IN THE MATTER OF v B (A CHILD) [2001] EWCA Civ 347

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON COUNTY COURT
(HIS HONOUR JUDGE COTTERILL)
[2001] EWCA Civ 347Case No NO: B1/2000/3662Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 20th February 2001
Between
IN THE MATTER OFB (A CHILD)
Before
Lord Justice ThorpeLady Justice HaleMR MICHAEL HOROWITZ QC and MISS SHANE LYON (instructed by Triggs Read & Dart, 103 Boutport Street, Barnstaple, Devon EX31 1SY) appeared on behalf of the Applicant and the Guardian ad LitemMISS ANNA PAUFFLEY QC and MR ANTHONY WARD (instructed by Hartnell and Co, 20 Cathedral Yard, Exeter, EX1 1HB) appeared on behalf of the Respondent and Devon County CouncilDate 20 February 2001

LORD JUSTICE THORPE:

This

[1]appeal is brought from a judgment and order of His Honour Judge Cotterill sitting in the Taunton County Court on 10th November 2000. The appeal comes with leave granted by the judge himself from which I infer that he had some real question in his mind as to whether the conclusion that he had reached was sustainable.[2]The relevant background can be drawn from the chronology which has been filed by Mr Horowitz in support of the appeal. The case is all about a little boy named J who was born on 18th August 1994. His parents are DB and AK. AK had her first child K in July 1991 and DB is not his father. Subsequently she gave birth to a second child C on 19th June 1992 of whom Mr DB is the father.[3]The local authority became involved with these children as long ago as April 1993 when they brought care proceedings in relation to both K and C. It is notable that as long ago as 1st April 1994 Mrs Catherine Lockyear was appointed as guardian ad litem to those two children in those proceedings. The local authority in due course obtained a care order in respect to the two boys prior to J's birth.[4]J was first accommodated in November 1996 at his mother's request and when proceedings were brought in relation to J in the local Family Proceedings Court in December 1996 again Mrs Lockyear was apointed guardian ad litem. J's placement with Mrs F was accomplished on 18th December 1996, and it has been an entirely excellent placement from J's point of view. He has thrived as a member of Mrs F's family. She has children of her own a good deal older, those three children now being respectively 18, 15 and 12. However, throughout his placement he has maintained and developed an excellent relationship with his father. The care order in respect of J was made on 7th April 1997, and from that day to the present J has had regular contact with his father either by agreement or by order of the Court.[5]The father applied for residence orders in respect of the three children in March 1999. Again, in relation to that application Mrs Lockyear was appointed guardian.[6]Dr Gay came into the case in 1999, instructed on behalf of the father, and he filed the first of several reports in that month. At the same time, or at about that time, Mrs F joined the proceedings.[7]On 22nd November 1999 the local authority held a permanency planning meeting, the outcome of which was a resolution to bring about J's adoption by Mrs F but with continuing monthly contact to his father supplemented by such additional contact as Mrs F should arrange. However, there was a directions appointment on 20th January 2000 at the local Family Proceedings Court at which all the parties, with the exception of the local authority, agreed that there should be a residence order in respect of J to Mrs F buttressed by a section 91(14) order restraining the father from making an application for a residence order without the leave of the Court. At that hearing the father was granted parental responsibility in respect of both K and J. It was further agreed that the father would under the terms of the residence order have generous and more or less unrestricted contact.[8]That accord would have seemed to have settled J's future but, seemingly, about a month later Mrs F's solicitors informed the father's solicitors that the local authority was unhappy with the agreement reached at Court and wished her to proceed with an application for adoption. That application she, in due course, issued on 16th May 2000, and again in relation to her application Mrs Lockyear was appointed guardian ad litem. The report filed by the guardian on 13th October recorded that the father's application for residence orders was without any foundation, and recommended that the existing arrangement of placement under care orders was appropriate for both K and C. In relation to J, Mrs Lockyear recommended a residence order to Mrs F supported by the section 91.14 order. However, by her statement of 2nd November, Mrs F made it plain that she was not prepared to agree to the formula recommended by the guardian but that she was quite content to promote frequent and regular contract between J and his father.[9]When the case came before the judge on 10th November he had to consider of the various options whether he should impose a residence order on Mrs F, whether he should make an adoption order as she sought, or whether he should continue the existing arrangement, a care order and placement with Mrs F. At the outset of his judgment he disposed of any issue in relation to K and C. Their case was formally before the Court on that occasion, but it was universally agreed that the arrangements for them should be endorsed, namely that they should remain subject to a care order and that they should remain where they were.[10]In relation to J the judge made it absolutely plain that he was not minded to impose a residence order upon Mrs F. He then went on to enumerate the pros and cons as he saw them of either continuing the status quo or, alternatively, making in its stead an adoption order in favour of Mrs F with a contact order to father. At the end of his analysis of the considerations for and against, he came to the conclusion that the balance fell in favour of an adoption order. He then went on to consider whether it was right to dispense with the father's consent. He had only to consider the father's objection since the mother who played very little part in the debate had indicated her readiness to consent to an adoption order in favour of Mrs F.[11]In a short passage he reasoned that it was open to him to dispense with the father's consent and he concluded by making the adoption order. That of course he did in the face of reasonable opinions from both the guardian and Dr Gay that of the two options considered by the judge, the status quo would better promote J's welfare. However the course that he took had the support of the social worker in the case, Mrs Beaumont.[12]In support of the appeal Mr Horowitz has really distilled his case to three propositions. First of all he says that on any analysis the plans which all parties in the case supported for the management of J's future minority were quite inconsistent with the making of an adoption order. Mr Horowitz points out that as well as this very close relationship between J and his father, he sees his paternal grandmother very frequently, since she is employed as a cleaner at the very school that he attends, and he emphasises that all the parties live within a very short distance of each other on the same estate in the same town.[13]Secondly, Mr Horowitz says that the judge gave insufficient consideration to the submission that the making of an adoption order would be a breach of the father's right to family life under Article 8 of the European Convention. The point is not referred to anywhere in the judgment, and it may be that it was not much argued before the judge on the father's behalf, but Mr Horowitz makes the point that it was certainly raised by counsel for the guardian ad litem in his written submission.[14]Thirdly, and finally, Mr Horowitz submits that however the judicial task is defined, this was simply not a case in which the judge could reach the conclusion that the father was unreasonably withholding consent to the adoption since on any analysis of his responsibility he was entitled to give full weight to the fact that adoption was opposed by both Dr Gay and the guardian ad litem.[15]Each of those three submissions are in my opinion well-founded, and Mr Horowitz might very well have been entitled to succeed in this appeal on any of those grounds. Miss Pauffley has had an uphill task in trying to support the judge's conclusion. She has faced that task with her customary resolution and economy, but I am afraid she has failed to persuade me on any of the points in question. In my opinion this was simply not a case in which the plans for J were consistent with an adoption arrangement. With great respect to the judgment of the local authority, who clearly have striven throughout to achieve what they believed to be best for J, the resolution adopted on 22nd November 1999 seems to me to have been an inappropriate one given the strength of the relationship between J and his father and given the extent to which it was intended that that relationship should be fostered.[16]Equally, it is unfortunate that the local authority did not stand back and accept the accord that was reached between all parties other than themselves on 20th January. Again it seems to me that the management decision of February 2000 to encourage Mrs F to issue an application for adoption was flying in the face of the sensible arrangements that had seemed to emerge from the beginning of the year.[17]As Mr Horowitz reminds us, the guardian's assessment is powerfully expressed in her written report. Having at page 50 defined the reality in these terms, "The reality is that J has two families and that this must form part of his integration", and having on the same page recorded "J's strong attachment to his 'Dad'", at page 53 she distilled the case for

the judge in this paragraph:

"This case questions the meaning of contemporary adoption. J lives in close proximity to his paternal family, has frequent contact with them and his brothers. He has a warm relationship with many of his paternal family and 'idolises' his family. Mr B supports his placement. It cannot be feasible to say that Mr B is unreasonably withholding his consent to J's adoption."
[18]It seems to me that that really defines the reality of the arrangements that had been achieved for this little boy by the date of the hearing in the county court. It amounted to a gap that was unbridgeable and the judge's endeavour to bridge it does not, in my opinion, stand up to analysis. His attempt is to be found at page 7 of this judgment when he says:
"It has to be a long term view, because an adoption order is irrevocable and its effect considerable, since it is inconsistent with a child being a member of two families at the same time. However, it seems to me he can be a part of two families, but of course those parts would not be of equivalent status."
[19]That endeavour seems to me to recognise but not to answer what was the root problem in this case. To make an adoption order was inconsistent with the reality that J was both a member of his foster mother's family and a member of his father's family.[20]Secondly, I have grave doubts as to whether the judge sufficiently considered the father's right to family life. As Mr Horowitz has submitted, it does not seem that the judge considered whether the interference with the father's right to family life which would result from the making of an adoption order was necessary and proportionate in accordance with Article 8(2) of the Convention. It seems to me in this case that it is very hard indeed to demonstrate the necessary proportionality given the completely satisfactory arrangement that was open for judicial approval in the confirmation of the status quo for J, just as it had been confirmed for the older children of the family.[21]Mr Horowitz's strongest ground, if I had to choose among the three, is perhaps his last. It does seem to me that the judicial licence to override the sustained objection of the natural parents would be stretched to quite unjustifiable limits if, in a case such as this where the adoption option was opposed to the extent it was within the professional council, the judge could set aside the father's objection. After all, there was perhaps nobody who knew more about this family and these children than Mrs Lockyear who had been consistently appointed to the responsibility of guardian ad litem time after time from the first initiated proceedings before even J was born. Nobody in the field of child and adolescent psychiatry has given such generous forensic service to family justice on the western circuit than Dr Martyn Gay, and the wisdom of his recommendations is widely recognised by all the specialist judges on that circuit. It seems to me that it would be extremely hard to label as unreasonable an opinion held by a father knowing that it was an opinion that he shared with such an experienced guardian and such an experienced forensic expert.[22]For all those reasons I firmly believe that the order made by the judge below is plainly wrong and must be set aside and in its place an order in terms now to be considered in detail and it should be substituted.

LADY JUSTICE HALE: We all understand, as has recently been emphasised in the White Paper,"Adoption: a new approach" (December 2000, Cm 5017) at paragraph 5.1, that "Children need permanence -- a secure, stable and loving family to support them through childhood and beyond". That, it must be emphasised, this little boy already has. He has a maternal family and by that I mean his foster mother and her family and his sisters, and he has a paternal family by which I mean his father, his father's family and his brothers. He has excellent relationships with all of them. The only question in this case is the appropriate legal machinery to recognise those undoubted facts.

[24]It is important, it seems to me, that everyone concerned recognises that there is more than one way of securing legal permanence. One way is adoption. But in a case such as this, there are at least three problems with it. The first is that it takes something away from J. It removes his relationship with his father, his brothers and his father's family. Secondly, it is only a viable solution in a case like this if it is combined with a contact order. That is something which generally the courts are not willing to impose upon the adoptive parents, although there may be cases where it is entirely appropriate to do so. But, more importantly, it is designed to maintain a level of continuing contact between J and his whole paternal family which calls in question the appropriateness of the wholesale transfer in legal terms which adoption brings about. Thirdly, and I agree with my Lord that this is the most important point, it requires parental agreement.[25]It is still the law that parental agreement can only be dispensed with on defined grounds and the only one suggested here is that the father is withholding his agreement unreasonably. The test of that was laid down by the House of Lords in the case of Re W [1971] AC 682. This makes it plain that it is not just what this father thinks which is important, but what a reasonable father might think. But as was said by Lord Hailsham:
"Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable."
[26]Is Dr Gay to be regarded as unreasonable because he thought that adoption was not the right solution in this case? Is the guardian ad litem to be regarded as unreasonable because she did not think adoption was the proper solution? I think not, no more than I think that the social worker, Mrs Beaumont, was unreasonable in taking the view that adoption was the right solution. But where there are two reasonable views, and the parent holds one of them, it cannot be said that the parent is unreasonable in withholding his agreement to the adoption.[27]The next possibility is a residence order. There has been a tendency, it seems to me, to diminish the value of what can be achieved by a residence order. Provided that it is supported by all the extras that in the particular case are found necessary, it can give this little boy everything that he needs security and stability throughout his childhood, and contact and a continuing relationship with his family; it can be backed up by additional provisions to protect that security in fact; and if needed, the continuing support of the local authority both can and should be made available to them. Its only real disadvantage is that it does not create the legal relationship of mother and child between J and his foster mother, but it is quite clear that no order is needed to create that relationship as a matter of fact. She knows perfectly well how she feels about J and she will continue to feel the same way about him. Whatever way the court decides is not going to change that. No doubt there is room for further refinement of the potential and alternatives, which is foreshadowed in the White Paper, but a great deal can already be done and should be done if at all possible. (I have to say as an aside that the ideal solution in this case might have been, were it possible, that an adoption order was made for the foster mother to replace J's mother while leaving the relationship between J and his father intact.)[28]The third possibility is to maintain the care order with J placed and with his foster mother. I see very few real advantages to that. The continued support of the local authority comes at a price of continued monitoring and insecurity. But it is understandable, in the circumstances of these proceedings, that that was how J's foster family felt about it. However it cannot be the case that the choices available to the Court, properly recognising the needs of the relationships involved, can be restricted by opting for the less satisfactory of the two alternatives to the order which is sought.[29]I would emphasise that in agreeing that this appeal should be allowed I make no criticism at all of J's foster mother. She has shown what a good mother she is to him by all she has done for him since he has lived with her. That includes nourishing and assisting the development of his relationship with his father. His father of course is to be given credit for building such a positive relationship with his son, who spent a very short time actually living with him. That bond and relationship is one which should and must be maintained in J's best interests. His foster mother should not think that she has been less successful in these proceedings, because she has been so sensible and reasonable. The law would be defective indeed if it granted adoption orders to much less reasonable foster mothers and denied one to her, but that in my view is not the case here. The case is that we must try to devise the legal relationship that best reflects the actual relationships in these families. In my judgment that cannot be done by way of an adoption order. (Appeal granted; order of court below setaside and substituted by order for father and guardian ad litem; legal aid and taxation)

Cited in 1 later judgment