W (Children : application for permission to oppose) [2014] EWFC B120 (18 September 2014)

JUDGMENT

1. THE JUDGE: These proceedings concern two young boys: A, born on 9^th November 2009 (aged 4 years 10 months) and B, born on 20^th February 2012 (aged 2 years 7 months). The children are the subject of adoption applications which were issued under serial numbers on 19^th June 2014. I give this extempore judgment at the conclusion of the hearing of applications by the birth parents pursuant to s.47(5) Adoption and Children Act 2002 for permission to oppose the adoption applications.

2. The case was listed before me on 21^st August 2014 for final hearing of the adoption applications. On that occasion, the birth parents (M and F) both attended court, acting in person then as they have today. F had indicated that he intended to attend by responding to the notice of hearing which had been sent to him, notifying the court of his intention to oppose the adoptions. His response was accompanied by a lengthy letter setting out his reasons. I explored with each of the parents what their position was. They both told me that they wanted to oppose the adoption applications on the basis that they were seeking placement of the boys in their respective care. I adjourned the case for a hearing to take place today to determine their applications for permission to oppose the adoption applications and gave directions to ensure that the case would be ready for hearing today.

3. I explained to the parents that the court needed, in the first instance, to consider any changes that they have made since the placement orders were made and that, if the court were satisfied of sufficient change, the court would consider whether the parties had established solid grounds for their application and that it was in the children’s best interests that permission to oppose be granted. I directed each of the parents to prepare statements, setting out the changes they say they have made since the care and placement orders were made on 7^th May 2013. I made it clear to the parents that they also needed to set out the reasons why they argued that it was in the children’s welfare interests for permission to oppose the adoption applications to be given. I directed the Local Authority social worker to file a statement, responding to the parents’ statements and providing the Local Authority’s reasons for opposing the parents’ applications. I directed the Local Authority to file the original bundle from the care proceedings and a supplementary bundle in respect of the applications for permission to oppose.

4. That material has been filed. I have now a statement (in letter form) from each of the parents: F’s letter is dated 28^th August 2014 and M’s is dated 3^rd September 2014. In the case of F, that letter supplements the letter he sent to the court when he returned the first notice of hearing. I have taken account of both of F’s letters. At this hearing each of the parents was sworn and supplemented their written representations with oral submissions, which also responded to a case summary prepared by Mr Donnelly (counsel instructed on behalf of the Local Authority for today’s hearing).

5. The background to the proceedings can be set out as follows. M is 46 years of age. F is 55. He has parental responsibility for both A and B as he is named on their birth certificates. The boys have an older sister, Z, who was born on 8^th November 2002. There are also three older half-siblings: two paternal half-siblings, Y and X; and a maternal half-sibling W.

6. The Local Authority was involved with the family for a considerable time before the care proceedings were issued. On 17^th February 2012 Z was accommodated by the local authority and placed in foster care. The care proceedings were issued within days of B’s birth on 20^th February 2012. The boys remained in the parents’ care until the final orders were made in May 2013. The parents were still in a relationship at the time that the care proceedings were issued, but separated in September or October 2012 and have remained separated since.

7. The children were subject to interim supervision orders during the care proceedings. The letters submitted by F have stressed his reliance upon the decision of a district judge at an early hearing, who approved the children remaining in their parents’ care during the proceedings subject to interim supervision orders.

8. A wide range of assessments were undertaken in the care proceedings. In addition to the Local Authority social work assessments, section F of the original court bundle includes a range of reports from treating medical practitioners, as well as psychiatric and psychological assessments following instruction in the proceedings. The assessments did not support the children remaining with their parents. The Local Authority’s final evidence set out its case for final care orders in respect of Z, A and B, in each case with care plans for their placement away from the birth family. In the case of Z, the plan was for long term foster care; the plan for the boys was for their placement together for adoption.

9. The contested final hearing was heard by DJ Jackson and concluded on 7^th May 2013 when he made final care and placement orders in respect of A and B. In making the care orders, he approved the care plan of adoption with indirect contact with the birth family. He made placement orders in respect of A and B, dispensing with the consent of the parents on the grounds that the welfare of each of the boys throughout their lives required it.

10. The threshold findings approved by the court were attached to the final care orders. I record those findings as part of this judgment as providing a useful benchmark from which the parents are to demonstrate change. The threshold schedule provides as follows:

(a) The parents have failed as a couple, and the mother on her own, to maintain the home to a consistently good enough standard.

(b) The parents have failed as a couple, and the mother on her own, to attend all appointments for the children.

(c) The parents have failed as a couple, and the mother on her own, to participate in social opportunities to stimulate the children and provide stimulation at home through play, encouraging [B’s] mobility and weight-bearing and talking with the children.

(d) The mother has failed to accept, take responsibility for and address her excessive and harmful use of alcohol and its link with the domestic violence in the relationship largely perpetrated by the mother on the father.

(e) The mother has failed to manage her anger. It is demonstrated by her extremely abusive behaviour to [F] to [Y] and to [W] and to professionals. Much of her abusive behaviour has happened in the presence of the children.

(f) The mother has failed to control her propensity towards violence, particularly towards the father, and her failure to accept and deal with that behaviour.

(g) The parents have failed as a couple to support [Z’s] development prior to 17^th February 2012 when she was removed by agreement from their care.

(h) The parenting offered by the mother and father was inconsistent with the father overindulging her and the mother neglecting her and allowing her bedroom to deteriorate to an unacceptably low standard.

(i) Their joint failure to follow through appointments, including referrals to occupational health, is evidence that they did not prioritise her development.

(j) The resulting behavioural difficulties, including soiling and smearing, became severe and significant.

These threshold findings reflect the longstanding concerns about the children in their parents’ care before and after the care proceedings were issued and through to the final hearing

11. It is clear from what I have read and what I have heard from each of the parents today that neither of them has ever accepted that the Local Authority had any proper basis for seeking the removal of the boys from their care. They each said then, as they have said now, that the children were not neglected; they told me that the children were provided with everything they could need, in terms of practical care, love and attention.

12. As A and B had remained in the care of one or both of their parents during the course of the proceedings, the final orders precipitated their removal to foster care. They remained in a short-term foster placement until a prospective adoptive placement was identified. In accordance with the approved plans for the children, the arrangements for contact concluded with a final visit between A, B and Z in July 2013 and with final contact sessions between the boys and the parents the following month. Although it is clear that the parents each disagree with the conclusions that were reached by the court in the threshold determination and the welfare analysis, the orders have not been the subject of successful appeal and remain in force.

13. An adoptive placement was identified for the boys and they moved to the prospective adopters on 31^st March 2014, almost six months ago. The Local Authority evidence is that the children have settled extremely well and are thriving in the care of the prospective adopters.

14. The order that I made on the last occasion directed each of the parents to set out in writing the changes that they rely upon since the placement orders were made. My direction was reinforced by a letter written to each of the parents by the Local Authority solicitor following the hearing, in which she explained in detail the basis upon which the court would approach this hearing and the test to be applied. It is clear from what each of the parents has said in their statements that their fundamental position is to disagree with the case that was presented to the court at the time that final orders were made.

15. The changes that they each rely on are as follows. M has told me that she is now in a better situation as her elder daughter, W, is no longer living with her. M said that she had made mistakes in the past, but said they were rectified before the care proceedings concluded. She said she thinks it is very unfair that the children were taken away from two loving parents; she said the children were not neglected; she told me the children were well loved and got everything they wanted. She enclosed two photographs of the boys to demonstrate her case that they were not neglected. The children appear happy and smiling in the photographs, but they go no further than to demonstrate a happy occasion.

16. F addressed me at some length. He repeatedly referred to the injustice of the earlier proceedings. Like M, F also disputes that the children were neglected or that the care provided to them was lacking. He set out in detail the circumstances in which he considers that the children had the best from their parents. He said they had the best clothes, the best meals and were taken to school and other appointments. He said the children were not neglected and never came to significant harm when the family was together.

17. F said that he wants now to ‘have a go [himself] to take the boys on’. He accepts that his accommodation would not be suitable in the longer term, but he has a flat which could, at least in the short term, accommodate the boys. He expects, as I would, that he would be provided with more suitable accommodation if the children were returned to his care.

18. F also referred in his letters and in his oral submissions today to complaints that he has made about the Local Authority’s management of the case. He referred to support that he believes he has from the complaints’ officer in relation to the mishandling of the case by the Local Authority. He told me that he has a letter which supports that, although he did not produce it. The Local Authority accepts that F has made complaints to the Local Authority, but does not accept that the complaints officer has offered support to F in his quest to have the children returned to his care as he asserted. There may be matters which the Local Authority has accepted could or should have been handled in a different way. It is, nonetheless, the case that the orders made by the court remain in force.

19. I have already made reference in outline to the test that the court must apply when considering an application for permission to oppose an adoption application. I turn to that in a little further detail before setting out my conclusions on the material as it is before me.

20. The district judge made placement orders pursuant to section 26 of the Adoption and Children Act 2002 in respect of A and B on 7^th May 2013. He dispensed with parental consent in accordance with section 52. Section 47 of the Act 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.

21. I make it clear that, in the application of these principles, I have taken account of the following matters. 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 in each case is for adoption, altering the boys’ legal status so that their relationships with their birth family are terminated. Such an order can only be made where it is both 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.

22. An application pursuant to section 47(5) of the 2002 Act is considered in two stages: first, has there been a change in circumstances; and, 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 the Court of Appeal held that the change of circumstances must be of a nature and degree sufficient on the facts of a particular case to reopen consideration of the issue. The change does not have to be significant. 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.

23. It is only if the first question is answered in the affirmative that the court proceeds to the second limb and addresses the welfare evaluation. The approach of the court to this welfare evaluation was considered 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: first, the parents’ ultimate prospect of success if leave is given; and, second, 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. Section 47(5) is intended to provide a real and meaningful remedy in an appropriate case.

24. I pause to record that the welfare consideration is in accordance with section 1 of the 2002 Act, so that the child’s welfare throughout his life is the court’s paramount consideration. The extended welfare checklist in section 1(4) of the Act must be applied, requiring the court to consider, amongst other factors, the impact on the child of ceasing to be a member of the birth family and becoming an adopted person; 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 a child’s needs; and the wishes and feelings of the birth family.

25. In Re W (A Child)) and Re H (A Child) [2013] EWCA Civ 1177 at paragraphs 20 to 23 the President further elaborated on the approach to the second stage, should that be required. The judge must consider and evaluate the parents’ ultimate prospects of success if given leave to oppose, the key issue being the parents’ prospect of success and whether it is more than fanciful or whether it has solidity. If the answer to that question is no, that is an end to the matter. Otherwise, the court proceeds to the evaluation of the prospects of success, remembering that the child’s welfare is paramount.

26. In the course of the judgment that I have given, I have identified the changes that each of the parents has relied upon in this case. What has been very clear to me throughout my involvement in these proceedings - at the hearing on 21^st August and the hearing before me today - is the strength of the parents’ belief that the proceedings in 2012 were unjustified and the orders made in May 2013 were made without any proper foundation. The threshold findings approved by the court when final orders were made provide a short summary of the wide-ranging evidence in the proceedings before the District Judge, which provided the evidential basis for the findings made. The court undertook a welfare evaluation and concluded that the Local Authority’s plans were appropriate and proportionate.

27. The changes each of the parents has identified are, in my judgment, very far short of the changes required to satisfy the test in Re P, so that the court should properly revisit the circumstances of the case. In each case, the parents’ circumstances are not substantially or materially different from those considered by the court at the time of the final hearing in April and May 2013. The fundamental objection of each of the parents is to the orders that were made in the first instance. I have reached a clear conclusion on the evidence as it is before me that the first limb of the test under section 47(5) has not been satisfied in this case. There is no sufficient change established by either M or by F to lead the court to the second stage welfare evaluation.

28. As is my practice in such cases, I do, nonetheless, address the second stage welfare analysis in brief, should it otherwise be concluded that the parents (or either of them) has, indeed, made out a sufficient change in circumstance. The basis upon which the care orders were made set out the wide-ranging shortcomings in the care afforded to each of the children. These are young children who have a pressing need for their welfare needs to be met well and consistently. They need security and stability throughout their childhood and beyond. Both parents seek the return of the children to their care. An application under section 47(5) does not consider the ultimate prospect of the return of a child to the parent’s care, but the prospects of success in opposing the adoption applications if permission were granted. There is, in my judgment, no solidity in either parent’s application. Looking to the welfare interests of each of the children, there is, in my judgment, an overwhelming argument against permission to oppose being granted. I therefore refuse the applications for permission to oppose in each case.

Following each of the parents indicating an intention to appeal

29. M and F have both indicated they intend to appeal my decision refusing them permission to oppose the adoption applications. I have considered the changes M and F assert they have made in the context of the relevant legal framework. I have concluded that there is an insufficient basis made out to satisfy the first limb of the test on an application for permission to oppose the adoptions and that the second limb, the welfare evaluation, would, in any event, argue strongly against permission to oppose the adoptions being granted. I see no reasonable basis upon which any appeal to the Court of Appeal will succeed. I therefore refuse permission to appeal. M and F can, of course, apply to the Court of Appeal for permission to appeal. I will complete N460 forms following the hearing, which must be submitted to the Court of Appeal with any appeal. The adoptions applications will not be listed for final hearing until the time for lodging an appeal, which is 21 days from today (and therefore 9^th October 2014), has expired.

30. I will direct an expedited transcript of this judgment at public expense. In accordance with the President’s transparency guidelines, the anonymised judgment will be published on BAILII.

[Judgment ends]

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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> W (Children : application for permission to oppose) [2014] EWFC B120 (18 September 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B120.html Cite as: [2014] EWFC B120

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