England and Wales Family Court Decisions (High Court Judges)

Neutral Citation Number : [2015] EWFC 63

Case No.MB116/14

 

26/01/2015

IN THE FAMILY COURT AT MIDDLESBROUGH

 

 

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002

 

IN THE MATTER OF A (A Child)

 

PROSPECTIVE ADOPTERS

Applicants

And

 

Wendy

1 ^ST Respondent

And

 

JD

2 ^ND Respondent

And

 

AC

3 ^RD Respondent

And

 

NYCC

4 ^TH Respondent

 

NOTE : 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.'

 

 

 

 

JUDGMENT OF Her Honour Judge Matthews QC

 

1.                   I am concerned with the welfare of A dob. 22.5.13 [“A” hereafter, who is now 21 months of age. An application has been made [dated 3.11.14] to this court for an Adoption Order in respect of A by the couple who have cared for her since 13.6.13. I shall refer to them only as the Prospective Adopters in this judgment.

2.                   A’s birth mother is Wendy who is 28 years and her birth Father is JD who is 44 years old. A is a product of a partial surrogacy arrangement which resulted in difficulties and consequent protracted legal proceedings before this court. Father, supported by his partner, AC who was the commissioning Mother in respect of the partial surrogacy, now seeks the permission of the court to oppose the adoption application under s.47(5) of the Adoption and Children Act 2002. I have made AC a party to this application as, although she is not biologically related to A , she was the “commissioning” mother under the surrogacy arrangement and cared for A for the first 13 months of her life. It was obviously appropriate in my judgment that she has an opportunity to take part in the hearing alongside Father.

3.                   My previous judgment in this matter dated 13.6.14 is set out in the bundle for this hearing [B4-36] and should be read together with this judgment in order to make any attempt to comprehend the complexity of this child’s brief life hitherto and the process which has surrounded her. I do not propose to rehearse the detail of the factual substratum which led to that judgment again here.

4.                   On 13.6.14 I made Care and Placement Orders in respect of A to North Yorkshire County Council [“NYCC”] authorising them to place A with the Prospective Adopters. The Care Plan placed before the court by NYCC was to remove A from the care of JD and his partner AC and to place her in a fostering to adopt placement immediately. This was achieved on the same day and I was very pleased to read in the Rule 14.11 (3) report [18.12.14] that A has thrived in their care and has not suffered significantly as a result of the transition from one set of carers to another.

5.                   A’s Guardian was previously, JS who was a specialist in dealing with Parental Order applications, which was the first application to come before the court in this matter. JS, sadly could not take up the renewed appointment on this occasion and I therefore appointed a very experienced local guardian, MS [referred to as Childs Guardian “CG” in this judgment]. I am very grateful for her assistance in this matter which she provided in such a short timescale. I considered it to be imperative that this matter was resolved within an appropriate time frame for the benefit of all of the interested parties. Her report dated 20.2.15 and her live evidence to the court have been invaluable in reaching a decision in this matter.

6.                   JD and AC have represented themselves before the court as they could not secure public funding. Wendy has also appeared on her own behalf by the link from Newcastle Combined Court Centre. NYCC and the CG were represented by Counsel. On 23.2.15 I heard evidence on oath from the Social Worker, Father, his partner AC and the CG.

7.                   In the light of the way matters proceeded during the first set of legal proceedings when the parties were represented, I considered it particularly important to hear evidence on oath rather than simply hear submissions from the parties. The importance of the court hearing a truthful account is never more important than when making such momentous and final decisions in the life of a child.

8.                   On 23.2.15, I refused permission to the Natural Father [and indeed Natural Mother] to oppose the adoption application and indicated that a written ruling would be provided from which time the 21 day time period [now running from 26.2.15 as a result of the late dissemination of this written judgment due to technological reasons] for the purposes of any appeal would commence. I apologise to the parties for that delay.

 

 

The Positions of the Parties before the Court

9.                   Wendy has revised her initial position in response to the adoption application which was to ask the court to make a direct contact order in her favour. Her revised position was to seek Indirect Contact only, on two occasions per annum to include photographs. She did not ask for A to be placed in her care nor did she actually seek permission to oppose the adoption. However, by asking for contact other than that proposed in the Care Plan it could be considered that she was asking to be heard by the court at a subsequent adoption hearing. At the conclusion of the hearing, Mother effectively accepted the revised level of indirect contact recommended by the LA, which I will refer to later in this judgment.

10.               JD and his partner seek the return of A to their care immediately and say that they would be prepared to work with the authorities under a Supervision Order if necessary. They do not accept the findings of the court in respect of Threshold nor in respect of the need for A to be removed and placed in alternative care. They do not accept that it was necessary to initiate care proceedings at all. In the alternative, if A is not returned to their care the couple seek direct contact with A. Initially, they were requesting a level of 3 times per week but have now revised that down to 2-3 times per annum .

11.               The Local Authority, who are the Adoption Agency in this instance, consider that there has been no change in the position of the Natural Father and his partner and support the making of an Adoption Order to the Prospective Adopters. They submit that the placement has been extremely successful.

12.               The new Children’s Guardian, having carried out her own independent evaluation of the circumstances, supports the continuation of the plan to secure A’s future by way of Adoption with the Prospective Adopters. She does not consider that Direct Contact would be in the best interests of A given the antipathetic stance of JD and AC toward the adoption and their inability to work openly and honestly with the LA. She has visited A in placement and has seen for herself the strong attachment which she has formed with the adopters.

 

Events post dating the Final Hearing on 13.6.14

13.               A was placed with the prospective adopters that evening and has made remarkable progress since that time. She is well embedded in their family and they are meeting all of her physical and emotional needs. A settling in letter has been prepared to be handed over to the natural parents. I am satisfied as is the independent CG that this is indeed an excellent placement and that the prospective adopters have claimed A and are prepared to devote their life to her care both during her minority and into adulthood.

 

14.               The removal of A was obviously traumatic for JD and AC and indeed for AC’s children, R and D. The evidence of the CG would support a view that they have failed to move on from this and their lives have been geared to fighting the decision since that time. They say in their statements to the court that there will always be a room for A in their home which gives the impression of some sort of shrine. JD and AC wanted R and D who are children with learning difficulties to be present at the removal of A by the social workers.

15.               They said during this hearing that this was to provide some “closure” for them. I indicated that this was not an appropriate step and that those children should not be present at such a highly charged emotional event. In my judgment subsequent carefully planned contact visits were more appropriate for effecting some sort of closure for R and D. Unfortunately, JD and AC still do not understand that this was completely inappropriate. This is only one example of their complete inability to appropriately consider the emotional needs of R and D.

 

16.               They have, in my judgment compounded the emotional damage which they have inflicted upon these children through the surrogacy venture by continuing to involve them in discussions about A possibly returning home to them and allowing them to select wallpaper for her bedroom in the new family home. AC told the court that R was nearly 17 years and therefore she was almost an adult and therefore that this was appropriate.

 

17.               However, this simplistic analysis ignores the fact that R’s chronological age is not in keeping with her emotional and intellectual maturity. This is a continuation of a theme from the previous proceedings in which the emotional needs of the children were ignored in the pursuit of the surrogacy. The children were lied to and misled by JD and AC, in addition to numerous professionals. The couple dismiss the significance of this in their evidence on the basis that it was what they thought best at the time. They appear to have learnt little from the previous legal proceedings.

 

18.               It is noticeable that it was the CG who suggested that R and D not be part of discussions about A during her visit to the family home, not their carers. Yet, the couple declined this suggestion and subsequently R left the room in some considerable distress. It seems clear to me that the emotional intelligence and sensitivity of JD and AC has not improved in the period since the conclusion of the care and placement proceedings.

 

19.               On 8.7.14 JD and AC sought to appeal against my judgment and the Orders of 13.6.14. Their application for permission to Appeal and for an extension of time was dismissed by Lord Justice Ryder as “totally without merit” on 29.8.14. It appears that JD has attempted to renew his application for permission to appeal, presumably by seeking an oral hearing. He has subsequent to 29.8.14 filed a further appeal notice on 23.9.14 and he has ticked the box “previous appeal decision” at F12. He says at F15 that they are asking that the Care and Placement Orders be revoked and that A be placed back in their care, if necessary under a Supervision Order. He says “we apply for an order that stops the adoption process going ahead” and “ we apply for an order that we can have more contact”.

 

20.               My understanding is that there is no outstanding appeal before the Court of Appeal in respect of this child. I have caused the court staff to check this and I invite the LA to check this again as it is my intention to make an adoption order in respect of this child in 21 days time should no further appeal be extant at that time either against the Care and Placement Orders or against the order refusing permission to oppose the adoption application.

 

21.               Wendy’s application for permission to appeal and an extension of time to appeal against my decision, whereby she was seeking to have Indirect Contact once per month [F126] was refused by Lady Justice King on 20.1.15. This suggestion of once per month indirect contact was not one of the many positions adopted by natural mother during the varied course of the previous hearing.

 

22.               Natural Mother’s life has continued to be eventful in that she has recently separated from her partner, N.C , the father of her daughter C. She already has a new partner who she wanted to sit in during the hearing on Monday. This was refused due to the highly confidential nature of the proceedings and the objections of the other parties. Mother appears to have run away from Kilmarnock and now resides somewhere in Newcastle.

 

23.               Great efforts were made to set up a link for her from Kilmarnock for yesterday’s hearing. It was then discovered that she was in Newcastle. After considerable delay and effort a link was established to Newcastle to enable Mother to take part in the hearing. I do not accept that she had made a request of the court staff prior to yesterday to facilitate a link from Newcastle. In fact, as I write this judgment [on 24.2.15] an email has just arrived at the court requesting the same. This is sadly, simply a continuation of the themes all too prevalent in the care proceedings.

 

The Law

24.               The application by the Father is for permission to oppose the adoption application is under s.47(5) of the Adoption and Children Act 2002. The Court cannot give leave unless it is satisfied that there has been a change in circumstances since the making of the placement order (s.47(7) ACA 2002). The test to be applied by the court to such an application is a two stage test:

a.        Has there been a change in circumstances?

b.       If so, should leave to apply be granted?

25.               The test is therefore similar to that in respect of an application for permission to apply to revoke a placement order in respect of a change in circumstances. However, the significant difference between the applications relates to the second limb – if a sufficient change is established, whether permission to apply should be granted. In respect of a permission to oppose an adoption, the child’s welfare is paramount at the second stage.

26.               Re B-S (Children) [2013] EWCA Civ 1146

At paragraph 74, the President of the Family Division said that at the second stage, the court will consider all the circumstances including two interrelated questions: first, the parent’s ultimate prospect of success if given leave to oppose; second, the impact on the child if the parent is/is not given leave to oppose (remembering that the child’s welfare is paramount at this stage).

 

26. There were 10 factors which the President identified as being relevant to the weighing of these considerations:

(i) the prospects of success relate to the prospects of resisting the adoption, not ultimately having the child returned to them;

(ii)                the 2 questions of whether there has been change and whether the parent has solid grounds, are separate but are almost invariably intertwined;

(iii)              once a change in circumstances is established and the parent has established solid grounds for seeking leave, the judge must very carefully consider whether the child’s welfare necessitates the refusal of leave, remembering that adoption is the “last resort” and only permissible if “nothing else will do”;

(iv)              the judicial evaluation of the child’s welfare must take account of all of the negatives and positives of each of the options – giving or refusing leave to oppose; a balance sheet is encouraged;

(v)                the close focus on circumstances requires proper evidence, but not necessarily oral evidence and therefore such applications are typically dealt with as here on submissions;

(vi)              Generally, the greater the change (positive) in circumstances and the more solid a parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused;

(vii)            The mere fact of placement with the prospective adopters is not determinative, nor is the passage of time but the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be;

(viii)          The welfare of the child throughout his life is paramount, so short term consequences if leave were given should not be given undue weight;

(ix)              Any adverse impact on the adopters and thereby on the child, of granting leave should also not be given undue weight, although it should be taken into account;

(x)                The test should not be set too high.

 

27. The key issue is whether the parent’s ultimate prospects have solidity. There have been a number of Post B-S decisions in respect of these applications. Re W (A Child); Re H (Children) [2013] EWCA Civ 1177 (Munby P). In evaluating what the child’s welfare demanded, the judge would bear in mind what had happened in the past, the current state of affairs and what would or might happen in the future. There would be cases where, despite the change of circumstances, the demands of the child’s welfare were such as to lead the judge to conclude that the parent’s prospects of success lacked solidity.

 

28. Whilst undue weight should not be given to short term consequences of giving leave even short term consequences would be relevant ( Re D (Leave to Oppose Making of an Adoption Order [2013] EWCA Civ 1480 (Black LJ). It is not correct to submit that the mere fact of Re B-S provides evidence of “change”. The Court of Appeal have been quite clear in Re R (A Child) [2014] EWCA Civ 1625 [Munby P and McFarlane LJ] , The President at para 44 that B-S was not intended to change and has not changed the law. It was primarily directed to practice: the need for proper evidence from the Local Authority and the Guardian addressing all of the realistic options with an analysis of the realistic placement options and an adequately reasoned judgment . Nothing in B-S places a gloss on or erodes the statutory requirements of s.1 CA 1989 and s.1 ACA 2002.

The Evidence heard by the Court

29. The Father and AC asked very few questions of the social worker save for some dispute over the issue of crisps and whether they were given to A at one of the goodbye contacts which does not affect my decision making in respect of this matter. The Father had to leave court prior to the Guardian giving evidence in order to be present for R and D returning from school. The hearing was delayed in starting as a result of the efforts to provide a link for Mother from Newcastle. However, no questions were asked of the CG by AC and Father did not pose any questions to the social worker either.
30. The Father and AC presented very similarly in evidence to the last occasion. They do not accept the reasons for the judgment. They do not understand why A has been removed as they consider that she never suffered any emotional harm whilst in their care and therefore would not be likely to do so in the future either. In any event they submitted that a Supervision Order could be made which would reassure professionals about their care. They consider that A could be simply transferred back to them without any undue distress as she has moved once, she can move again.
31. In terms of the issue of change they point to the factors set out in their statements which I have read [C8-15]. They are moving to live in a bigger house. Father has instituted divorce proceedings to end his first marriage and the couple hope to marry each other in June. They have opened a joint bank account. The LA involvement with R and D has ended. Contact with D’s school has been maintained and they have enrolled on a parenting course of which 2 or 3 sessions have been undertaken [they were not sure exactly how many].
32. In addition, they relied heavily on an assessment by a Locum Consultant Psychiatrist, [C1-4] who saw AC on 8.1.15. His conclusion “based predominantly on her own account” was that there was no acute mental illness which currently requires any psychotropic medication. There was no evidence of any depressive illness, psychotic illness, anxiety disorder or any PTSD. AC did not feel that she needed any counselling at the present with regard to her history of being a victim of sexual and physical abuse.
33. This was a very superficial assessment based upon AC’s report. Sadly, as I made in clear in my previous judgment AC is not a reliable historian or witness. The picture she gave to Dr.O is quite a different one to that which I found she gave to the nurse from ATOS when she said she was hearing voices and had been recently suicidal. Of course in this current instance AC wanted to achieve a positive report to use in these proceedings. She told the doctor that she needed a copy of his report for the purpose of these proceedings.
34. Therefore, in my judgment she gave the doctor a positive account of her mental health. When she spoke to the nurse from ATOS she gave a negative picture either because she wanted to maintain or increase her benefits or because what she said was true and she was suffering as she described. Whichever version was correct at that time AC then went on to lie about this interview to the court in a quite spectacular fashion by accusing the nurse from ATOS of perpetrating a sexual assault upon her during the course of the examination. Unfortunately, it is impossible to assess the true state of AC’s mental health as she lies so much.
35. The Locum Consultant did not have access to all of the material I have in relation to AC. Nor has the doctor had the opportunity to observe her over the protracted period which I have had the benefit of. This report does not represent a change in her mental health which could cause this court to be more confident of her ability to meet the needs of A appropriately.
36. A forensic report would be required to reassure the court that AC was emotionally stable. Any expert preparing such a report would need access to my judgment and to all of the material which led me to formulate those conclusions. It is only by an examination of the whole picture rather than the part of the picture that the parties wish one to see, that an authoritative opinion can be reached. The opinion of the doctor represents a snapshot.
37. A change which has occurred since 13.6.13 which is clearly not positive and in fact is a retrograde step, is AC’s decision to make contact with her son LF. She had told me during the first set of proceedings that she was terrified of him and castigated Wendy for making contact with him and putting her in fear. This is the son who held her at knife point and served a prison sentence as a result. She could not explain why she had renewed contact but said that she wouldn’t be having more contact with him as she had found out that his child had been found to have 2 broken legs. In addition, apparently, his current partner and mother of that child had already had 5 children removed from her care by the LA.
38. It is hard to know what is true but this would tend to show that renewed contact was unwise and was completely contrary to her previous stated evidence. In the event that A had remained in her care AC would have put her at risk of being hurt by this young man if he had discovered AC’s whereabouts. The superficiality of approach by AC and JD to the issues which impact upon children is extremely concerning. They do not seem to comprehend such issues and when they are pointed out to them they literally shrug and say it won’t happen or they’ll manage it if it does.
39. The theme of the couple ascribing views to professionals which those professionals do not agree with, continues. TT, social worker strongly disputes that she said to them that she didn’t know why the LA were involved with the family. She states that she has raised numerous issues of concern in relation to their lack of insight into the impact upon R and D of their behaviour with the couple but they have ignored these issues. She has specifically raised with them the lack of wisdom in relation to the recent contact with LF, especially given that D is very frightened of him.
40. LN from the Family Intervention Team also disputes the comments ascribed to her by the couple. During the last proceedings AC and JD repeatedly said that professionals had given them certain advice which was not supported by evidence. This is part of a pattern of failing to take responsibility for their own actions and blaming others when things go wrong.

 

Conclusion

41. I communicated to the parties on Monday my decision not to grant permission to the Father and his partner to oppose the adoption application. I do not consider that father and his partner have demonstrated that they have effected any change to cause me to allow them to oppose this application. Such change as has been effected is cosmetic and does not address the real issues highlighted by the judgment. Even if I considered that there had been sufficient change sufficient to “open the door” to the birth parents I do not consider that it would be in A’s welfare interest for me to grant permission to oppose and it is not contrary to her welfare interest for me to refuse that permission.
42. There is no acceptance of the issues from the judgment or movement in relation to them. There is no understanding of the complexities of the position for A either prior to removal or now after 8 months in the care of the prospective adopters. They have embarked on a parenting course but they don’t really feel that they need it and when pressed said effectively that “there are always things you can learn”.
43. All of the factors which caused me to take the draconian step of removal still apply. I did not take that step lightly. However, as I indicated in the previous judgment the behaviour of the parties demonstrated to the court very clearly why I needed to do that to safeguard A. The enmity between Wendy and JD and AC continues. There has been a criminal investigation into the alleged threats and pressure by Wendy on AC. There is not to be any criminal prosecution but it was clear from Wendy’s questions that this has soured the relationship still further.
44. Mother’s life appears to be as volatile as ever if not out of control. She has seemingly run away from her former partner with C and has hitched her star to another man already who she may or may not have been having a relationship with for the last 2 years. If A were returned to the care of JD and AC Mother would be likely to seek to interfere in that relationship as she is strongly against them caring for her.
45. AC and JD’s prospects have no solidity. Their prospects of successfully opposing the adoption are very low indeed. I know they love her and I am sure that her absence has left a significant void in their lives. However, they are singularly ill equipped to meet her emotional needs. I would not have taken that step of placing her for adoption unless nothing else would do. What I have seen and read about them at this second stage of legal proceedings has only reinforced the appropriateness of the decision previously made.
46. I note that the couple submit to the Court of Appeal that the “Judge was going to go with a Supervision Order but retracted that saying that we would not stick to anything in the supervision order”. This is not correct. It is tempting to consider that they have simply misunderstood how I set out my consideration and balanced the options in my judgment but sadly they do have a history of twisting and misquoting professionals as I have set out above. I do not consider that they are in any better position to co-operate with professionals than they were on 13.6.14.
47. It is virtually impossible to get AC and JD to consider matters from a different perspective to that which they have. Even when they have been caught out in a deliberate lie and they accept that it was such they do not appreciate the significance of their actions. They simply shrug it off. They appear to operate in a parallel universe in which the truth is what they want it to be at a given time. They are perfectly polite but implacable in their attitudes.
48. This also applies equally to Mother. Her life is in turmoil. She is very cross with AC and JD. I am satisfied that she has not completed the Life Story Work that she has been sent on two occasions to submit for A. She gave an incomprehensible explanation as to why this had not been done despite the fact that she said it had been completed in her statement. JD and AC also have not done this and have shown a lukewarm response to the need to do it.
49. Wendy has no existing relationship with A. Such contact as she has had with her has been rather rushed and clandestine. Her commitment has not been consistent. She has changed her mind on several occasions as to what she considers appropriate for A’s future. However, she has eventually after discussions with the CG determined that adoption is in A’s best interest and she is to be commended for that difficult decision. She is also not asking for direct contact as she says that she knows that will be confusing for A.
50. I do not consider that direct contact is in the best interests of A to either JD (and AC) or to Wendy. None of them have the emotional maturity required to deal with such a difficult enterprise. They would be highly likely to discuss inappropriate matters with A and cause her significant emotional damage. I appreciate that JD considers that a biological parent is the best person to discuss matters relating to her parentage with her but I do not consider that he is well equipped to do that. Everything indicates that in fact he, AC and Wendy are absolutely not the appropriate people to discuss those complex issues with her.
51. The prospective adopters are in a much better position to do that as they are objective and detached from the circumstances which surrounded this disastrous surrogacy arrangement. They will have the best interests of A at heart and not an agenda of self interest. Direct contact would be fraught with difficulty but particularly for the prospective adopters and A.
52. Professionals have had great difficulty dealing with the parties in this case even during the course of court proceedings it has proved impossible to control their behaviour. I do not consider that the prospective adopters would be in any better position to do so. The benefit to A of maintaining some contact is hugely outweighed by the potential damage of doing so. In my judgment Indirect Contact will be appropriate and helpful for identification purposes and to reassure her that JD, AC and Wendy care for her.
53. This is a confidential and anonymous placement. It has to be protected and no steps should be taken which may cause it to be undermined. The prospective adopters put themselves forward for A on the basis that it was a closed adoption. The birth parents are extremely difficult to deal with. All 3 parties are devious and manipulative. They cannot consistently prioritise the needs of A over their own. She has been used like an emotional football or bargaining chip at times.
54. I am very concerned that if there is any scope for identifying the placement it is likely to lead to problems for A. I agree with the LA and the CG that the exchange of photographs is inappropriate in this case as it is likely to lead to an attempt to locate her. The use of social media has been a significant feature of the factual background herein and I cannot trust these parties not to resort to searching for A via these or other media.
55. It is essential to her future emotional stability that she is not subject to the type of warring behaviour which has so marked her life hitherto. She needs peace, calm, stability and consistent nurturing care.
56. Photographs would be extremely risky in terms of confidentiality and I am not prepared to take that risk with her welfare. The redacted Rule 14.11 (3) report had the photograph redacted. Of course birth parents may send photographs to A for her to keep but it is not appropriate for that to happen in reverse. The CG suggested and I agree that two times per annum indirect contact from the birth parents to A is appropriate with once per annum from A [adopters] to birth parents.
57. I do not consider it fair to place too significant a burden upon the prospective adopters in terms of indirect contact. An annual bulletin will suffice. The LA agreed to revise their plan on the indirect contact accordingly. As a result A will be able to build up a significant portfolio of information from her birth parents throughout her minority if they chose to help her with that which sadly, they have not done so far.
58. It is obviously a significant loss to A not to be brought up by a member of her biological family. However, in balancing the factors for A throughout her life as opposed to simply those which would apply during her minority, in my judgment the balance tips very heavily in favour of a closed adoption here. She will be much more likely to be able to cope with the knowledge of her complex background if she has the loving support of the prospective adopters during the whole of her life rather than the emotionally chaotic life which JD and AC [or indeed Wendy] would provide to her.

 

 

 

The Orders I make

59. Those orders are as follows:
1. Permission to oppose refused [for the sake of clarity] to Mother, Father and AC;
2. Adoption Order to be made at the expiration of 21 days from the date of this Order if no appeals are extant before the Court of Appeal against either of the two judgments/orders;

26.1.15.