EWCA Civ 431,  1 FCR 50
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
Her Honour Judge Redgrave
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE AIKENS
|In the Matter of C (A Child)|
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 :
"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."
"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."
"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."
"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."
"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."
"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."
"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."
"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  UKSC 13,  1 AC 628, para .
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.
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.
"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.
"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)  1 FLR 611, para , and Re O (Supervision Order)  EWCA Civ 16,  1 FLR 923, paras -. 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.
"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 , , -, -, 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.
"there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside."
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; andb) 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; andb) the date(s) of any hearing of the application.
Lady Justice Arden :
Lord Justice Aikens :