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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> W (A Child : No 4) [2017] EWHC 1760 (Fam) (10 July 2017) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2017/1760.html Cite as: [2017] EWHC 1760 (Fam) |
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Neutral Citation Number: [2017]
EWHC
1760
(
Fam)
Case numbers omitted
IN THE HIGH COURT OF JUSTICE
FAMILY
DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 10 July 2017
Published: 12 July 2017
Before :
SIR JAMES MUNBY
PRESIDENT OF THE FAMILY
DIVISION
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In the matter of W (A Child) (No 4)
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- - - - - - - - - - - - - - - - - - - - -
Ms Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells) for W’s father
Mr Frank Feehan QC and Ms Madeleine Reardon (instructed by Osbornes) for W’s adoptive parents
Mr Andrew Bagchi QC and Mr Martin Downs (instructed by Brighton and Hove City Council Legal Services) for the local authority (Brighton and Hove City Council)
Hearing date: 6 July 2017
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Judgment Approved
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.
Sir James Munby, President
of the Family
Division :
1.
I circulated my judgment in this matter on 6 March 2017
and published it
on 12 April
2017:
Re W (A Child) [
2017]
EWHC
829 (
Fam).
href="#_ftn1"
name="_ftnref1" title="">[1]
The same day, 12 April
2017,
I made an adoption order. It was sealed on 18
April
2017.
“There remain, therefore, two issues for me to determine:
i) Should I grant Mr and Mrs A’s application to adopt W, their application including an application pursuant to sections 47(2)(c) and 52(1)(b) of the Adoption and Children Act 2002 to dispense with the consent of her father and mother, or should W be returned to the care of her father?
ii) If the former, should I make any order in relation to post-adoption contact?”
“This is an issue about which I have thought long and carefully, but in relation to which, at the end of the day, I have no hesitation in coming to clear conclusions. Mr and Mrs A’s commitment to W, and to her well-being, throughout her life, is absolute. Their journey through litigation which has subjected them to appalling strain (just as it has the father and the mother) has been reflected in a gradual development and positive movement in relation both to their understanding of the father and of their recognition of the need for and willingness to facilitate contact, both indirect and direct. I accept Mr Diver’s assessment, which agrees with my own, of Mr and Mrs A being willing now, whatever may have been their stance in the past, to work towards direct contact, and moreover, direct contact sooner rather than later…”
5. My discussion was lengthy (paras 224-253). I said (para 233) that:
“The starting point has to be W’s current reality. As far as
she is concerned, Mr and Mrs A are her daddy and mummy. They are her parents,
emotionally, psychologically and socially. They and their son are, and, so far
as she can remember, always have been, her family.
It may be that she has the
implicit memory referred to by Dr Willemsen, but she has no actual memory of
her birth
family
or of any other
family.
She may be
familiar
with the words “tummy
mummy”, but she has no real understanding of what they mean or of their
significance. Given her age and stage of development there is little that could
be done to prepare her for a move to her father’s care, nor would it be
possible to explain to her, in a way which would have any real meaning for her,
what is happening to her, whether before, during or after the move.”
“249 I am, at the end of the day, driven to the
conclusion, which in the event I arrive at unhesitatingly, that W must, for her
own good, for her own happiness and for her welfare, now, in the years to come,
into and through adulthood, indeed for the whole of what I appreciate may be a
very long life – she may well live into the 22nd century – remain
with what for her is her family,
that is, with Mr and Mrs A and their son …
250 Drawing the statutory threads together, the sad
reality is that W does not now have, did not at the time of the hearing before
me have, any meaningful relationship with her birth family;
the most important,
indeed from her perspective the dominating, relationship for W is and has for
some time been with Mr and Mrs A and their son. The value to W of that relationship
continuing is enormous. And while I recognise – how could I not? – the strength
of the father’s wishes and feelings, and his absolute commitment to W and
unconditional willingness to provide for her every need, one has to question
his ability to do so; not because of any failings or limitations on his part,
because for all practical purposes there are none, but because what would be
demanded of him would probably be almost too much for any parent in his
situation.
251 … the stark reality here, in my evaluation of what the future in all likelihood holds, is that the future for W if she returns to her father is not one of merely short-term or transient problems; far from it. The risks of moving W from Mr and Mrs A are simply too great, and potentially so unmanageable, as to demand that they not be run.
252 Given that analysis, given my conclusion that W’s welfare demands that she remains with Mr and Mrs A, I am also driven to the conclusions (a) that W’s welfare requires that she be adopted – for her long-term welfare cannot otherwise be secured – and, a separate matter, (b) that her welfare “requires” (in the sense explained in the authorities) that her parents’ consent to her adoption be dispensed with. Adoption is demanded by the overriding necessity of W’s interests and welfare. Nothing else will do.”
7. I then addressed the issue of contact (para 253):
“There was a clear consensus among all the experts that, if W
is to remain with Mr and Mrs A, it is in her best interests that there should
be increased contact leading to direct contact with her birth family
as soon as
is practical. There was general agreement that W’s long-term psychological
wellbeing – her ability to understand her status as an adopted person and to
put her particular ‘narrative’ in context – would be best safeguarded if
contact with her birth
family
took place sooner rather than later. I agree with
that. I also agree that there should be no order for contact, something which
no expert recommended. If Mr and Mrs A are to be W’s adoptive parents, and this
is the hypothesis on which the question arises, it must be for them to decide
when, how and in what circumstances contact should begin and develop. And,
quite apart from that, it is quite impossible at this point to spell out any of
these matters with the kind of precision which would be required in an order.
All that said, I agree with Dr Blincow’s view, expressed in answer to questions
from Mr Bennett, that Mr and Mrs A need to “commit themselves” to making such
contact work and that “it is very, very important … that [they] adopt that
course of action wholeheartedly.””
8.
I should add that, during the proceedings, Mr and Mrs A had made two
joint statements relevant to what is now in issue, one dated 16 June 2016 and
the other dated 23 August 2016. In the first, under the heading “Our family
as
a British based
family,”
they said this:
“[The father] has expressed fears that, as a family
with
American and Italian heritages and extended
families
in both those countries,
we may move permanently from England to either Italy or the USA once an
adoption order is made in our favour. It is impossible for any
family
to know
exactly what the future will hold but as a
family
we have put our roots down in
this country and our son has always been educated here and lived here since he
was one year old. Mrs A is about to submit an application for British
citizenship and her “Life in the UK” test is scheduled for [date]. Apart from
this being an acknowledgement of our settled residence here, it will mean that
Mrs A has the same nationality and connection with this country as W.”
In the second, they said this:
“Our position in relation to our future living arrangements
is as follows. It is correct that we have ties to other countries (indeed this
was, we believe, one of the main reasons for being matched with W in that her
birth family
had asked the local authority to look for adopters who could
reflect her part-Italian heritage). However we have built our lives together in
the UK and established careers and friendships which now go back many years. We
keep in frequent contact with our
family
members abroad and they visit us, and
we them, on a regular basis, but the UK is our home. Our
family
is rooted and
settled in our local area.
… Mr Hatter suggested during the experts’ meeting (although not in either of his reports) that he was concerned by our failure to offer a ‘guarantee’ that we would not move abroad during W’s minority. We have never been asked to offer this, by Mr Hatter or by anyone else, so it is not right that we have refused or failed to do so. It is our view, however, that such a guarantee would be meaningless. We have no plans or intentions to move abroad and something significant and unanticipated would have to occur before we would contemplate doing so; in those sorts of circumstances, if there were some real imperative compelling us to move, it is hard to see what weight we could give to a guarantee offered before the unforeseen event took place.”
“Q … needing to move abroad was something you envisage might happen in the future?
A I think I said it was a possibility, so that is
why we did not have a special guardianship order, we can move freely as a
family
without having to ask permission.
Q That must remain a possibility?
A No plans.
…
Q … you also said that you may have to move a
family
to the States?
A I did not say we would, I said it is a
possibility, because we are both foreigners you never know if circumstances
arise, my husband is Italian but it was also an issue if some family
member was
sick and we might have to spend extended time, we wanted to be able, that is a
good thing for us to be able to have that flexibility.”
10.
The father’s application to the Court of Appeal for permission to appeal
against my order was refused by McFarlane LJ on 26 May 2017
– this was the
Friday before the Bank Holiday weekend. So far as concerned the litigation, that
marked the end of the road for him. I was notified of the Court of Appeal’s
order that afternoon.
11.
Later the same afternoon, at 16.01, I received an email from Ms Bazley, copied
to other counsel, forwarding an email that had been sent by the local
authority, at 15.28, enclosing a MASH referral received by the local authority
earlier in the day. The MASH referral, dated 15 May 2017,
referred to what had
happened in clinic on 12 May
2017
when W’s hearing had been tested:
“W was seen in … on 12th May with prospective adoptive parents … They informed a colleague that they plan to move to the US but that we should not mention this in any letters. They were advised that the hearing aid that we planned to fit was government property and would have to be returned on leaving the UK.”
As Ms Bazley points out, the
context of what is said to have happened on 12 May 2017
was that an order I had
made on 10 May
2017
recorded Mr and Mrs A’s agreement to:
“provide to the parents and to the local authority a copy of any letter(s) received from any health professional in relation to W’s hearing problems and the treatment to be undertaken.”
In her email, Ms Bazley said this:
“… If this is correct, this is wholly contrary to the assurances given to the court that Mr and Mrs A would remain based in England … and committed to direct contact … If in fact, Mr and Mrs A were intending to leave the jurisdiction permanently and concealed this from the court, we would argue that this goes to the heart of your decision … We ask that you grant a short further stay of your adoption order and permit the matter to be restored urgently for further directions …”
12.
When I received this email I was on a train returning home for the
weekend, having been sitting at Chester. I replied to Ms Bazley (16.15)
inquiring whether the adoption order had been sealed. The answers which I got
from Ms Bazley and others were not absolutely clear on the point, so I
contacted the court office by email seeking clarification. Eventually, after
the court files had been located, I was emailed (17.23) a copy of the adoption
order showing (rather faintly) that it had been sealed on 18 April 2017;
the
date was confirmed in a further email (17.36) from the court office. Having
received that information, and by now on the platform at Reading waiting for my
connection, I emailed Ms Bazley and the others (17.42):
“I have just received confirmation from the court office that the adoption order was sealed on 18 April.
I am therefore functus officio and can do nothing absent an application to set aside the AO.”
Ms Bazley’s response (17.45) was that:
“We will take instructions in light of any information to come from Mr and Mrs A on Tuesday.”
13.
There was then correspondence between the parties. Mr and Mrs A’s
solicitors wrote to all the parties on 31 May 2017.
The father’s solicitors
responded with an email on 1 June
2017
seeking disclosure of eight matters. Mr
and Mrs A’s solicitors responded by letter dated 7 June
2017
with certain enclosures.
The local authority wrote on 12 June
2017
with details of a conversation on 9
June
2017
between Mrs A and the social worker, Ms Reains.
14. This material revealed the following key information upon which Ms Bazley particularly focused:
i) In November 2016, during the course of a regular review with his employer, which has offices in the USA, the company’s HR department raised with Mr A the possibility of a transfer to the USA.
ii)
In February 2017,
Mr A was offered and accepted a US-based role.
iii)
On 1 May 2017,
Mr A started his new job, although, as it was put in the
letter from his solicitors dated 31 May
2017,
“he is continuing with aspects of
his UK based job in parallel with the new role. At present the
family
remains based
in the UK and Mr A is commuting between the two jurisdictions.”
iv)
As reported by Ms Reains, Mrs A’s stated position on 9 June 2017
was
that “… they remained dedicated to contact … they had made no plans as yet to
undertake the move and have not made any plans for W or the A’s son to start
school in the US … if [they] were to move to the US at some time in the autumn,
it would be most practical for them to return to the UK in the Easter period
next year …”
15.
On 21 June 2017
the father lodged two applications with the court: one,
an application under the inherent jurisdiction seeking the setting aside of the
adoption order and an order to prevent the removal of W from the jurisdiction;
the other an application seeking a post-adoption contact order under section 51A
of the Adoption and Children Act 2002. The applications were put before me by
the court office for directions. The same day, 21 June
2017,
I made the
following directions:
“Issue both applications immediately
List both applications before PFD on Friday 23 June 2017
at
10.30 for directions and (if appropriate) urgent interim relief (elh 1 hour).”
The applications were formally
issued the following day, 22 June 2017.
16.
In accordance with my directions, the matter came before me on 23 June
2017.
The father was represented by Mr Chris Barnes, Mr and Mrs A by Mr Frank
Feehan QC, and the local authority by Mr Andrew Bagchi QC. I also had a
position statement dated 23 June 2107 on behalf of X prepared by Ms Deirdre
Fottrell QC. The mother was present in person.
17.
Mr Feehan submitted that I should summarily dismiss both applications
then and there. I declined to do so. But I also declined to make W a ward of
court as Mr Barnes had sought. I confined myself to making an order that the
father was, by 30 June 2017,
to file and serve (i) a fully pleaded schedule of
allegations relied upon, and (ii) a skeleton argument in support of his
applications setting out the legal and factual basis for those applications. I
directed that the proceedings were to be listed before me “for case management
or summary determination of the applications” on 6 July
2017.
The father’s
schedule and skeleton argument were in fact served on 3 July
2017.
18.
In accordance with those directions, the matter came before me on 6 July
2017.
The hearing, listed to accommodate the fact that I was sitting earlier in
the day in the Court of Appeal, started at 4.30 and lasted for almost three
hours. The father was represented by Ms Bazley and Mr Barnes, Mr and Mrs A by Mr
Feehan and Ms Madeleine Reardon, and the local authority by Mr Bagchi and Mr
Martin Downs. At the end of the hearing I indicated that I needed time to think
overnight about the various submissions I had heard and that I would notify the
parties of my decision the following day, with reasons to follow. On 7 July
2017
I sent the parties the following email:
“I have decided to DISMISS both the application under the inherent jurisdiction seeking the setting aside of the adoption order and the application seeking a post-adoption contact order under section [51A] of the Adoption and Children Act 2002.
My reasons will follow on Monday.
Can you please agree, and email me, a form of order to give effect to my decision. The order will be dated 10 July.”
I now (10 July 2017)
give my
reasons.
19.
There was no dispute between the parties as to the law. All recognised
the very high bar against any successful challenge to an adoption order which
has been regularly made. All were content to proceed on the basis of the
summaries in In re C (A Child) (Adoption: Placement Order) Practice Note [2013] EWCA Civ 431, [2013] 1 WLR 3720, [2013] 2 FLR 1393, para 44, and In re O (A
Child) (Human Fertilisation and Embryology: Adoption revocation) [2016]
EWHC
2273 (
Fam),
[2016] 4 WLR 148, paras 26-28. I do not need to set these
passages out, because Ms Bazley’s sheet anchor was the judgment of Sir Thomas
Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995]
Fam
239, page 252:
“An adoption order is not immune from any challenge … The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud (emphasis added).”
20.
Both the father’s ‘Schedule of Allegations’ dated 30 June 2017
and Ms
Bazley’s skeleton argument dated 2 July
2017
are quite explicit: Mr and Mrs A’s
non-disclosure was “deliberate”, done with “the intention of enhancing the
prospect of the court granting the adoption order they sought and refusing to
make a contact order, which they opposed”, “dishonest” and “fraudulent.” The
‘Schedule’ contains two core allegations:
i)
One was that Mr and Mrs A had “formed a settled intention” prior to
circulation of the judgment on 6 March 2017
“to remove W from the jurisdiction
permanently”.
ii)
The other was that Mr and Mrs A “knowingly withheld” their plans from
the court and the parties prior to 6 March 2017
“to ensure that their plan to
relocate would not prejudice the position they had advanced.”
21. Ms Bazley’s case focuses on two matters:
i)
The failure to disclose in February 2017
(at a time before I had
handed down my judgment) Mr A’s acceptance of the job offer in the USA.
ii) What was said to the audiologist on 12 May 2107.
22.
These are exceedingly serious allegations. It is only fair that I set
out Mr and Mrs A’s explanation as given in the letter from their solicitors of
31 May 2017:
“My clients are conscious that a potential move to the US has been raised within these proceedings before (at a time when there was no such possibility) as a complicating factor. They accept that they asked the audiologist not to mention their conversation because there is no certainty around this issue and, frankly, they wanted to avoid just this scenario. This was certainly a mistake and they also accept that. Apologies are offered.”
23.
Ms Bazley submitted that this was not a situation in which I should
summarily determine the case against the father. She referred to the important
observations of Butler-Sloss LJ, as she them was, in Re B (Minors) (Contact)
[1994] 2 FLR 1, 5-6, endorsed by Wilson LJ, as he then was, in Re C
(Contact: Conduct of Hearings) [2006] EWCA Civ 144, [2006] 2 FLR 289, paras
30-33, and to what I had said in Re C (Family
Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15.
24. This being, as she would have it, a case of fraud, Ms Bazley also relied upon what Baroness Hale of Richmond had said in Sharland v Sharland [2015] UKSC 60, [2016] AC 871, [2015] 2 FLR 1367, paras 32-33:
“32 … a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality. Furthermore, the court is in no position to protect the victim from the deception, or to conduct its statutory duties properly, because the court too has been deceived …
33 The only exception is where the court is satisfied that, at the time when it made the consent order, the fraud would not have influenced a reasonable person to agree to it, nor, had it known then what it knows now, would the court have made a significantly different order, whether or not the parties had agreed to it. But in my view, the burden of satisfying the court of that must lie with the perpetrator of the fraud. It was wrong in this case to place upon the victim the burden of showing that it would have made a difference.”
“It is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure … in all matters in respect of children.”
Whether, formally, that
Practice Direction is still force may be a nice question (it no longer appears
in the Family
Court Practice), but there can be no doubt as to the continuing
vitality of this fundamentally important principle. Nor can there be any doubt
that this duty of disclosure continues, in a
family
case just as in a civil
case, until the handing down of any reserved judgment: see CPR 31.11(1) as
explained in Vernon v Bosley (No 2) [1998] 1 FLR 304, 318, 321, 343,
345.
i) I had accepted the evidence of Mr and Mrs A. It is important to recognise that they had not, either in their written or in their oral evidence, ruled out the possibility of a future move to the USA. And I had not (judgment, para 100) made any finding to the effect that they were going to remain in this country.
ii) My decision in relation to the fundamental question of adoption, yes or no, was not expressed as being contingent on my decision in relation to contact. Of course, as Ms Bazley observes, the possibility of future contact was something I had to have regard to – see sections 1(4)(f) and 51A of the 2002 Act – as I did (para 249). But the fundamental basis of my decision in relation to adoption was as set out in paras 250 and 252 and there is nothing there to suggest that my decision was contingent – because it was not – upon an assumption that there would be contact.
iii) There is nothing in the judgment to show that the direct contact which I envisaged (paras 100, 253) was necessarily to take place in this country, let alone that it was contingent on Mr and Mrs A continuing to live in this country. As Mr Bagchi put it, and I agree, my decision was not based on issues of geography.
i) In relation to the non-disclosure of Mr A’s acceptance of the job offer, this is not something fundamentally inconsistent with anything they had said in their evidence, or, as it turned out, with any assumption articulated in my judgment.
ii)
Their deliberate decision to conceal what had been said to the
audiologist on 12 May 2017
was after I had given my judgment and, more
significantly, a reaction not so much to the judgment as to the terms of the
order made two days before, on 10 May
2017.
28.
In my judgment, the father has not established a prima facie case of
fraud or dishonesty, and in these circumstances it would be quite wrong to
require Mr and Mrs A to give further disclosure or to answer further questions
put by the father’s representatives, whether orally or in writing. Even in the
Family
Division, the normal principles apply. A claimant who cannot establish a
prima facie case of fraud or dishonesty is not to be permitted to interrogate
the defendant, embarking upon a fishing expedition in the hope that enough my
turn up to make the charge ‘stick’. This being so, the principle in Sharland
v Sharland has no application, for, as Baroness Hale’s formulation of the
principle makes clear, it bites only if fraud has been established.
29.
Quite apart from that there is, as Mr Feehan has correctly submitted, no
basis upon which it can plausibly be suggested that any fraud or dishonesty
there might have been has actually impacted upon my decision that W must be
adopted. I repeat what I have already said in paragraph 26 above. The point is
fundamental. It is not enough to show, even assuming one can, that there has
been fraud, dishonesty or perjury. What has to be shown, to adopt Sir Thomas
Bingham’s words in In re B, is that the adoption order was “obtained by”
the fraud. And that, as Mr Feehan submits, the father cannot possibly show
given what I said in the judgment. As he puts it, and I agree, the adoption was
not dependent on Mr and Mrs A following through on contact but rather upon the severe
detriment to W were she to be taken away from the care of her adoptive family.
Mr Bagchi puts the same point in other words when he submits, and again I
agree, that what is complained of even if taken at its highest cannot
amount to a valid ground for setting aside the adoption order.