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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> A (Children : Adoption : long Term Foster Care), Re [2015] EWCA Civ 1021 (13 October 2015) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2015/1021.html Cite as: [2015] EWCA Civ 1021 |
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2015] EWCA Civ 1021 | ||
2015/1656 |
ON APPEAL FROM THE FAMILY COURT, MIDDLESBROUGH
HHJ MATTHEWS QC
2015/1656
Strand, London, WC2A 2LL |
||
2015 |
B e f o r e :
LORD JUSTICE RICHARDS
and
LORD JUSTICE McCOMBE
____________________
| In the Matter of A (Children)(Adoption/Long Term Foster Care) H Borough Council |
Appellant |
|
| - and - |
||
| CDP MA RD – (9) T, F, D, P, M and H |
Respondents |
____________________
Janet Bazley QC, Catherine Fagan and Jackie McKie (instructed by Donnelly McArdle Adamson Solicitors and TMJ Solicitors) for the First and Second Respondents
Catherine Jenkins (instructed by Tilly, Bailey and Irvine LLP) for the Third Respondent
Kester Armstrong (instructed by Appleby, Hope and Matthews) for the Fourth to Ninth Respondents (by their Guardian)
Hearing date: 16 September
2015
____________________
Crown Copyright ©
Lord Justice McCombe:
(A) Introduction
2015
we announced our decision that this appeal would be dismissed and we ordered accordingly. We said that the reasons for that decision would be given in writing. This judgment sets out my reasons for the decision taken.
2015,
made in care proceedings, whereby the court refused the LA's applications for final care orders (based upon care plans for adoption and placement orders) in respect of three children P (a girl), M (a girl) and H (a boy) (aged respectively 6, 5 and 3 years old). The orders were made on 1 May
2015,
following a hearing on 22, 23 and 30 April
2015.
The judge refused permission to appeal to this court. Permission to appeal was granted by King LJ on 2 July
2015.
(B) Background Facts
2015.
A further care plan for the three younger children (of 1 December 2014) proposed adoption with thrice yearly contact with the siblings and indirect contact with the parents. By a further report of 5 December 2014, the Guardian maintained her recommendation for long term foster care. On 23 January
2015
the LA issued its applications for placement orders in respect of the three younger children and on 2 February
2015
the Guardian revised her recommendation from one of long-term foster care to adoption for P, M and H, but with a "twin track" approach directed to finding, if necessary, a long term foster placement as a fall back.
2015
also proved to be ineffective and, in due course, a new date was set (for an estimated two days) beginning on 22 April
2015.
It was on that date that the case came on for hearing before Judge Matthews QC. It was accepted on behalf of the parents at that hearing that the "threshold" criteria under the Children Act 1989 had been satisfied, essentially by virtue of the history of intermittent neglect of all six children by the parents, as already summarised earlier in this judgment. The parents did not contest the making of care orders in respect of the three elder children or the arrangements for their care. However, they continued to argue for the return to them of the three younger children, alternatively for those children to be cared for by the PGF.
2015,
the second day of the hearing and after the LA social worker gave evidence, the LA sought care orders in respect of the elder three children on the basis of long term foster placements, with RD for T and D and with another foster parent for F. For the three younger children, the LA sought care and placement orders with care plans providing for a 12 month exclusive search for adoptive placement, to include contact with the elder siblings three times per year but with placement being given priority over contact.
2015
the LA informed the parties and the court that it would further amend the plans to limit the exclusive search for an adoptive placement to 6 months, with a search for foster placement thereafter. It was not clear whether it was intended that this second period of search for foster placement was to be for that type of placement alone or coupled with a continuing search for adopters.
2015
refusing the applications for placement orders in respect of P, M and H. The case was listed for further hearing on 15 May, with directions for revised care plans to be submitted by 13 May. The interim care orders were directed to continue in the meantime. On 13 May further amended care plans for the three younger children were submitted, again directed primarily to the adoption course rejected by the judge in her judgment, but identifying work and support for the children towards the adoption process, the absence of which had been noted in the judgment. The LA proposed a search for six months, limited to adopters committed to sibling contact, on a "twin track" basis with long term foster care, with a reversion after that period to long term foster care only. It was acknowledged that if the search identified both foster placement and adoptive placement the LA would consider carefully which alternative best met the children's needs.
2015,
the LA indicated a desire to have time to consider an appeal against the judge's decision of 1 May
2015.
As we were told by counsel before us, however, no submissions were made by the parties directed to the new care plans that had been lodged. A further hearing was fixed for 21 May
2015.
As already indicated, at that hearing, the judge refused permission to appeal, having heard oral submissions. The Appellant's Notice was then issued on 22 May, with permission being granted by King LJ on 2 July. The Appellant's Notice directed a challenge to the judge's judgment and order of 1 May, although Mr Verdan QC for the LA, both in written and oral argument, sought to challenge the judge's failure to act upon the revised care plans of 13 May. This was opposed by Ms Bazley QC for the parents. However, for reasons that will appear, it did not seem to me that the somewhat altered focus in these new plans affected the outcome of the appeal which would be the same whichever of the alternative plans were advanced by the LA.
2015)
and by the LA (14 September
2015)
to adduce fresh evidence as to events arising out of the breakdown of the foster placement of P, M and H in July
2015.
I will return to what the fresh evidence revealed, and the consequences of it, after setting out next what the judge decided in her judgment.
(C) Judge Matthews' judgment of 1 May
2015
"57. In terms of making findings of fact in this case I apply the civil standard of proof being the balance of probabilities. In terms of assessing the applications before the court, no one addressed the law, but I anticipate that there was no dispute as to the principles which I have to apply. It is for the local authority to prove on a balance of probability the facts upon which they seek to rely. It is for the local authority since it is seeking to have the three youngest children adopted to establish that nothing else will do.
- Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33;
- Re BS (Children) (Adoption Order: Leave to Oppose) [2013]
EWCA
Civ 1146;
- Re R (A Child) [2014]
EWCA
Civ 1625
As Baroness Hale of Richmond has said in Re B above:
'The test for severing the relationship between parent and child is very strict. Only in exceptional cases and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do.'
[This "quotation" is reproduced as in Judge Matthews' judgment].
58. What Baroness Hale was referring to, was severing the relationship between parent and child, but of course that is also relevant to severing the relationship between a child and its siblings and a child and the balance of its family. That is what she was referring to, not simply the parents. Family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and where appropriate to rebuild the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. But of course the corollary of that is that, where the maintenance of family would harm the child's health and development, a parent is not entitled under Article 8 to insist that such ties be maintained.
- Y v The UK [2012] 55 EHRR 33.
59. Therefore, in considering the local authorities [sic] application for a care order, I must have regard to the welfare checklist factors set out in Section 1(3) of the Children Act 1989. Since the plan is for adoption, also the welfare checklist in Section 1(4) of the Adoption of Children Act 2002. [Re: C (A Child) Placement for Adoption Judicial Approach, Re: R(A Child) 2014].
60. I must treat the welfare of these three children throughout their lives as my paramount consideration, in accordance with Section 1(2) of the 2002 Act, in considering the local authority's applications for placement orders. In deciding whether or not to dispense with the parents' consent I must apply Section 52 1(B) of the 2002 Act as explained in Re: P Placement Orders Parental Consent 2008. I must take into account all of the evidence, also of course the interest of the elder three children, and I must consider each piece of the evidence in the context of all of the other evidence surveying a wide canvas."
2015,
as follows:
"I am of the view that P, M and H should be provided with the opportunity of adoption as the only suitable option at this time. This will enable the children the best possible chance of stability throughout their childhood and will protect them from the continual uncertainty and unstable lifestyles of T, F and D. I am of the view that the local authority need to provide the court with further information in relation to what work they will undertake with the children to prepare them for a plan of adoption. P and M have a strong bond and attachment to their parents and therefore it is not known at this stage how they will respond in transferring their attachment to new parents.
...
I am also of the view that a twin track plan is pursued to enable potential permanent foster carers to be identified in the event that adoption is not achievable.
And she says at the conclusion of that report;
The local authority needs to set out their proposals for preparing the children for adoption, timescales in which they will seek prospective adopters and their plan for twin tracking in the event that appropriate adopters are not found."
"78. This is a most unusual care plan in my experience. Once a placement is identified i.e the adoptive placement the care plan proposes that the contact will reduce to fortnightly and again then to monthly until placed. I am rather puzzled by that, I do not know how long a gap the local authority are anticipating between identifying adopters for these children and then placing them, but in my experience the gap is usually very short indeed.
79. It would take a very brutal reduction from weekly contact to monthly contact, then to three times per annum. I do not think that has been very well thought through. I appreciate the LA has produced statements in relation to family finding but I am not clear in my own mind what family the local authority are going to be able to identify who will be prepared to take three siblings together who are having weekly sibling contact. That is obviously a clear signpost that the relationship between the three youngest and the three eldest is considered to be strong and meaningful."
A little later the judge continued:
"80. ... I am not satisfied that P and M will necessary settle easily into an adoptive placement, just because they successfully moved into a foster placement when they were having ongoing regular weekly contact with their siblings and their parents does not mean to say that they will settle easily into an adoptive placement where they do not see their parents at all and they see their siblings, potentially, once every four months or so.
81. I am not clear what work the local authority are going to do to prepare them. The usual plan of young children being offered an opportunity to be placed for adoption is not necessarily the right plan for these children. The panacea of adoption does not suit all families and all children. Every case turns on its facts.
82. I am not satisfied that nothing other than adoption is necessary here. In my judgment it is too draconian for these children. I do not know how P and M are going to react to being told that the plan for them is a forever family, never seeing their parents potentially, and only seeing their siblings three times per annum. They do not know about this at present. I cannot be confident, nor can the local authority that adopters, whatever they say when they want to put themselves forward for these three lovely children, will actually maintain that post adoption."
"84. The local authority's initial proposals were that the children might wait another 12 months before a family was found to them, and that was the minimum in my expectation and experience. To try for six months is admirable but not realistic in my judgment. I deal with adoptions and I rarely see children placed with adopters within six months, even babies. Local authorities make bold promises when they want the court to grant placement orders.
85. Sometimes the court has no choice than to place children for adoption because there are no other options. If these children did not have three elder siblings and such strong family bonds the court I may have taken a different view but I cannot be confident necessarily that these 2 elder children will settle. I am sure H will because he is young, and I have the negative aspects of long term foster care fully to the forefront of my mind in making this decision.
86. Will inter sibling contact happen? I do not know. Will the children settle? I do not know that either. I have to say that a breakdown of an adoptive placement for any one of those three children, but most particularly for the elder two girls would be disastrous, absolutely disastrous, and I do not know what view the local authority would take if that happened. I have seen children in multiple sibling adoptions where it has gone wrong for one of them, and one has remained in the placement and another has been effectively rejected and had to be placed in long term foster care. That is so damaging as to not to bear contemplation for either of the two girls here."
(D) The grounds of appeal
(E) The fresh evidence, events post-judgment and the parties' current positions
(F) The arguments and my conclusions
"198. ... it is quite clear that the test for severing the relationship between parent and child is very strict; only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B [2001] 1 FLR 611, at para 34,
'intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.'"
Mr Verdan submitted, with reference to this one short paragraph, that the strictness of the test for severing the relationship of parent with child was not being applied to a sibling relationship as, he submitted, the judge improperly thought. Secondly, Mr Verdan submitted that the judge, while referring to the welfare checklist, did not say how she applied it, having due regard to the need for permanence in a child's life. Thirdly, he argued that the judge did not mention the children's right to a stable, secure and permanent family life.
EWCA
Civ 913 at [8] and [96], in the latter of which she set out some of the material differences between arrangements for foster care and adoption respectively. In my judgment, it is important to note the context of the remarks and what was said at [95] of the same judgment. The relevant paragraphs are as follows:
"95 ... The Judge thought she may have been given a rosy tinted view of adoption and not told that long term fostering could provide the same security. My difficulty with that is that I do not think that fostering and adoption can in fact, be equated in terms of what they offer by way of security. I do not intend to embark on a comprehensive comparison of the two arrangements, merely to highlight some of the material differences. What I say should not be taken as a substitute for professional advice to the court from social services and/or the guardian in any case in which this is a significant issue.
96. With that caveat, I make the following observations:
i) Adoption makes the child a permanent part of the adoptive family to which he or she fully belongs. To the child, it is likely therefore to "feel" different from fostering. Adoptions do, of course, fail but the commitment of the adoptive family is of a different nature to that of a local authority foster carer whose circumstances may change, however devoted he or she is, and who is free to determine the caring arrangement.
ii) Whereas the parents may apply for the discharge of a care order with a view to getting the child back to live with them, once an adoption order is made, it is made for all time.
iii) Contact in the adoption context is also a different matter from contact in the context of a fostering arrangement. Where a child is in the care of a local authority, the starting point is that the authority is obliged to allow the child reasonable contact with his parents (section 34(1) Children Act 1989). The contact position can, of course, be regulated by alternative orders under section 34 but the situation still contrasts markedly with that of an adoptive child. There are open adoptions, where the child sees his or her natural parents, but I think it would be fair to say that such arrangements tend not to be seen where the adoptive parents are not in full agreement. Once the adoption order has been made, the natural parents normally need leave before they can apply for contact.
iv) Routine life is different for the adopted child in that once he or she is adopted, the local authority have no further role in his or her life (no local authority medicals, no local authority reviews, no need to consult the social worker over school trips abroad, for example)."
As my Lord, Longmore LJ (who was a member of the court in that case) observed in argument before us, the parental influence in V had been strongly negative. Moreover, in V no issue of sibling relationships arose.
"I am sure that long term foster carers [as well as adoptive parents] would also be willing and motivated to meet all of their [the children's] physical and emotional needs… ".
He submitted that this missed the point in that such willingness could not meet the "deep, psychological and emotional need for permanence".
2015.
Final submissions had been made on 30 April
2015
and there was no invitation made to the judge to consider further care plans, produced post-judgment, upon which Mr Verdan sought to rely in his submissions. The further hearing on 21 May
2015
was, we were told, confined to submissions upon the application by the LA for permission to appeal. For my part, I agree that it is difficult for the LA to challenge the judge's reasoned judgment of 1 May
2015 by reference to material produced later, in particular when no submissions had been directed in the light of that material. It is clear that by her order of 1 May the judge had envisaged that the LA would produce revised plans reflecting her decision that the children should go into long term foster care. As she recognised in one of her two orders of 21 May 2105 (1/30-31 in the bundles before us), the LA had not done this and merely sought permission to appeal.
"33. In a number of its judgments the European Court of Human Rights, "the ECtHR", has spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted. Only a year ago, in YC v United Kingdom (2012) 55 EHRR 967, it said:
'134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under article 8 to insist that such ties be maintained.'
Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them."
Ms Bazley directed our attention to the European Court's statement in the YC case that it is in the child's best interest that ties with his family (quite generally) are maintained.
"The court or adoption agency must have regard to the following matters (among others)-
"(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including –(i) the likelihood of any such relationship continuing and the value to the child of doing so (ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs, (iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."
"42. Lord Hoffmann's remarks apply all the more strongly to an appeal against a decision about the future of a child. In the Biogen case the issue was whether the subject of a claim to a patent was obvious and so did not amount to a patentable invention. Resolution of the issue required no regard to the future. The Piglowska case concerned financial remedies following divorce and the issue related to the weight which the district judge had given to the respective needs of the parties for accommodation. In his assessment of such needs there was no doubt an element of regard to the future. But it would have been nothing in comparison with the need for a judge in a child case to look to the future. The function of the family judge in a child case transcends the need to decide issues of fact; and so his (or her) advantage over the appellate court transcends the conventional advantage of the fact-finder who has seen and heard the witness of fact. In a child case the judge develops a face-to-face, bench-to-witness-box, acquaintanceship with each of the candidates for the care of the child. Throughout their evidence his function is to ask himself not just "is this true?" or "is this sincere?" but "what does this evidence tell me about any future parenting of the child by this witness?" and, in a public law case, when always hoping to be able to answer his question negatively, to ask 'are the local authority's concerns about the future parenting of the child by this witness justified?' The function demands a high degree of wisdom on the part of the family judge; focussed training; and the allowance to him by the justice system of time to reflect and to choose the optimum expression of the reasons for his decision. But the corollary is the difficultly of mounting a successful appeal against a judge's decision about the future arrangements for a child. "
Lord Wilson also cited Lord Nicholls of Birkenhead in B (A Minor) (Adoption: Natural Parent) [2001] UKHL 70 at [19] as follows:
"19...Cases relating to the welfare of children tend to be towards the edge of the spectrum where an appellate court is particularly reluctant to interfere with the judge's decision."
I agree.
I agree also.