Re X (children) [2002] EWCA Civ 828

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM A COUNTY COURT
[2002] EWCA Civ 828Case No Case No: 2002/0525Venue Royal Courts of Justice, Strand,, London, WC2A 2LL, Thursday 30th May 2002
Between
Re X (children)
Before
The PresidentLord Justice BuxtonLady Justice HaleLeading and junior counsel (instructed by solicitors) for the Appellant parentsLeading counsel and a solicitor advocate for the Respondent prospective adoptersJunior counsel for the local authorityJunior counsel for the children's guardianDate 30 May 2002

Lady Justice Hale:

This

[1]is the judgment of the court. The problem This is a highly unusual appeal in that the people on whose behalf it is made know nothing about it. Their children are the subject of adoption applications currently proceeding under the confidential serial number procedure because the prospective adopters wish their identity to be kept secret. Unknown to the parents, the prospective adopters are in fact the couple who previously fostered the children. They have looked after the children from when the children were first removed from home four years ago. Care orders with care plans for adoption were made a few months later. The parents continued to see the children monthly until the following year. The parents were then given to think by the local authority and in all the later documentation that a new adoptive placement had been found. A final visit took place nearly two years ago and the children were formally 'placed' for adoption shortly after that.[2]However, the parents' solicitor does know the truth. She learned it during a review meeting earlier that year, when she arrived ahead of the parents and heard the prospective adoptive father introduce himself as foster carer and prospective adopter. This was not a surprise to her, as it had been hoped at the time of the care proceedings that the same family would adopt the children.[3]The adoption application was filed last year. The parents indicated that they would not consent and later filed their own application for contact with the children. Last October, their solicitor applied for the court's directions as to disclosure, as she believed that the parents had the right to the information she had and The Law Society Ethics Department had advised her to raise it with court. The case below[4]On 15 February 2002 a circuit judge refused the solicitor permission to disclose the prospective adopters' identity to the parents. However, he directed that all the information before the court, including identifying reports, could be disclosed to the solicitor. He time-tabled the case for final hearing before the designated family judge in July. He also gave permission to appeal to this Court.[5]There is no need to say much more about the facts than will appear in the course of discussing the arguments in this appeal. The evidence in the bundle is not primarily directed to the issue before us but to the issues in the case. It has been carefully drafted so that the parents can read it without learning the truth. In summary the issues are these:(1) As to adoption, the parents are withholding their consent but now accept that the children cannot be returned to them. They would like the children to remain in long term foster care. Indeed they say that they were upset that the children were moved from the foster carers, with whom the parents felt that they had a good relationship. However, the children's guardian supports the prospective adopters and the local authority in the adoption application. This is a large sibling group, some of whom have special needs. They have all thrived in the prospective adopters' care over the past four years and no longer exhibit many of the problems they did before.(2) As to contact, the parents wish to resume limited direct contact with their children, seeing them some three times a year in a supervised setting. They believe that it will benefit, not only these children, but also an older child in the family and a younger child who was born after these children were taken into care and has remained with the parents. There is evidence from the guardian that the oldest child in this group, who is nearing adolescence and has a clear recollection of his birth family, is missing the birth family and would like to see them. The prospective adopters do not want direct contact. They think that it will be unsettling for the children who are doing so well. They are confident that they can handle the oldest child's feelings. The local authority shares this view and argues that post adoption contact only works well when the birth family can support the placement. These parents have not accepted it and the mother can become aggressive with the social worker on the subject. The local authority has gone to enormous lengths to maintain anonymity. At considerable expense, the whole family has been moved away from the original town where they all lived, into a different county; the parents were given false first names for the prospective adopters; there is a considerable economy with the truth in all the documents before the court, including the statement of facts in support of the application to dispense with parental agreement and the schedule II reports. The guardian supports the local authority's view on contact. She does not share the social worker's confidence about the feelings of the oldest child but accepts that it would not be possible to cater for his needs without jeopardising those of the other children.(3) On anonymity, the prospective adopters say that they insisted on it. They would not have considered taking on these children if they had felt that they were going to continue to share them with the birth parents. The children would be torn in half if there were further direct contact. They are also concerned that the children could be at risk from members of the wider birth family if confidentiality were breached. The local authority supports them. However, the guardian supports disclosure. She acknowledges that it is finely balanced but there is no real evidence that the parents would disrupt the placement if they knew the truth. Indeed, they might be more inclined to support it. There is obviously a risk that the oldest child will seek out his birth family within the next two or three years. Disclosure now would give the prospective adopters more control if that happened. They might also feel less threatened.[6]The serial number procedure is provided for in the Adoption Rules 1984, rule 14:
"If any person proposing the apply to the court for an adoption order wishes his identity to be kept confidential, he may, before commencing proceedings, apply to the proper officer for a serial number to be assigned to him for the purpose of identifying him in the proposed process and a number shall be assigned to him accordingly."
The effect is provided for in rule 23(3):
"If a serial number has been assigned to the applicant under rule 14, the proceedings shall be conducted with a view to securing that he is not seen by or made known to any respondent who is not already aware of the applicant's identity except with his consent."
Rule 53 makes provision for the confidentiality of documents and information in adoption proceedings. Generally a person is only entitled to inspect that part of a confidential report which refers to him, and this is subject to the court's power to direct, among other things, that it shall be revealed only to his legal advisers (see rule 53(2)(b)).[7]Despite the mandatory words of rule 14, it is common ground that the court does have a discretion to disapply it and lift the veil of anonymity. The judge directed himself in accordance with the three fold test derived from the speech of Lord Mustill in Re D (Adoption Reports: Confidentiality) [1996] AC 593 , at para 16 of his judgment:
"The first question is would the disclosure of the material involve a real possibility of significant harm to the child? The second one is, if it would, the court must consider whether the overall interests of the child benefit from non-disclosure weighing the interests of the child in having the material properly tested in the case against the magnitude of risk and harm that would occur and the gravity of the harm if it did occur, and, thirdly, if the court is satisfied that disclosure is not in the interests of the child the court has to weigh that consideration and its strength and the circumstances of the case against the interests of the natural parents having an opportunity to see and respond to the material in the case taking into account the importance of the material to the issues in the case."
[8]The judge decided that there was a real possibility of significant harm to the children, from two sources: first, intervention of the parents in the lives of the adoptive family would 'plainly be disastrous if it happened in an unplanned and unauthorised way;' and secondly, harm would result from the increased anxiety of the adopters. The harm, if it happened 'would not just be significant but might well be catastrophic'. He weighed this against the problems of testing the evidence properly. He acknowledged all the difficulties in taking instructions from the parents. He did not underestimate the forensic disadvantage and apparent unfairness to the parents in trying to deal with the issues without their knowing what the true position was. But weighing this against the real possibility of significant harm if the veil was stripped away, he had no doubt that the interests of the children lay in favour of anonymity being preserved. The guardian's concerns could be dealt with when the matter came to be tried. He also observed that 'in the hearing when evidence is being given the court will constantly keep this matter under review'. The issues in this appeal[9]Counsel for the parents agrees that the principles in Re D do apply, but points out that there are five of them. Lord Mustill prefaced and followed the three fold test referred to by the judge, at p 615:
"1. It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party. This principle applies with particular force to proceedings designed to lead to an order for adoption, since the consequences of such an order are so lasting and far-reaching. . . . "5. Non-disclosure should be the exception and not the rule. The court should be rigorous in its examination of the risk and gravity of the feared harm to the child, and should order non-disclosure only when the case for doing so is compelling."
Accordingly, the court's starting point should be in favour of disclosure of all the information relevant to the court's decision.[10]Counsel for the prospective adopters argues that Re D does not apply in this context. The issue there was whether information about the children's wishes and feelings which was adverse to the mother should be disclosed in accordance with rule 53 or whether an exception could be made because the children did not want her to be told their views. The issue in this case is whether to breach the serial number procedure, which is available to all prospective adopters simply on application. The whole object of adoption is to transfer children from one family to another and give them a completely fresh start in life. The starting point should therefore be to preserve the anonymity of their new existence.[11]Counsel for the parents draws support from the right to a fair trial in civil disputes, guaranteed by Article 6 of the European Convention on Human Rights. All parties, the birth parents, prospective adopters and the children, draw support from the right to respect for family life in Article 8. There is no doubt that the children have and have had a 'family life' with their birth family, not only their parents but also their wider kin, and with their prospective adopters. The prospective adopters also pray in aid the right to respect for their private life under Article 8.[12]All parties are content to rely on the uncontroversial summary of the relevant jurisprudence of the European Court of Human Rights in the judgment of Munby J in Re B (Disclosure to Parties) [2001] 2 FLR 1017, at paras 34 to 43. In particular, 'the right to an adversarial trial means the opportunity for the parties to have knowledge of and comment on the observations filed or evidence adduced by the other party': see Ruiz-Mateos v Spain (1993) 16 EHRR 505 , para 63; Dombo Beheer v The Netherlands (1994) 18 EHRR 213 , para 33; McMichael v United Kingdom (1995) 20 EHRR 205 , para 80. Further, an unfair trial may also deprive the parents of the right to participate effectively in the decision-making process about their children, which is also a violation of their rights under Article 8: see W v United Kingdom (1988) 10 EHRR 29 , para 64; McMichael v United Kingdom (1995) 20 EHRR 205 , para 87; L v United Kingdom [2000] 2 FLR 322 , 332G.[13]Unlike the right to respect for family and private life in Article 8, the right to a fair trial in Article 6 is absolute and unqualified. But the content of a fair trial in any particular case is more flexible and depends upon the context: as Lord Bingham of Cornhill said in Brown v Stott (Procurator Fiscal, Dunfermline) and Another [2001] 2 WLR 817 , at p 824, "What a fair trial requires cannot, however, be the subject of a single unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done." Departures from the usual requirements of an adversarial trial must, of course, be for a legitimate aim and proportionate to that aim. Protecting the welfare of these very vulnerable children is undoubtedly a legitimate aim.[14]It is clear that the House of Lords in Re D was well aware of the European Convention and its jurisprudence. The case for resisting disclosure was supported by an opinion and argument from the late Peter Duffy QC. The only new element introduced by the Convention into the five factors listed there are the interests of the adult parties which, as Munby J observed in re B , at para 66, may also support non-disclosure in an appropriate case.[15]In the end, the issue still comes down to striking a fair balance between the various interests involved: the interests of all parties, but particularly the birth parents and the children themselves, in a fair trial of the issues, in which the evidence on each side can be properly tested and the relevant arguments properly advanced before the court; the interests of the children, their birth family and their prospective adoptive family, in protecting their family and private lives from unjustified interference; and the interests of the children in being protected from harm and damage to their welfare, whether in the short, medium or longer term.[16]Hence, the tripartite test in Re D is still the appropriate way of approaching this balance, provided that the relevant interests of the adults are also taken into account. In the context of the case before us, there is no particular starting point in striking that balance. Counsel for the parents has not sought to mount a wholesale attack upon the serial number procedure in adoption. The longstanding practice of anonymity in adoption proceedings counterbalances the assumption that all parties should know everything that the court knows. Thereafter it is a question of balance.[17]Counsel for the parents attacks the way in which the judge conducted that balancing exercise. She argues that he underestimated the problems of conducting a fair trial in these circumstances, overestimated the risks to the children's welfare, and did not deal properly with the views of the guardian whose role, after all, is to protect the children's interests. A fair trial[18]Counsel for the parents very fairly acknowledges that none of the problems which they will face at the trial is individually insuperable. Nevertheless cumulatively they will present formidable problems, not only for the parents' legal team but also for the witnesses and above all for the judge himself. She argues that they should not be asked to contend with these unless it is absolutely necessary in the children's interests.[19]It is argued that it will be difficult to address the fundamental question of whether the parents are being unreasonable in withholding their agreement to the adoptions when they have been deprived of the most important piece of information which would affect any reasonable parent in this situation, the knowledge that their children are to be brought up by the very foster parents whom they liked and respected. It is arguably unfair to stigmatise these parents as unreasonable in their attitude to the proposed adoption, particularly as their very experienced solicitor is optimistic that she could help them to reach a different view if only they knew the truth. It will be even more difficult to address the issues about contact, in particular the problem presented by the oldest child. There is a conflict of professional opinion between the guardian and the local authority social worker which will have to be resolved. There is a conflict between the parents and the prospective adopters as to their relationship while the children were still fostered. There will be practical problems taking full instructions from the parents. The parents will have to be excluded from a great deal of the hearing, including the opening and closing submissions; it will not be possible to follow the usual practice in the Royal Courts of Justice and in some other courts, of the parents following the whole case apart from their own evidence by audio link; they will only be able to be present for their own evidence and to hear the evidence given by the social worker and the guardian about past events, before the children were 'placed' for adoption. There will be the ever-present risk of an incautious word from someone which will reveal all and only increase the parents' sense of injustice. For that reason, the prospective adopters could not give evidence even of their experience while foster parents in the presence or hearing of the parents.[20]Most of these problems are indeed soluble. The issues are now well known. Full instructions can be taken from the parents in advance. They can be available for speedy consultation should any new factual matter emerge upon which their instructions are necessary. The case for the parents can be very fully put to the prospective adopters and to the local authority social worker without the parents being present or in earshot. The prospective adopters' fears can be fully explored, as can the difference of view between the guardian and the social worker about the oldest child. The parents' case can be fully presented to the court.[21]In reality, the difficulties are rather different. The main problem is likely to face the judge. An integral part of a fair trial is a reasoned judgment. It must be acknowledged that the parents' prospects of success, either in resisting the adoption or in achieving contact, are not strong. Will the judge find it possible to give a proper explanation of the reasons for his decision without revealing the truth? It cannot be pretended that the actual identity of the prospective adopters is irrelevant to the issues in the case, as it is in most anonymous adoptions. It is highly relevant, both to the reasonableness of the parents' attitude and to future contact. This case may be unique, in that foster parents who apply to adopt do not commonly seek the protection of the serial number procedure.[22]The other problem is not strictly related to a fair trial but is related to achieving the best outcome for all concerned but particularly the children. Family lawyers do their best to assist their clients to recognise where the best interests of their children lie and to reach negotiated rather than contested solutions. The parents' solicitor in this case believes that she could reconcile the parents to the adoption if only they knew the truth. Social workers and guardians also try to work with their clients and the parties to achieve the best outcome. The guardian believes that if the truth were know she could work with both the parents and the prospective adopters, in particular around her concerns about the oldest child. No such movement from their currently strongly polarised positions is possible in the present situation. The risk of harm[23]Counsel for the parents also argues that the evidence of harm to the children if the prospective adopters' identity were disclosed is not such as to warrant the judge's strongly worded conclusions. The parents did not seek to make unauthorised contact or disrupt the placement when they all lived in the same town, the parents knew who the foster parents were and may have known their address, and certainly knew where the older children were going to school. The evidence filed in the case does not deal directly with the reasons for the prospective adopters' fears or with what they would do if their identities were made known. We have been given further evidence, which we have received informally, of their views. Their opposition to disclosure, and in particular their fears of disruption from the wider family, are based on allegations made at the time of the care proceedings some of which were not established in the facts agreed for that purpose. The prospective adopters are so committed to these children that there is no question of their giving them up should the truth be known. But they do feel that it would then be necessary to uproot them once more, to move to yet another location, and to change their names, so as to protect the children from the risk of unplanned contact from their birth family.[24]The guardian herself reported that the breach of confidentiality causes 'great anxiety' to the prospective adopters and that they have a 'very real fear' that the birth parents will seek out the children and cause major disruption to the family. It can be said that the parents did not do so before, but that was when they were having regular contact with the family. It is argued that it may well be different in future when they learn how they have been deceived and if they are denied even the limited contact which they now seek.[25]Counsel for the prospective adopters prefaced his remarks with the obvious but vital point that these children have been extraordinarily fortunate so far. It is very difficult indeed to place any sibling group together, the more difficult the larger the group and the greater their individual needs. Yet these children have found a new family which has already done wonders with them, wants to keeps them together and wants to keep them for good. These prospective adopters are a very precious resource indeed to these children. The irony, as the guardian recognised in her report, is that the one possible criticism of them is that they may be over-optimistic about their capacity to recognise and deal with the oldest child's feelings about his birth family; yet there is a sound basis in research for thinking that it is this sort of failure which is most likely to lead to the disruption of older children's placements. Conclusion[26]This was an unfortunate dilemma for the judge, as it is for this Court, and the more so because it could have been avoided. The local authority could have applied in 2000 for permission to refuse contact between the children and their parents. It could also have applied to free the children for adoption. It chose instead to deny the parents the opportunity of challenging those decisions then, to practise a deception upon them, and to place the Court in the unenviable position in which it now finds itself. We have, however, to be satisfied that the judge was plainly wrong before we can interfere with his decision.[27]The reality is that it is impossible to say that the judge's exercise of his discretion in this difficult situation was plainly wrong. The problems facing the parents' legal team will be formidable but they will not be insurmountable. Indeed, in some respects their task could be made easier because they at least will have access to all the information before the court, whereas this is not the universal practice in adoption cases at present. They will be able to deploy all their points and arguments, perhaps more fully than if the parents were there to hear them. The interests of these children in maintaining the secure and happy home they now have with the prospective adopters, irrespective of their status there, is so great that it must outweigh those problems.[28]However, as the judge himself recognised, that position cannot be set in stone. In our view, there are at least two circumstances in which the position may have to be reconsidered by the judge who tries the case. The first is that there is some movement or change in the parties' positions which could resolve matters. It is by no means impossible that the prospective adopters may be moved by the discussion of the oldest child's difficulties, or even by hearing the evidence of the parents, to reconsider their position. All family practitioners have encountered cases of very significant movement in what had been thought to be entrenched positions in the course of a hearing. The second is that the judge who tries this case may realise that it is going to be impossible for him to resolve the issues in the case and explain his reasons for doing so without revealing the truth.[29]One half way house which was not explored before the judge was to reveal the truth but to accompany it with specific injunctions designed to prevent the parents making any unauthorised contact with the children or the prospective adopters. We are told that that matter was not explored because the case was in the county court and that court has no inherent jurisdiction to grant injunctions to protect the welfare of the children. The extent of the county court's powers is a complicated issue and the practical problem can readily be solved by transferring the case to the High Court, to be heard by a designated adoption judge who is authorised to sit in the Family Division of the High Court. This half way house should be then available to him if it becomes appropriate in the light of the case as he hears it. It will be for him to make his own assessment of whether whatever injunctions are proposed will be sufficient to protect the children from whatever risks are perceived to their welfare.[30]We would dismiss this appeal.

Order

Appeal of appellants dismissed. The case to be transferred to high court to be heard by his Honour Judge B; if HHJ B is not available then the Family Division liaison judge to be consulted before case is listed before another judge. Case must be heard by a Family Division Judge or a Deputy High Court Judge authorised to hear adoption cases reporting restrictions do apply. (order does not form part of the approved judgment)

Cited in 8 later judgments