R (A Child) [2014] EWCC B54 (Fam) (26 March 2014)

JUDGMENT

1. THE JUDGE: This case is listed before me today for the second time in relation to a young boy, R, who is now 2½ years of age. The proceedings came before me first on 7^th February 2014 for what was expected to be the final hearing of the adoption application in respect of R, who was made the subject of a placement order by the Family Proceedings Court in November 2012. I will return to the circumstances in which that order was made shortly.

2. In advance of the hearing on 7^th February 2014, it had become clear to the Local Authority that R’s mother had indicated a wish to oppose the adoption application. She attended the hearing, together with her mental health advocate, MF, from Organisation A and confirmed that position. The Local Authority was represented on that occasion by the Local Authority solicitor, Mr Clarke. I gave directions for evidence to be filed with a view to the case coming back before me today, 26^th March 2014, for determination of the application by the mother for permission to oppose the adoption application.

3. At the time the case was before me on 7 February 2014, it was unclear whether the mother would secure public funding for legal aid for representation in these proceedings. I was very grateful on that occasion to MF for the obvious assistance that he gave to the mother and, indeed, to the court in explaining the issues to the mother and ensuring that I fully understood what she was seeking to put before the court. The mother is a young woman, now 23 years of age, who has a mild learning disability, as a result of which MF has been providing her with support through Organisation A.

4. The directions I gave provided for the mother to file a statement which would set out the necessary matters for the court’s consideration in determining her application for permission to oppose the adoption application. I spent some time explaining to her, with MF’s assistance, that she would need to demonstrate a change since the order was made by the Family Proceedings Court which would provide the court with a proper basis for re‑visiting the issue. I also explained to her that even if those changes were demonstrated, the court would then look to whether she had established a solid basis for seeking to oppose the application and whether R’s welfare interests were met by her being given permission to oppose the adoption. I gave a direction for the Local Authority social worker to file a statement in response and I also gave directions for the relevant documentation to be filed, namely the bundle from the care proceedings and a supplementary bundle relating to the application for permission to oppose. I now have that material, together with written submissions prepared by Mr Blackburn, the Local Authority solicitor who has attended today’s hearing.

5. Legal aid has not been granted to the mother despite the best endeavours which have been made on her behalf to secure legal aid. I find it a matter of real regret for a young woman with obvious limitations to find herself without representation, in circumstances in which other applications for permission to oppose are made before me from time to time with the assistance of representation through legal aid. That said, MF offered his ongoing assistance at the time of the hearing before me on 7^th February 2014 and he has very clearly done that in assisting the mother in preparing a statement dated 4^th March 2014 (which is in the supplementary bundle at page 29). The mother’s position is that she does not agree to the adoption and would like to be able to oppose the adoption, but her principal issue is with the conclusions reached by the Family Proceedings Court at the time that they made the final care order and placement order on 27^th November 2012.

6. The mother sets out in her statement the circumstances in which she says that the earlier proceedings did not take account of her learning disabilities and that the work which was undertaken with her and the assessment of her did not meet her needs in her circumstances. She was aware from the directions that I had given and the advice that she has received, both from MF and the solicitor who was seeking to act on her behalf, that the court would look to changes since that order was made, in circumstances in which there had been no challenge to the order of the Family Proceedings Court by way of any appeal.

7. The mother set out her current circumstances in her statement. She is now living with her grandmother and is not in a relationship. She says that she has settled in her accommodation with her ‘nana’, as she calls her, and she says that she would like to be able to live there with R. She does not set out any other changes which she invites the court to take account of, other than she is now receiving support from MF and Organisation A and other support services.

8. The statement filed by Rachel Halliday, social worker, sets out the Local Authority’s understanding of the mother’s circumstances. There has, it seems, been very little contact with her since the care proceedings concluded. The statement does set out the very positive work which has been undertaken in terms of life story work with information provided by the mother in August 2013.

9. The mother’s statement recorded that she still opposes the adoption application but had decided not to attend this hearing to pursue her application in person. She made it clear that this did not indicate any changed position on her part, but simply the position that she had taken with the advice and support of MF and, it seems, the solicitor who had sought to represent her about the approach of the court on such an application.

10. I am grateful to Mr Blackburn for maintaining contact with MF since the statement was filed, to seek to ascertain whether there was any changed position or whether the mother was likely to attend the hearing. There was most recently an e-mail exchange between Mr Blackburn and MF yesterday. In an e-mail from MF, sent yesterday afternoon shortly after 3pm, he indicated that he doubted that the mother would attend. He says this:

‘Despite my best efforts, I haven’t been able to contact her regarding attendance or to go through the Local Authority statement. My last contact with her was on 4^th March, at which time she didn’t plan on attending the hearing. I assume she will not be attending court tomorrow.’

He then went on to explain his arrangements for the day, should be need to be contacted. There has been some contact between the mother and the Local Authority, in that she spoke to Lynn Stoker, the adoption social worker with responsibility for R. In the course of that telephone conversation - which I believe was yesterday - the mother once again confirmed that she did not intend to attend the hearing. She has not done so.

11. It is against that unhappy background that I deal with the application for permission to oppose the adoption application. I can set out the relevant background very briefly. As I have already indicated, I have the full care bundle from the proceedings before the Family Proceedings Court, as well as the supplementary bundle filed in relation to the application for permission to oppose. The care bundle sets out the full material which was before the court and I also have the Magistrates’ reasons. It is clear that the Local Authority were concerned about the circumstances in which the mother was pregnant and her ability to care for her baby in the light of her difficulties. The relationship between the mother and the father appears to have come to an end before R’s birth on 13^th September 2011. The father does not have parental responsibility for R – he is not named on his birth certificate and hasn’t otherwise acquired parental responsibility. He has not engaged in these proceedings, although he was notified of them.

12. Following R’s birth he lived in the care of his mother until he was admitted to hospital on 17^th April 2012, where he was found to be quite poorly and suffering from gastroenteritis. There was considerable concern about the care the mother was able to give him, such that he was accommodated and placed with foster carers on 20^th April 2012. He remained with foster carers throughout the care proceedings, which concluded some seven months later. The care proceedings included assessments of the mother, not only by the Local Authority but also an assessment undertaken of her by Dr Lisa Rippon, a consultant psychiatrist. These assessments did not support R’s placement with his mother. The Local Authority did not consider there to be any alternative family placement that would meet R’s needs. In these circumstances, the Local Authority plan put before the court in November 2012 was for R’s placement for adoption. The care plan proposed indirect contact for R with his birth family. That care plan was approved by the court in making the final care order.

13. I have already referred to the mother’s view that her learning disability was not adequately accounted for in the manner of assessment and consideration of her case before the Family Proceedings Court. Mr Blackburn has been able to give me a little more information about the circumstances of her representation. It appears that there was a change in the solicitor representing her during the course of the proceedings. She was, however, represented by experienced specialist family counsel at the hearing before the Family Proceedings Court. On 27^th November 2012 the court made a final care order, approving the care plan of adoption and indirect contact, and then proceeded to deal with the placement application. The court made a placement order approving the plan of adoption and dispensing with the mother’s consent to the application on the basis that R’s welfare required it. Both sets of reasons are included in the supplementary bundle filed for today’s hearing.

14. The final contact took place between the mother and R on 3^rd December 2012. In August 2013 the life story work was undertaken, which will provide valuable information for R in the future. R was duly matched with his prospective adopters and then placed with them on 3^rd September 2013. He has now been in that placement for six months. On all accounts, R is thriving in the placement, in which he is very well loved and his needs are very well met.

15. In determining this application, I have applied the following legal framework. The magistrates made a placement orders in respect of R on 27^th November 2012 pursuant to section 26 Adoption and Children Act 2002. Parental consent was dispensed with in accordance with section 52. Section 47 Adoption and Children Act 2002 sets out the conditions for making an adoption order. The relevant parts are as follows:

(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met;

(4) The second condition is that—

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,

(b)...

(ii) the child was placed for adoption under a placement order, and

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave...

(7) The court cannot give leave under subsection (5) unless satisfied that there has been a change in circumstances since... the placement order was made.

16. I make it clear that, in the application of these provisions, I have taken account of the following principles. Article 8 rights for respect for private and family life are clearly engaged. There can be no clearer situation where that is the case. The order proposed is an adoption order, altering the legal relationships for R so that his relationships with his birth family are terminated. Such an order can only be made where it is necessary and proportionate. Orders contemplating non-consensual adoption are very extreme orders of last resort to be made in exceptional circumstances, where nothing else will do and where no other course is possible in a child’s interests: Re B (A Child) [2013] UKSC 33.

17. Section 47(5) Adoption and Children Act 2002 is intended to provide a real and meaningful remedy in appropriate cases. An application pursuant to section 47(5) is considered in two stages: first, has there been a change in circumstances; second, if so, should leave to oppose be granted? The first question, whether there has been a relevant change in circumstances, was considered in Re P (Adoption and Leave Provisions) [2007] EWCA Civ 616 where Wall LJ said in paragraphs 30 to 32 that the change of circumstances since a placement order was made must be of a nature and degree sufficient on the facts of a particular case to open the door to the exercise of judicial discretion to defend the adoption proceedings. Whether or not there has been a relevant change in circumstances is a matter of fact to be decided by good sense and sound judgment of the tribunal hearing the application.

18. The second question, if there has been a change in circumstances whether leave should be given, was addressed in detail in the judgment of the President in Re B-S (Children) [2013] EWCA Civ 1146. At paragraph 74, he said the court needs to consider all the circumstances, in particular two interrelated questions: (1) the parents’ ultimate prospect of success if leave is given and (2) the impact on the child if the parent is or is not given leave to oppose, remembering that the child’s welfare is paramount at this stage. The court must assess whether the parent has established a solid basis for seeking permission to oppose the application. The President set out ten factors relevant to the weighing and balancing of the considerations in any case.

19. I pause to record that the welfare consideration is in accordance with section 1 Adoption and Children Act, so that the child’s welfare throughout his or her life is the court’s paramount consideration and the extended welfare checklist in section 1(4) must be applied, requiring the court to consider, among other factors, the impact on the child of ceasing to be a member of the birth family and becoming an adopted person and the relationship the child has with the birth family, including the likelihood of the relationship continuing and the value of it doing so, the ability and willingness of the birth family to meet the child’s needs and the wishes and feelings of the birth family.

20. In this case I have already alluded to the changes which have been set out by the mother in her statement. They are very limited changes in her day-to-day living arrangements and fall very far short of the changes which the court would require to be persuaded that they were of a nature and degree sufficient on the facts of this case to open the door to the exercise of judicial discretion. The conclusions of the assessments that R could not safely be returned to his mother’s care were based on the history of her neglect of his needs when he was in her care and the professional assessment that she was not able to improve her parenting abilities in such a way which would allow her to provide consistently for R’s needs to a good enough standard.

21. I am quite satisfied on the evidence that I have read and heard that the changes which are relied upon by the mother fall far short of what would be required for the court to reach the second stage analysis of R’s welfare considerations. In these circumstances, the second stage of the test does not fall for consideration. I nonetheless record that, on the information before me, there is no solid basis for her application. I also make it clear that, had I been in a position to reach the welfare analysis stage of the application, the material which is before me strongly argues that R’s welfare needs are such that any application for permission to oppose should not be permitted.

22. I therefore refuse the mother’s application for permission to oppose the adoption application. I will direct a transcript of this judgment to be prepared at public expense (as I do in every case where an application for permission to oppose is made) and the court will then list the adoption application on the first convenient date after 21 days.

[Discussions re order follow]

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You are here: BAILII >> Databases >> England and Wales County Court (Family) >> R (A Child) [2014] EWCC B54 (Fam) (26 March 2014) URL: http://www.bailii.org/ew/cases/EWCC/Fam/2014/B54.html Cite as: [2014] EWCC B54 (Fam)

England and Wales County Court (Family)