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	England and Wales Family Court Decisions (other Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (other Judges) >> PAM & PAF (Mr & Mrs PA) v South Gloucestershire Council (LA) & Ors [2014] EWFC B202 (28 October 2014) URL: http://www.bailii.org/ew/cases/EWFC/OJ/2014/B202.html Cite as: [2014] EWFC B202

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AND IN THE MATTER OF X

		28 October 2014

Preliminary Issue : Adoption Agency/Parental Responsibility
1. On 20th October 2014 I heard a preliminary issue argument in this case about who was the adoption agency and who had Parental Responsibility in this case as part of a directions hearing which listed this matter for a contested adoption in mid-November . I will set out a brief history of this complicated and highly emotionally charged case to provide some context for my judgment on the point.
2. The case concerns a little boy called X who is 5. He and his sister Y, who is now 9, were the subjects of care proceedings brought by the LA against the children's parents, who had mistreated the children in many ways and caused them significant harm. Care and Placement orders were made by a circuit judge at Bristol County Court in early 2012.
3. The LA approached a registered adoption society (AFC) regarding potential adopters and Mr and Mrs PA were proposed. The LA adoption panel met and supported Mr and Mrs PA and the two children were placed with them in the summer of 2012. Up to that point the two children had been in foster care for about 2 years. About 6 months later Y told PAM and PAF that she had been sexually abused while with her biological family. Assistance was given to Mr and Mrs PA about how to deal with this situation and a referral was made to CAMHS .
4. In December Y alleged to Mr and Mrs PA that she had sexually touched X from the time he was 6months old and subsequently she said she had also done this to other children at her school. The placement of Y with Mr and Mrs PA collapsed and she was removed to foster care (the circumstances of all of this are hotly disputed between the LA and Mr and Mrs PA) .
5. Mr and Mrs PA wish to adopt X and the LA oppose this so I have been dealing with the contested adoption which is listed for a final hearing, as I have said, in November.
6. At an advocates meeting in early October lawyers for Mr and Mrs PA raised the question of if LA were the adoption agency or if AFC were, within the meaning of S.25 ACA . This would have serious consequences both in this dispute and, if I do not make the adoption order here, after it, as AFC supports the Applicants' application to adopt X. It is accepted by all the parties that AFC is by virtue of Rule 14.3 of the FPR 2010 a respondent to the current proceedings by virtue of the fact that it is "an adoption agency which has taken part in the arrangements for adoption of the child".
7. When a placement order has been made as here, authorising an adoption agency to place the child for adoption , Parental Responsibility is shared between any parent with Parental Responsibility (not relevant here) , the adoption agency and the prospective adopters with whom the child is placed by virtue of s25(2) and (3) ACA 2002. Section 25 (2) provides that Parental Responsibility is given to the "agency concerned". That can be a local authority or a registered adoption society, both of which may be referred to as an "adoption agency".
8. It is argued that AFC are " the /an agency concerned in placing the child" (Mr Kean for the prospective adopters at paragraph 9 of his skeleton argument of 9/10/14).
9. What part did AFC actually play? The LA produced the child permanency report and the support plan. It was AFC who assessed Mr and Mrs PA, gave some practical social work support and it also jointly presented the Annex A Report. As I understand it they were asked to do this due to resource issues, i.e. this particular work was in effect "subcontracted" to AFC by the LA, a not unusual step in these cases, both according to AFC's Position Statement at paragraph 5 and in my experience as a judge. In the application for adoption they are identified as an agency "involved in placing the child" in addition to the LA.
10. After the placement AFC did provide support for the adopters but it is submitted on AFC's behalf that this again was subcontracting work to AFC by the LA in pursuance of its continuing responsibility for managing, overseeing and reviewing the child's progress until an adoption order is made.
11. In his well reasoned position statement for AFC (who support the making of an adoption order to the prospective adopters ) Mr Sharkey at 10 raises a number of points :

i. It is the LA who place the child for adoption, AFC only identify a number of possible adopters , it can not have been intended that such a task could confer Parental Responsibility on the adoption agency for doing that.

ii. The work on the Annex A and support for the family are done under s3(4) of the act and do not put it in the position of an adoption agency under s25(2).

iii. The LA have the authority to place under the placement order, it's the placement order that confers Parental Responsibility.

iv. The LA exercise of Parental Responsibility is subject to detailed regulation, there are no such provisions for adoption agencies.

v. Here one would have two adoption agencies LA and AFC who had Parental Responsibility for the same child and that could not be what was intended.

12. The argument put forward by the LA in effect says that it can not be the intention where for resources reasons the LA outsources some of its work that gives the same status (Parental Responsibility) to the subcontractor.
13. The Guardian takes a similar approach. See Ms Reed's document at paragraph 13. It urges me to take the view that Parental Responsibility is given not to any agency involved but THE agency concerned, which in this case is the agency that holds the Placement Order – here, this LA.
14. Having considered the various submissions it is quite clear to me that that is right : the prospect of adoption agencies being tangentially involved in the adoption and therefore acquiring Parental Responsibility can not be what was intended. All the surrounding legal circumstances and practical experience support that conclusion. No party apart from Mr and Mrs PA supports a contrary view and this proposition does not make logical or legal sense.
15. I therefore rule that the LA is the agency concerned and it has Parental Responsibility and AFC, though a party, does not have Parental Responsibility.
JUDGMENT – 5^th January 2015 Final Order
16. I heard this case for 10 days in late November and December and then had written final submissions from all 4 advocates and will hand down this written judgment on 5th January 2015.
17. The case was an application by Mr and Mrs PA to adopt X now over 5years old and has been placed for adoption with Mr and Mrs PA for over 2 years when he was nearly three years old. The application is opposed by the 1st Respondent, South Gloucestershire Council, and by X's Guardian (CG) the 2nd Respondent, but supported by Action for Children (AFC) the adoption agency involved by South Gloucestershire Council in the placement. All 4 parties were represented by skilled family specialist advocates and I thank them all for the assistance they have given me in the course of this very emotionally charged hearing. Throughout this judgment I will refer to the parties as Mr and Mrs PA or PAM and PAF, the LA, CG and AFC respectively. In this judgment I will set out the complicated factual background, then deal with the law, then examine the evidence that I have heard and finally come to my findings and rule on the issue of whether X should be adopted by Mr and Mrs PA or as suggested by the LA and supported by CG, that placement should be brought to an end in a matter of days and X should be offered for adoption by another family if one can be found.

THE BACKGROUND.

Pre Care Order

18. X's biological parents are M and F. X has a half sibling Y (who was born in 2005, her father is F2 . Concerns were expressed about Y's safety with F2's father, H. Thereafter the LA chronology and supporting papers show the relationship between M and F2 as one characterised by mental health issues, attempted suicides on F2's part, domestic violence and great concerns about both parents' parenting capacities, there is also a continuing theme of who will protect Y. By October 2007 her parents are separated and there are concerns being expressed about Ms then partners sexual behaviour. In March 2009 M has a new partner, F, and a Specific Issue order is made banning him from contact with Y because of allegations that he has behaved sexually inappropriately in her presence. In private law proceedings an order is made after a section 37 report from the LA that Y lives with her M and F2 on a shared care basis. There is then an agreement made with LA by M that Y should not have a supervised contact with F who has, by this time, been the subject of a finding of fact Judgment from another Court that he is in a pool of perpetrators, one of whom caused non-accidental injuries to a child from another relationship. By this time M is pregnant with X and F is the father. More sexually inappropriate behaviour by F in Y's presence is now alleged. X is made the subject of a Safeguarding Plan as is Y. X is born and three months later X is found by his GP to have unexplained injuries to his head and a subsequent investigation reveals a fractured skull. Thereafter both children are made the subjects of Interim Care Orders and placed in December 2009 . At a hearing in November both X's parents were identified as possible perpetrators of the very serious non- accidental injuries he had by the time X was three months old. A subsequent parental assessment of M showed grave concerns about her ability to safely parent the children (hardly surprising given the history I have set out and the findings of the court ) and after a search for a family placement proved fruitless a full Care Order was made on each child on the basis of a care plan for Adoption and a Placement Order 20 months after the first ICO.
19. After a couple of interim placements the two children were placed with very experienced foster carers (FC) who had 3 children of their own.
20. I have spent so long outlining the events that lead to the care orders on X and Y because of the effect those events will have had on them and the very obviously different life experiences of the two children. Y was over 4 years old when taken into care. She had been brought up in a household where there were multiple volatile relationships and repeated allegations of domestic violence, where there was a running theme of at best lack of sexual boundaries and possibly a lot worse , where her mother had been assessed as unable to keep her safe, these events must have left her with serious issues about attachment and personality development , she was then very well cared for by her foster cares for 2 years 3 months then moved to Mr and Mrs PA's household. X had been at home for 3 months before he suffered major physical harm and was removed to a very caring and supportive foster home prior to a move to adopters. The 2 children as half siblings had very different life experiences, they had very different ages , at placement Y was over 6 years old and X nearly 3 years old yet the LA never even considered if separate placements were necessary . I was told during the course of the evidence that no consideration had been given to this issue at all. I have of course the benefit of hindsight but on the facts as known to the LA I would at least have expected a debate on the issue but in particular the impact of the two children's very different needs and life experiences on a single adoptive placement does not seem to have been considered at all. When I mentioned this to Mrs Wenban-Smith (JWS), the jointly instructed expert, she agreed it was an oversight and commented that was particularly so since the matching process between Mr and Mrs PA and the children was so short, 40 days between matching panel and the move with the children and only 12 days between first meeting and placement. I don't know if that is short period or not in general but I wonder if there was sufficient time given the complexity of these children and Y in particular. At the breakdown of adoption meeting notes at F57 the comment is made that the adoption had to be speedy because the care process had taken so long. The social workers from AFC made the comment that the nature of the background only became apparent after careful scrutiny of the files after placement had taken place. It may also be that the true picture of Y's emotional needs had not emerged in the foster carer's busy household (see F52).

The Prospective Adopters

21. It is fair to say that Mr and Mrs PA present as a couple with both strengths and weaknesses. PAM is someone who had attachment issues of her own as a child and also eating disorder problems. PAF has had work related stress and described to me how on one occasion due to a serious incident at work he could not deal with child care advice he was being given by a social worker because he just could not take it in. They have as a couple had infertility issues over the marriage hence the adoption. At G199 they point out that they are aware that children placed through AFC are likely to be older and to have experienced neglect and physical, emotional and possibly sexual abuse. They go on in this report to admit they would find a highly traumatised and sexualised child too distressing for them. However it is important to remind one's self that they passed all the intensive assessments that adoptive parents are subject to.

The Placement of the Children with Mr and Mrs PA

22. The actual move to Mr and Mrs PA was a disaster in terms of organisation. I have heard in detail of the party the foster parents threw the children when they left, with foster family, relatives and friends attending and the protracted and emotional goodbyes and that the children cried for a couple of hours afterwards in Mr and Mrs PA's car on the way home and at home. This very difficult start got worse from then on mainly as a result of Y's behaviour.
23. At this point I will summarise it as very disruptive, with physical aggression, great distress, temper tantrums, anger, anxiety - all in all very challenging behaviour and at the same time desperate vulnerability and emotional neediness. The position with X was easier although at times there were temper tantrums from him as well. The social workers who gave evidence all accepted the extreme behaviour of Y at this time. As a result of this they turned to expert advice from Dr Vicky Sutton (VS) a chartered clinical Psychologist who reported for the LA in April 2013. Her report can be found at E3 of the bundle. In the middle of the preparation of the report Y began, according to Mr and Mrs PA, to make allegations about being a victim of sexual abuse from X's father, F, and later by her own mother. The process of police ABE interviewing then began. X was said at this time to present as a much easier child to parent and observed to have a good bond with Mr and Mrs PA, see for example E21 after an observed contact "both parents were extremely warm and nurturing towards X and he reciprocated those feelings". On the other hand see the comments about the much more complex and nuanced relationship with Y at 5.1.17 for example.
24. VS's general views were supportive of Mr and Mrs PA seeing them as empathetic to, and supportive of, the children and of each other. At 8/5/4 on E35 the adoption is supported by VS who goes on to say this "given the severity and chronicity of Y's abuse (perpetuated by all significant attachment figures leaving her with no sense of safety or security) I feel her needs are particularly complex and warrant a very high level resource (there is a very concerning point here in the description of Y by a qualified professional who has met her echoing the description Mr and Mrs PA gave of precisely the sort of child they could not parent). The suggestion is for 12 sessions of Dyadic Development Therapy funded by the LA. In fact, the LA had previously tried CAMHS therapy but it had been abandoned earlier because Y was not settled enough for it. The report was filed on 9/4/13 with the LA responding to VS on 2/5/13 in a very, I can only use the word, aggressive short letter challenging their own experts methods and conclusions and demanding a meeting with VS. A strange response, since at the LAC meeting on 23/4/13, the recommendation for DDP is said to be "broadly embraced", although the point is made that therapy would need to be more than just 12 sessions. There would need to be an ongoing long term commitment to support the family "if the LA wish for the placement to continue", was the view expressed. VS replies with an addendum report on 3/5/13 answering the questions asked and defending her recommendations. In fact I was told that the main reason behind the refusal to accept the recommendations was the cost of therapy because the LA took the view that that they would be going into an expensive open ended commitment. In substitution for VS's proposal CAMHS is suggested. A referral was made to CAMHS in April 2013 but "lost in the system" and another was made in June and finally there was there was an appointment in September when PAM was described as "brittle" and Y was said to be in need of individual work. There was then a change of social worker and nothing else happened about therapy.
25. On the 1st December 2013 Y alleged to PAM that she, Y, had sexually abused X by inappropriately touching him (I will set out the details of the circumstances of this later). She then went on to say that she had also touched other children at her school. Thereafter the position rapidly deteriorated and on 5th December Mr and Mrs PA told a LAC review they could not keep X safe. They had spoken to VS and it was her view the placement was untenable, AFC could not put forward a safety plan and Mr and Mrs PA asked for Y to be removed. She left the house of Mr and Mrs PA to foster carer on 10/12/13.

The History of the Adoption Application

26. Mr and Mrs PA applied to adopt both children on 15th August 2013. In due course of time the placement collapsed and the LA who had originally supported adoption for both children were now reconsidering the position not just on Y but X as well.
27. A series of Directions Orders joined the children and got them represented, got a jointly instructed expert involved in JWS. Then the birth mother (M) applied to be joined as a party in the adoption and then subsequently notified the court that she wanted to withdraw her application for leave in X's case. The LA then applied to revoke the placement Order for Y and that has happened. Subsequently I was asked to rule on AFC's position and by consent made them a party in these proceedings. I have thereafter heard evidence over 10 days from the following witnesses; Mr and Mrs PA , 2 LA social workers, Rhian Farley (RF) and Kate Baxter (KB), two social workers from AFC, Julie Hook (JH) and Ann Marie Webber (AMW), VS , JWS and Siobhan Donovan (CG). Most of these witnesses spent a half day to a day in the witness box, some longer. I have one issue to decide, should I make an Adoption Order in respect of X to Mr and Mrs PA or not? The evidence in this case is more polarised than is usual in a family case, with Mr and Mrs PA, VS and the two social workers from AFC strongly in favour of adoption and the social workers from the LA, JWS and CG being strongly (save in JWS's evidence there is some equivocation) against the adoption . It is perhaps a trite comment but having read and heard so much evidence I feel I am in a much better position to decide between these entrenched positions now and that the actual trial process, examination and cross-examination has worked in this case .

The Law

28. I have read the various skeleton arguments, position statements and closing submissions filed in this case and I do not propose to set those out a great length, it seems to me the position here is fairly clear.
29. Firstly, the prospective adopters are the applicants, it's their case to make out, they have to satisfy me on the balance of probabilities that, every party agreeing that adoption is in X's best interests, they are the right adopters for this particular child and that they are able to meet his needs in the long term (see O v Coventry CC (2012)1FLR 302).
30. The statute says at section 1(6): In coming to a decision relating to the adoption of a child a court must always consider the whole range of powers available to it in the child's case whether under this act or the Children Act 1989 the court must not make any order under this act unless it considers that making this order would be better for the child then not doing so (Adoption and Children Act 2002). The test is therefore that I must not order the adoption of this particular child by these adopters unless I find that doing so is better for him than not doing so and I must be convinced of that on the balance of probabilities. Recently Mr Justice Holman has made it clear that this was the correct approach, so for example if the factors for and against a particular adoption are evenly balanced it is not possible to say that making the order is better for the child so I must not make it. I must consider X's best interests and his welfare throughout his life in the light of all the circumstances of the case including in particular all those factors in the enhanced welfare check list as set out in s1(4)of the ACA2002. It is also clear that Mr and Mrs PA and X are a "family" and as such have acquired a right to a family life together though I can extinguish that family life if I think such a step is proportionate as being in X 's best interests as his welfare is my primary consideration.

The Issues

31. Given that every party to this application agrees that adoption is in X's best interests and he appears to be thriving, stable and well cared for with Mr and Mrs PA at first blush it is difficult to understand how continuing the placement where he has now been for 2 years and 4 months as his "forever family" by an adoption order cannot be in his best interests for the rest of his life.
32. The LA and CG and the jointly instructed expert, JWS, say that the way Mr and Mrs PA dealt with the breakdown of Y's placement is a predictor of how they will behave if there is a crisis with X at any time in the next 13 years and also an indicator of how they would manage contact between X and Y in the future. There is also a great deal of concern expressed about how they handled the issues around the breakdown of the placement of Y and explaining it to X in the future. To varying degrees they conceded that X will suffer some harm if removed from his home now but they are all convinced that the damage he will suffer with Mr and Mrs PA will be worse. JWS, who on balance supports removal, says "it is difficult (from a psychological perspective) to make a clear choice between the options for X - cumulative harm over time with Mr and Mrs PA or the immediate and long term harm of removal and an unsettled future" (E319). That is the choice the court is being asked to make. In order to consider this issue it is necessary for me to assess the risks of each course of action, see if those risks can be diminished or managed, and then consider which is the more risky course for X.

The Breakdown of the Placement of Y with Mr and Mrs PA

33. After hearing all the evidence I come to the following conclusions on this issue. First I strongly criticise the LA for its failure to analyse if such a placement of Y with her brother was appropriate to start with. There is a perfectly respectable argument here that this lack of analysis lead to Mr and Mrs PA being asked to do an impossible job. Secondly, I am even more critical of the LA for failing to put the therapeutic resources in place that their own commissioned expert (VS) recommended and further lamentably failing in even putting in place the alternative strategy for therapy via CAMHS.
34. I take into account the stresses that the adopters were under from the start. Due to the mishandled handover they did not have even the normal honeymoon period most adopters are reckoned to have. Instead they were plunged in at the deep end with the children's emotional crisis, and this continued more or less without stop as far as Y was concerned, for about 14 months. During that time Y disclosed to PAM that she had been sexually abused, PAM had a miscarriage, PAF had a period of very high stress at work, they had to deal with the difficulties around the birth of E the second child of the biological mother and F born after the children were placed with Mr and Mrs PA and removed into care at birth, and then Y disclosed the abuse of her brother and other children (I will deal with these allegations in more detail in a moment). It was the view of VS at the time she was contacted by Mr and Mrs PA that the placement of Y with them could not continue. Mr and Mrs PA's view was that they could not carry on so Y would have to leave. In evidence they both told me they felt saturated by this stage i.e. exhausted. The disruption meeting came to the conclusion that the placement broke down for a number of reasons. I agree. I think one can criticise Mr and Mrs PA for the speed of the departure and for some of the micromanagement of the children but, in retrospect, the decision to end the placement is no surprise. Both Mr and Mrs PA made it clear in their evidence that they feel racked with guilt about the breakdown and understand the pain caused to Y over it and I believe that evidence. The real question I need to consider is how much these events inform me about their behaviour in any future crisis of whatever nature concerning X. I will return to that issue later in this judgment.

The Issue of Y's Sexual Abuse Allegations.

35. I need to deal with the sexual abuse allegations as they developed and set them into context.
36. The first point that needs to be made is as was said often by various advocates and witnesses in the course of the hearing, the truth of what, if anything, happened will never be established. I agree with that and it is to be noted that I am not asked to make, nor am I in a position to make, any findings about the truth about any of Y's allegations. In particular the allegations that Y makes against herself are ones that I cannot draw any conclusions about. PAM's account of the incident with X's hand being injured in the door and then Y making the apparent admissions about inappropriately touching him and then other children is something I can only make the most general findings about. She made allegations and repeated them but what the exact circumstances were, if they were true, and if not why she said those things, nor the manner in which she said them and what, if any, part PAM had in the process are matters that I cannot make findings on. Nor can I make findings about the withdrawal of these allegations when Y was at the foster parents. In particular I cannot make findings about the allegations Y has made about PAM persistently questioning her and in effect forcing her to give false particulars of events that had not happened. I am not effected one way or the other by the "investigation" of the other children allegedly involved. It is said their parents were asked if the children had said or shown any behaviour to indicate if this had happened and said no. I am not clear if any of the children themselves were asked, certainly PAF is very critical of the lack of rigour in the investigation by the LA. I have not heard evidence on this as it has never been anyone's case that I should make findings, which would have been an impossible task in any event.
37. It needs to be recognised that that is a point which cuts both ways. Y could just as well be telling the truth about her past abuse by her family and her sexualised behaviour with X and others as she could be about her withdrawal of the accusations and the circumstances in which she says the were made now. It is necessary to look at the picture as it developed to provide context for the behaviour of Mr and Mrs PA in particular. Firstly, as I have set out, there is a lot of material which suggests that while Y was living with her mother she came to some sort of sexual harm. The background of complaints and cross accusations suggests that at best people behaved inappropriately in the presence of this, at that time very young girl, and perhaps she came to some sort of sexual harm. There are then accounts of her sexualised behaviour at the foster placement (see F50, 51, 81, C119, C140-143) and the warnings by the community paediatrician that she might make disclosures to the adoptive parents at G66. These were expanded on by VS (E20) and (E78) including raising the issue of Y possibly behaving inappropriately with other children. After the first set of allegations were made Y was ABE interviewed and although I have not seen those interviews after that members of the birth family were charged. The prosecution, entirely dependent as it was on Y, did not go ahead but the charges have never been withdrawn nor has Y ever withdrawn her allegations. Indeed she is still talking about the abuse and giving further circumstantial detail recently to her foster careers. Thereafter X confirmed that Y had been touching him according to Mr and Mrs PA. At the time that Y left therefore there is a very powerful narrative thread the effect of which would have been to carry Mr and Mrs PA into the realm of believing what Y had said. The position is of course made much more complex by Y's withdrawal of her allegations first about touching other children, then about touching X.
38. Mr and Mrs PA were asked several times in cross examination what their view was now. They said they were uncertain now and they were probed about how and when they had come to this point. The inference behind the cross-examination was that having read JWS's view, put in her evidence as "there should have come a point when they were asking themselves could we really believe this of Y and if it's happening to X why have we not known about it?", they were now trimming their position to tell me what they thought I would want to hear. CG gave evidence that at her visit in July she saw no evidence of change of view. PAM told me it had been a gradual process over a few months, starting with the retractions. PAF's evidence was that he had reached a point of uncertainty earlier but was defensive about admitting this. It is clear from their own evidence that both of them had only started to tell X that they were uncertain about what had happened in October /November. I have been greatly assisted in this area by the very careful analysis by Miss Reed in paragraphs 66 to 79 of her closing submissions.
39. After considering the evidence I make the following findings on Mr and Mrs PA's response to the accusations made by Y.
40. First, I understand that the narrative was compelling. As JWS said "it confirmed their worst fears, I think it was a kind of culmination of all their anxieties and increasing concerns about Y."
41. Second, having acted on it by asking for Y to leave, Mr and Mrs PA had a considerable personal investment in continuing to believe it was true. It would have been very difficult to face up to having inflicted the pain of having to leave on Y on the basis of something which might not be true.
42. Third, I think it took longer for Mr and Mrs PA to pull back to a position of uncertainty than they were prepared to admit. I think this only really happened in about October and it was a very gradual process.
43. However, that makes their evidence about where they are on this issue now more believable to me. I have encountered very few "road to Damascus" moments but many, many gradual realisations that "we might be wrong" on a particular issue in some 39 years practise at the bar and sitting as a judge. Having seen these two witnesses I come firmly to the conclusion that they have undergone a slow, painful evolution of their views and they are both now uncertain as to what really happened and, if X stays with them, that is the difficult message they will, with expert help, be able to transmit to X .
44. I am sorry to say that I find the LA position on the issue of the disclosures both inexplicable in its content and its evolution. They seem to have moved into a position where they think Mr and Mrs PA were wholly at fault for the breakdown of the placement and further that Y was pressured into making allegations against other children. This was clearly the case from the social workers' evidence to me. It goes further than that though; in the letter of instruction to JWS the LA's view on the sexual abuse allegations against family members is clearly set out.

"Y made a number of allegations in February 2013 that she had been sexually abused by her mother, father, and X's father . These relate to a period before she had been placed in foster care in 2009. This was the first time that she had made such allegations. The LA were concerned whether Y would have had the ability to recollect the detail of the incidents she was originally recalling when they would have occurred when she was age approximately three years old".

The inference behind this is clear, and became clearer during the course of the hearing, that Mr and Mrs PA set this process up in some way. Leaving aside that the LA were still supporting the adoption of Y by Mr and Mrs PA until she left so, presumably did not form this view of the disclosures about the family until at least 9 months after Y said what she has said, it also seems to fly in the face of the LA's mantra about believing the child. The stated ground about her not remembering things from when she was 3 is naive and not supported by experience. I find it extraordinary that the LA prefer to believe that Mr and Mrs PA somehow set this up than that, given the family history, Y is telling the truth. It is, I think evidence of how clouded their views on anything to do with Mr and Mrs PA is because of the anger they feel both corporately and individually to them on Y's behalf for bringing the placement to an end and I will return to that issue later in this judgment.

Mr and Mrs PA's Relationship With Y

45. It is clear from the evidence that Mr and Mrs PA had a complex and fraught relationship with Y throughout the placement. The position is summarised in AMW's evidence "Mr and Mrs PA experienced difficulties in trying to meet the needs of two very different children who had experienced very different trauma within the birth family. They struggled with the complexities of Y's behaviour and felt at a loss when thinking about how to support her" (C180). Both she and the other worker from AFC, JH, make the point that only gradually did they appreciate how complex and challenging Y was and that the LA never accepted this. I accept Mr and Mrs PA loved her and fought hard, for example, for her to get therapeutic help, but I also think they found it impossible to give the same unconditional love to her that they gave and continue to give to X. This was particularly so after she made the allegations of touching X. I agree with the very perceptive analysis of the situation after the allegations by JH at 4.4 on page C216. You have the different relationship then the disclosure about harming X and I can see then that Mr and Mrs PA at times characterised Y as a perpetrator of abuse rather than a victim. I think this is reflected in the allegation that they pathologised Y and, in effect, treated her as though the whole situation was her fault, demonising her. I am sure there were times when Mr and Mrs PA were unable to see things from her prospective, critical of her and negative about her. However, I do not find that this was demonising her or thinking of her as their adversary. In her evidence JWS was asked about this and said of Y's behaviour "inevitably it took its toll, showing in negative perceptions of Y. I don't doubt they loved her very much but their behaviour did not operationalise that love".
46. "They could not see her as the child she was". As an analysis of the situation I understand this but I have no idea what Mr and Mrs PA could have done in the emotional maelstrom they were caught up in to "operationalise" their love. I am sorry to say that the criticisms by the LA, CG, and to a lesser extent, JWS, seem to have moved out of the real world into some platonic ideal of parenthood that is arguably unachievable by any parent in the situation Mr and Mrs PA found themselves in.
47. I need to deal with some of the comments the children have made, many of which are coached in more adult language than one might expect. I heard a lot of evidence about this and do not intend to deal with it in detail. There are many possible contributors to this, Y's adult turn of phrase and her extended contact with the social services and therapy, her experiences at home and in care and her talking to X in these terms for example. However it is also clear to me that some of these phrases came from Mr and Mrs PA, not deliberately but inadvertently saying things either when they thought the children could not hear or even in front of the children when they thought they could not understand. I think one of the problems they had was their complete lack of experience of caring for children, that lack of direct experience of the child recycling to you, or someone else, something that you did not realise they had heard or even been in a position to hear. This would have been extenuated by both Y's character and the long on going crisis they found themselves in. I find that they are the inadvertent source of some of the things the children have said. I also find that the situation they were in is mitigation for this and this aspect of the case plays no significant part in my decision.
48. I turn now to the current position with Y and the key questions, if X stayed with them would the support contact and how will they explain the past, in particular the issue of why Y left, to X.
49. The continuing of a relationship between X and Y is agreed to be very important to him. As JWS says, they had a close relationship; it needs to continue for identity purposes, for X to understand who he is and also for him to get a real picture of who she is. At present they have a pleasant, boisterous, active, physical relationship and share and enjoy their time together. The best evidence about if they would support contact is how Mr and Mrs PA have dealt with contact up to now. Again I do not propose to go over the evidence in detail but broadly contact has been taking place on a regular basis. Mr and Mrs PA have been facilitating it and indeed their suggestion that it should take place outside the foster carers home actually enhanced its quality. They don't attend the contact on the request of the LA but have taken X to and from contact. In November 2014 when the LA had failed to arrange contact for 4 weeks (it is supposed to be every 2 weeks), they contacted the contact supervisor to arrange contact and then rearranged their own schedule to ensure it took place. I found the evidence of KB for the LA on this point, where she was criticising Mr and Mrs PA for saying that it would involve rearranging X's karate class, frankly ridiculous. She even at one point seemed to be going near to alleging this rearranging of contact was some kind of device to impress the court rather than reflecting on the failure of the LA to facilitate contact for 4 weeks. In her report at C41, JWS says that Mr and Mrs PA "would not commit to contact between X and Y in the future". I can see no evidential basis for that view whatsoever, in fact the evidence suggests the contrary. See for example JH's views that she accepted Mr and Mrs PA knew how important contact was to X and how they had persuaded him to attend on occasions. Her expressed view was she had no concerns about not keeping up contact and neither do I. I find that if X stays with Mr and Mrs PA they a) understand the importance of the relationship being maintained, and, b) would maintain it. I am convinced they would do this without an order but am doubly convinced having seen them in the witness box that they would obey an Order of the court for contact.
50. What about what they would tell X about his sister and why she left? I think this is a very difficult area where Mr and Mrs PA, or any other adopter, will need a great deal of help.
51. Mr and Mrs PA say they will accept that help and want it. There is also a very difficult issue about the birth family and what to say about them. On the one hand the LA seem to want a "positive picture" of the birth family given on the other hand VS says this would actually be damaging because of the harm X suffered as a result of their actions. This area will be another real problem for anyone who looks after X in the future.
52. An unusual aspect of this case is the failure of the LA to hand over to Mr and Mrs PA all the material they have to support life story work for X. There is said to be a box of material including family photos and so on which the LA have and AFC confirm the existence of, but which, in her evidence, KB did not seem to know existed despite repeated requests for it and a copy of Y's life story book to be sent to Mr and Mrs PA. One wonders why this has not happened over all the two and a half years of X being with them.

The LA's approach to the Case.

53. I have been very concerned about the extremely adversarial approach to this case taken by the LA.
54. Examples of this range from the point about contact I have set out above to the criticism of Mr and Mrs PA contacting VS in the crisis of December 2013. I was even told by one of the LA witnesses that the disruption meeting notes, which show an even handed approach to the issues did not reflect the real (i.e. critical of Mr and Mrs PA) content of the meeting. I think that this all comes from the anger the LA feel about the collapse of the placement. This is only too apparent to me when listening to the LA witnesses. JWS says "the anger of those who care for Y at her treatment by PAM and PAF is understandable". I am afraid it is not, first as JWS conceded to me, because it clouds professional judgment and, second, on a careful analysis of the circumstances of the collapse of the placement you realise, as was said at the disruption meeting, that the crisis had many causes, some of which lead to the door of Mr and Mrs PA, some of which lead to the LA but most of which were rooted in events that neither Mr and Mrs PA nor the LA were responsible for (see in particular F95 to F97). All these points are relevant but the general conclusion "this placement disruption occurred as a result of not one event failing or action but the cumulative effect of the above which may have been mitigated had there been adequate assessment of the children's needs and robust assessment and response regarding duty of care to the children."

The Evidence of Mr and Mrs PA

55. I have already commented on a number of areas of Mr and Mrs PA's evidence but I think I should make some observations about their presentation to me as witnesses. It is very easy to lump the two of them together but it is clear that they are two very different people. PAF is a more reflective and detached character, PAM is the one who exhibits more emotion. They have both been through an incredibly difficult process in this case and before it, some two and a half years of crisis with regard to this adoption placement. That they are still together and functioning says a great deal about them and their relationship and trite remarks like "one doesn't know what goes on behind closed doors" must be outweighed by a vast predominance of the evidence which is of a united couple who unconditionally love X. JH made the comment "he loves them, they love him, they would die for their child". I am very familiar with cases in which the comment love is not enough is appropriate, those are cases where people are struggling against personality traits, disadvantages or deficits in their behaviour. Here the only thing that can really be said against Mr and Mrs PA is that they were at least partially responsible for Y leaving, that is right but the situation was very complex. Their performance in the witness box has to be seen within the context of the desperate fear that they both have that X will be removed. Defensive comments and even prevarication are understandable in those circumstances, it is much better to look at what they actually did with regard to Y and what they are continuing to do with regard to X and the place to look for that is in the evidence of the other witnesses. I will now turn to assess their evidence.

The Evidence of VS

56. VS is not a jointly instructed expert in this case but she is a person with expertise and the court needs to remind itself she was the person the LA turned to for help after the initial difficulties in the placement and the first disclosures of sexual abuse by Y against her family. As such her picture of Mr and Mrs PA needs to be taken into account and also the fact that they will have listened carefully to her advice. After meeting with Mr and Mrs PA, VS comments on their natural and intuitive understanding of the children (E10), the extreme nature of some of the behaviour of Y, the impact on them of the sexual abuse allegations against the birth family by Y. There is an observed contact and both PAM and PAF are observed to be warm and nurturing to X while Y is at school. The situation with Y is then seen as obviously more complex and the conclusions VS comes to about Y can be found at 6.1.3 E23 onwards.
57. VS concludes that Mr and Mrs PA are empathetic and work together, but that they need therapeutic support. Her second report is a response to the questions put by the LA about her method and conclusions. She gives her view that Y presents with a diagnosis of Complex Developmental Trauma and explains this. She finds no evidence of Mr and Mrs PA pathologising Y's behaviour nor of any testing evidence to conclude they are exaggerating Y's behaviour. She finds nothing in the account of that behaviour which would not be consistent with Y's life experience so far. Working through the list of LA questions one asks one's self; if the LA had such serious concerns about Mr and Mrs PA why nothing was done about the placement for some seven months thereafter and why they were initially supporting the adoption? In her oral evidence, VS, said how negative the LA were about Mr and Mrs PA. She maintained that there was nothing to suggest they had pathologised Y "the context of the sexual abuse here means they are not turning something that is not an illness into an illness". X should develop a secure attachment to the adopters, he was much less complex. When she was consulted again in December it was her clear view the placement of Y with Mr and Mrs PA was impossible to continue. I have to say that I found the picture of Mr and Mrs PA trying to maintain the placement and finally being overwhelmed by the allegations of abuse of X to be consistent with their evidence. I also was reminded again of what different child to Y X is and what a different relationship he has with Mr and Mrs PA.

The Evidence of JWS

58. The evidence of JWS appeared to endorse a move unless safeguards like shared parental responsibility were in place, yet there were many positives acknowledged in the placement and many problems in a move. After dealing with his improved speech, his thriving at school and so on she said "he is with his forever family, not suffering any harm, happy and stable. Very little could be said to him to make sense of a move - It would be a difficult thing for him to understand. It would be a life changing event". However, the choice they made to terminate the placement reflected on them and their ability to empathise with Y. Their behaviour did not demonstrate love for Y "I am not saying such a child would be easy to care for but she was seen increasingly as the problem not a child who needs to be cared for." "They were describing her as an aggressive sexual predator. It was on that basis they asked for her to be removed". The clash here between this characterisation of the removal and the view of the Disruption Meeting and of VS could not be clearer and I have to make a finding about this. It seems to me on the totality of the evidence on this issue that the reality of what happened is much more complex and closer to the conclusions of the Disruption Meeting and VS's views and that Mr and Mrs PA did not exclude her because they thought of her as a sexual predator.
59. JWS clearly sets out her concerns about X at E317:

Known predictable risks:

Loss of relationship with Y because Mr and Mrs PA will not promote contact - I have made a finding against that already and I was surprised that JWS said she was unaffected by the evidence of AFC on this issue.

Reinforcement of Y as having abused him - I have found that Mr and Mrs PA have changed their view of the certainty of this.

Age inappropriate information about his birth family - no evidence to support this.

Exposure to emotional pressure by PAM as described by Y's retraction - there is no finding that the retraction is either true or false so it is wrong to use the account in the retraction as a foundation for this supposition.

Harm due to PAM's inability to identify and tolerate age appropriate behaviour leading to over controlling reactions - I don't see what the evidence basis is for this.

Inability to accept X for what he is, including his birth family and his relationship with Y - this is contradicted by much of the behaviour of Mr and Mrs PA both before and since the separation again see for example the AFC evidence.

Blame and rejection should X show disturbed or challenging behaviour - I will deal with this when analysing the risks of harm in the adoption check list.

Emotional harm from having to conform and intolerance of his independent prospective - I will also consider this in the framework of the welfare check list.

60. In her evidence in chief JWS was dealing with the impact of adoption break down in the context of Y. Her evidence is at page 7 of the agreed note, she talks about subsequent problems of coping and adjustment and of how damaging the breakdown in what you think of as your forever home is. I asked her was that not the order I was being asked by the LA to sanction in X's case? She said "it is except it's not a breakdown in the sense of a placement crisis disruption but it is the ending of his adoptive placement" and in both her written and oral evidence she very fairly accepted the immediate and long term harm of removal and an unsettled future.

The Evidence of AFC

61. This detailed and careful evidence was not available to JWS or to the CG before they submitted their reports. JH, a very experienced adoption social worker, gave evidence about what was happening on the ground during the time of the placement of Y with Mr and Mrs PA and afterwards. Her evidence was that Mr and Mrs PA were highly stressed and Y was a very traumatised little girl. Her strong view was therapeutic intervention was needed early in the placement. She recognised the difficulties and the deficits Mr and Mrs PA had in trying to parent Y and was critical of some of their actions but she was also critical of the lack of a good over-view and grasp of the care history of Y from the LA. I don't propose to examine this evidence at length but there is a helpful summary of it at 7 and 8 of the closing submissions of AFC, which I adopt. The view of this very impressive and forthright witness was that the way Mr and Mrs PA handled the breakdown of the placement was not in Y's best interest, but that her leaving was inevitable. She commented that they had tried their best and many other families would have "thrown in the towel much sooner". This evidence is very supportive of the Disruption Meeting/VS conclusion on the breakdown of the placement rather than the LA/JWS approach to this issue.
62. In her evidence she goes on to say she thinks Mr and Mrs PA are already acting as therapeutic parents for X and would be able to support X's understanding of his birth parents, see 5.3 and 5.4 on C218/9. This powerful and independent evidence does not seem to carry any weight at all with the LA. In her conclusions this witness talks about how much Mr and Mrs PA will have learned from December 2013 to today. She also reports the evidence of unconditional love for X that she has seen from them and the healthy and close attachment they have to each other. She accepts there is no risk-free option but points out that this is always so in adoptions and endorses an adoption order in this case. She then goes on to point out the fact that he would suffer "significant emotional trauma should he be moved from their care" with a long lasting effect on his ability to form trusting relationships in the future. "It is difficult to know how a child of his age would make sense of this decision and what explanation could be given to him".
63. The other social worker from AFC, AMW, gave evidence of the current position in the placement. In her evidence, having observed the relationship between Mr and Mrs PA and X, it was her view, as it was JH's that, if there were difficulties encountered in the future, a scenario which she thought probable, Mr and Mrs PA would not reject X, "from what I have seen and observed they love him unconditionally. There is always a level of uncertainty when adopted children reach various stages of transition and development but their bond and the length of time there has been a secure attachment equals them being able to deal with these issues". On the question of the impact of removal her views were clear "he would be devastated. I think given the strong bond it would be difficult for him to understand irrespective of the explanation given. In the long term his ability to form attachments would be extremely impaired". The point was put in cross examination that given his secure attachment would he not be able to transfer that to new carers, "there has been a great expectation on X to trust Mr and Mrs PA. Although there is evidence that if a child has had good experiences he has the ability to transfer the ability, to keep transferring it on multiple occasions is impaired". It seems to me that X has had 2 and a half years of Mr and Mrs PA being his forever family and the impact of removal would be devastating on him both short and long term. That is a point that AFC and VS agree on, and so in her evidence does JWS. The prospects for a future adoption placement being found and succeeding were "not impossible but he suffered from trauma in birth family, loss of his sister, his age --- these factors make it very difficult to find the right adoptive parents for him in the future". I know from my own case by case experience that finding an adoptive home for a child of X's age is very difficult, though I note the LA have had one interested party so far and even if an adopter is found one has to ask one's self what are the realistic chances of an adoption being a success?
64. I found the evidence of these two ladies, coached in even-handed terms and borne out of both their, and AFC's collective experience, compelling.

The CG's Evidence.

65. The CG made a recommendation in her report to refuse an adoption order in this case, after reading all the new evidence, the Disruption Meeting Report, and hearing most of the witnesses she maintained that position in her oral evidence. She said:

"as of today my recommendation remains the same, the risks outweigh the benefits -- it is a very finely balanced case but I also consider the risks to X's safety if you make an adoption order".

66. I am very conscious of the fact that rejection of this recommendation would be a very serious step for a judge to take, particularly after it is so obvious in her evidence that the she has agonised over the case to the extent of saying that it was the most difficult case she had done and that she consulted with her colleagues in effect engaging in a peer review of her decision because of that.
67. It is not of course her decision to take its mine, but a judge would, as has often been said, need strong and compelling reasons to depart from such a considered recommendation.
68. She was examined in chief and I was surprised she did not deal with the AFC evidence which had not been available when she filed her report, particularly given her conclusions at the top of E334 that he is young enough to benefit from another adoptive placement, which does not entail the very significant risks of remaining with the applicants and that he will be able to form such a healthy attachment . These rosy views are in contrast with those of AFC.
69. The report sets out her reasons for the recommendation in her analysis of the welfare check list. The lack of empathy with Y may later be mirrored in X ... E327), and that may mean they cannot meet X's changing and unpredictable needs through childhood. This is despite the evidence, from Mr and Mrs PA and others which I accept of their unconditional love of X. Paragraph 29 is based on "inadvertant pathologising" of Y, in itself contradicted from other independent evidence, and then a whole structure of speculation is built upon this. At E328 the welfare checklist is analysed, again at E329 Y's views are used as a predictive of X's. At c) on E330 she finds that X's relationship with Y will be at risk if he stays. It was put to her that there was little else Mr and Mrs PA could have done to promote the relationship and was she not setting the bar too high and she did not have a suggestion as to what else could be done? At E328 she accepts the veracity of what Y is saying cannot be established yet running through her report at times there is speculation without that evidence base, see the comment at the bottom of E331 for example about X being given false memories.
70. There are therefore a number of concerns about the basis of the CG's report prior to cross examination, for example her concerns about the future relationship of Mr and Mrs PA with X, loss of the relationship with Y and Mr and Mrs PA's attitude to Y which are at least debatable and even plainly wrong on other evidence, most of all there is the, I find over reliance, on Y's withdrawal of allegations and what she says about Mr and Mrs PA when the truth cannot be established one way or the other. She said about their change of views about the truthfulness of Y's withdrawal "Mr and Mrs PA are people like us, they should have had time to turn concerns into questions, they characterised Y as telling untruths, particularly on my second visit". I am afraid this again is putting an unrealistic burden on Mr and Mrs PA of change in the maelstrom in which they were caught, the "long and painful journey" they were going through. She was distrustful even of things like Mr and Mrs PA placing photographs of Y round the home "it's easy to place photos", she, I find completely misrepresented or misunderstood their positive contribution to contact thinking the LA rather than Mr and Mrs PA suggested the change of venue because "the LA felt they needed to change contact because overtly and covertly Mr and Mrs PA were preventing a relationship developing". I was very uncomfortable with this approach.
71. My concerns about CG's evidence grew after the very careful cross examination of her by the advocates for Mr and Mrs PA and AFC.
72. First her comments were at times very hostile and then contradictory. " I am not saying they are telling the judge what he wants to hear but it's in a box that they will not be able to follow up on" then later "I believe them when they say they have changed their minds" and about contact "they are doing the right thing but not for the right reasons".
73. During the course of cross examination by AFC it's my view the CG consistently underestimated the impact of removal of X on his future emotional and psychological wellbeing and his ability to form attachments, she had not considered the evidence of the 2 workers from AFC nor had she considered either VS on this or even JWS, instead she argued attachment theory - secure attachment with Mr and Mrs PA transferring to another carer - without taking into account the devastation brought by the disrupted adoption with them. She said he might lose a bit of faith in adults. Furthermore, when examining with her the proposed form of words of explanation to X for the move, their utter inadequacy was apparent to me. She also failed in my view to consider properly the evidence from AFC the prospects for finding another adoption placement or the research on this that was put to her. She said she preferred the LA evidence on this but I don't see there was even any acknowledgement that the research and experience based views of a specialist adoption agency needed to be taken into account. She accepted the support plan of AFC during the entirety of X's minority ameliorated a number of risks but she did not change her recommendation. After each of these points she repeated "my view is that he should be moved" but it became less and less clear what the evidential basis for that was.
74. It gives me no pleasure to make these comments about a conscientious and well-motivated CG. I did wonder if she had been effected by the social workers' anger at the actions of Mr and Mrs PA when Y left and then as other elements of the picture emerged, she felt she could not abandon her initial view and indeed if her status as Y's guardian over-effected her in issues appertaining to X, but that's speculation on my part. Whatever the reason, I don't think the CG assessed all the evidence and gave appropriate weight to it in this particular case.

The Welfare Check List Considered.

75. The relevant sections of the Adoption and Children Act checklist are it seems to me to be a) ascertainable wishes and feelings of the child and e) any harm the child has suffered or is at risk of suffering. His particular needs are being met at present, if they will be in the future is part of the assessment of risk at e). The only issue arising out of ceasing to be a member of his family is his contact with Y and again possible loss of that is part of the risk assessment of harm. d) is not relevant, nor is f) .
76. It's is absolutely clear to me that if X was asked he would say he wanted to stay with his "mummy and daddy" for that is what Mr and Mrs PA have been since he was placed with them. Any other outcome would at this point in time be inconceivable and unexplainable to him. I accept he would also want appropriate information about his birth family in the future, whether he will get that is part of my assessment of risk in considering future harm.
77. Any Harm He Has Suffered or is At Risk of Suffering:

The central issue in this case is the balancing of future risk with Mr and Mrs PA against future risk if moved. That involves speculation about the future but I must use the evidence base of the past and the present to speculate. Risk assessment which is what this is involves identification of risk, assessment of risk, consideration of whether it can be managed and consideration of whether it can be reduced. I propose to draw up a balance sheet of both risks as they are now in order to perform the function of making a choice of the best option for X.

78. Risks with Mr and Mrs PA:

History will repeat itself and in a crisis Mr and Mrs PA will reject X. My assessment is this is highly unlikely for all of the reasons identified in the evidence. The crisis with Y is unrepeatable in its circumstances, Mr and Mrs PA were at fault but not the sole contributors to the crisis. X is not as damaged a child, he has had 2 stable placements since he was a few months old, they only have to deal with him, they unconditionally love him. The failure of therapeutic and professional support will not be repeated because of the support plan from AFC. Mr and Mrs PA have 30 months of parenting experience now which in X's case has succeeded . They have, as I found, learned from the experiences they have had.

A crisis of some sort will almost certainly occur. Given X's background and issues of physical abuse, possible sexual abuse and separation from his sister my view is this is highly likely to happen but Mr and Mrs PA are much better placed to handle a crisis with this child than Y. I have already found, based on the evidence, that they will maintain contact with Y for X. I have already found they will give X information about his birth family and about Y. They will find it very challenging dealing with his questions about why she left and did she abuse him, they will need professional advice and therapy about that, it can be facilitated via AFC and I have found they will take it. I also think issues about Y will be less difficult for them because they are now uncertain about their view of if she abused X. There are risks but these are identifiable and can be managed and reduced.

79. The Risk of Moving X:

Short term and long term psychological damage. Possibility of not finding an adopter.

Possibility of adoption break down again and X being unplaceable.

The evidence identifying these risks permeates the case. Given X's age it will be impossible to explain to him why he has been moved, particularly as this will come out of an apparently trouble free landscape, unlike when Y had to be moved. I find that these risks are unmanageable and unpredictable and cannot be reduced because it is the act of moving X which will trigger them, they cannot be avoided or mitigated as the risks if he stays with Mr and Mrs PA can be.

80. I am convinced on the totality of the evidence that on one side of the equation, staying with Mr and Mrs PA are risks which are manageable, on the other side, removal, are risks which are not manageable and could quickly spin out of control. In those circumstances it is clearly in his best interests to stay where he is and also that it is in his best interests throughout his life that he is adopted by Mr and Mrs PA in all the circumstances here and that leads me to make the Adoption Order as requested by the applicants.