P-B (a child), Re [2006] EWCA Civ 1016

Case No B4/2006/0888

[2006] EWCA Civ 1016

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM WATFORD COUNTY COURT (HIS HONOUR ROGER CONNOR)

[LOWER COURT No. WD04C01372/WD06Z00439]

Venue Royal Courts of Justice

Date Thursday, 15 th June 2006

Strand

London, WC2

B E F O R E:

LORD JUSTICE THORPE LADY JUSTICE ARDEN

LORD JUSTICE WILSON

IN THE MATTER OF P-B (A CHILD)

(DAR Transcript of

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MR M KEEHAN QC & MR R O’DONOVAN (instructed by Messrs Taylor Walton) appeared on behalf of the Appellant.

MR N O’BRIEN (instructed by Hertfordshire County Council & Messrs Carr Hepburn) appeared on behalf of the Respondent.

J U D G M E N T

LORD JUSTICE THORPE:

The

[1]parties to these proceedings are the local authority, the mother and father of the child, and the child R via his guardian. R is nearly four years of age. His parents are not married. They commenced a relationship in 2001 and in addition to R, who was born on 29 July 2002, they also have E, who was born on 9 August 2003. During the course of their relationship they have cohabited, but now live separately.

[2]Very sadly the mother of the appellant in this court suffers from something that is either Asperger’s Syndrome or an Asperger’s-type presentation. That has undoubtedly impeded her capacity to provide for R the standards of care immediately after his birth which would have been sufficient to relieve professionals involved with the family of anxiety. Her problems were compounded by post-natal depression, suffered after R’s birth.

[3]This potentially serious situation was dramatically compounded by the discovery in April 2004 that R was suffering from an acute form of leukaemia. Inevitably as a result of that, he has required very high standards of care and high standards of ongoing medical treatment. The local authority endeavoured to support the mother through the resulting stresses and strains, but very sadly in July 2004 they considered that a continuation of the process would put R at unacceptable risk. They applied for an Emergency Protection Order on 9 July and for a Care Order on the 15 July. Since the month of July, R has been in foster care under a series of interim Care Orders during the preparation towards trial. I emphasise that E has had no particular difficulties or illnesses in her early life and she is sufficiently cared for by her mother and remains in her mother’s charge.

[4]Following the initiation of the proceedings there were a number of directions appointments, many of them before HHJ Connor. There was a directions appointment before that judge on 11 November 2005, to which I will return, and on 27 January HHJ Connor made an order reducing the level of the mother’s contact to R. At that stage, there had been seven care plans prepared and submitted, all of which provided for ultimate rehabilitation. However, on 1 February 2006 the local authority filed its eighth care plan and that abandoned the goal of rehabilitation and substituted the route to adoption. No doubt influential on that change was the report filed by Dr Yates, a child and adolescent consultant psychiatrist, who had been introduced into the proceedings by the Directions Order of 11 November.

[5]The case was timetabled for a final hearing to commence on 6 March, and at a pre-trial review on 9 February the local authority indicated to the other parties that, pursuant to their eighth care plan, they were placing R’s case before the adoption panel, which was due to meet next on 6 March. It was plainly indicated that if the panel favoured the adoption proposal, then the local authority would immediately issue an application for a Placement Order under the current legislation. The local authority’s position was that the requirements of the Act and Regulations had to be complied with before the Placement Order application could be issued.

[6]The trial commenced on 6 March. The panel approved the adoption proposal on the same day, and on 8 March the application for a Placement Order was issued. It was before the judge on the following day, 9March, when the local authority sought a direction that it be immediately listed to be disposed of as part and parcel of the continuing trial of the Care Order application, and that all the evidence in the care proceedings should stand as evidence in the adoption proceedings. HHJ Connor acceded to that application and gave a short judgment explaining his reasons for so doing. The judgment has not been transcribed, but we have an agreed note of what he said.

[7]During the course of the trial the judge heard extensive evidence from the parties, from the foster parents and from a number of professionals who had been involved with either the parents or with R, either delivering clinical services or making professional assessments. At the conclusion of the evidence the judge, I think, reserved for a period of about ten days and then handed down an exceptionally full and thorough judgment running to some 120 pages. The effect of the judgment was to grant the local authority’s applications for the Care Order and for the Placement Order. The local authority had throughout been supported by the guardian ad litem, who fully adopted and endorsed the local authority’s professional judgments and submissions.

[8]The rival case had been very skilfully presented by Mr Michael Keehan QC leading Mr O’Donovan for the mother. The realistic target for which Mr Keehan strove was the rejection of the path to adoption at this early stage in R’s life, in favour of a sort of moratorium during which he would remain with the foster parents and remain in medical treatment. That would provide the opportunity for a full review at the conclusion of the current medical treatment towards the end of 2007. Mr Keehan’s alternative case had received support from a consultant paediatrician, Dr Raffles, and also from a clinical psychologist, Mrs Braier, who had carried out assessments of both parents.

[9]The outcome, the judge rightly recognised at the conclusion of his judgment, was, as he put it, a great disappointment to the parents. Very naturally, an application for permission to appeal was mounted to the judge and he refused it, giving unusually full reasons for so doing. The application was renewed in this court and Hughes LJ on paper directed that the permission application be listed for oral hearing, with appeal to follow if permission granted. That has been the listing today and the hearing has throughout been treated as the hearing of appeal; although we have not formally, as yet, granted permission, we have plainly inferentially done so by listening with care to very skilful submissions from Mr Keehan and from Mr O’Brien in response. We have also heard briefly from Mr B, who has not been represented, but who made a statement to the court at the conclusion of counsel’s submissions.

[10]With that introduction, I turn to the two grounds which Mr Keehan has advanced on his client’s behalf. He prefaced his submissions by making it quite plain that if Miss P were in person, she would present a wholesale attack on the judicial conclusion and strive for the immediate rehabilitation of her son. Mr Keehan has inevitably superimposed a realistic assessment of what could plausibly be argued in this court, and he has abstracted from the range of possibilities these two grounds which require separate consideration.

[11]The first ground is essentially a complaint of procedural unfairness, in that a litigant who not only faced the huge emotional turmoil of contested care proceedings, with the high risk of losing her child at the termination, was then forced to respond to and adjust to the application for a Placement Order at the very latest stage in the trial, with no opportunity for reflection and no opportunity to advance a carefully considered case in relation to the Placement Order application or in relation to consequential issues of contact.

[12]In advancing that submission, Mr Keehan introduces a point of statutory construction which can be confined to section 22 of the Adoption and Children Act 2002. This is the Act which introduces the current statutory scheme for the adoption of children in replacement of the Adoption Act 1976. Its operation is supplemented by rules, namely the Adoption Agencies Regulations 2005, and also by departmental guidance issued under section 7 of the Act. There is, first in time, the National Adoption Standards, and more recently the guidance, both of which have the same foundation and force. The narrow point is as to what is meant by the phrase:

“The appropriate local authority must apply to the court for a Placement Order if they are satisfied that the child ought to be placed for adoption.”

[13]That quotation comes within the provisions of sections 21 and 22. Section 21, Placement Orders, provides: “(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority. (2) The court may not make a placement order in respect of a child unless -(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c) the child has no parent or guardian. (3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied – (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent’s or guardian’s consent should be dispensed with. This subsection is subject to section 52 (parental etc. consent). (4) A placement order continues in force until - (a) it is revoked under section 24, (b) an adoption order is made in respect of the child, or (c) the child marries or attains the age of 18 years. “Adoption order” includes a Scottish or Northern Irish adoption order. (a) the child is subject to a care order, (b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or (c) the child has no parent or guardian. (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent’s or guardian’s consent should be dispensed with. (a) it is revoked under section 24, (b) an adoption order is made in respect of the child, or (c) the child marries or attains the age of 18 years. “Adoption order” includes a Scottish or Northern Irish adoption order.

[14]Section 22, Applications for Placement Orders, provides: “(1) A local authority must apply to the court for a placement order in respect of a child if -(a) the child is placed for adoption by them or is being provided with accommodation by them,

(b) no adoption agency is authorised to place the child for adoption,

(c) the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and

(d) the authority are satisfied that the child ought to be placed for adoption. “(2) If – (a) an application has been made (and has not been disposed of) on which a care order might be made in respect of a child, or (b) a child is subject to a care order and the appropriate local authority are not authorised to place the child for adoption, “the appropriate local authority must apply to the court for a Placement Order if they are satisfied that the child ought to be placed for adoption. (a) the child is placed for adoption by them or is being provided with accommodation by them, (b) no adoption agency is authorised to place the child for adoption, (c) the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and (d) the authority are satisfied that the child ought to be placed for adoption. (a) an application has been made (and has not been disposed of) on which a care order might be made in respect of a child, or (b) a child is subject to a care order and the appropriate local authority are not authorised to place the child for adoption, “the appropriate local authority must apply to the court for a Placement Order if they are satisfied that the child ought to be placed for adoption.

[15]So Mr Keehan’s clear submission is that the local authority, as a statutory authority in pursuit of a Care Order, and in pursuit of a care plan that provides for adoption, must have been satisfied that the child ought to be placed for adoption from the date of the submission of eighth care plan, and accordingly could and should have issued the application for a Placement Order on that date. Had that been done, all the resultant unfairness would have been avoided. To delay the issue of the Placement Order application until the fourth day of the trial was simply to invite unfairness. It was the consequence of an erroneous construction of these sections in reading them as precluding the issue of the Placement Order application until the requirements of the regulations to place before the Adoption Panel, and to ratify the decision of the Adoption Panel, had been satisfied.

[16]The contrary argument has been skilfully developed by Mr Nicholas O’Brien in his skeleton argument. He submits that the proper construction of section 22 must be taken in the context of the statutory scheme as a whole, including the requirements of the regulations. He stresses that adoption panels are a crucial component of the decision making process and that that process is set out in regulations 11 to 17. The process culminates in the laying of the case before the Adoption Panel and in the conclusion of that panel. He stresses that the panel members must be at least five in number present and they must have a wide range of experience and knowledge of the adoption process. They are independent of the local authority and the decision of the panel is clearly entirely independent of any decision taken by the local authority.

[17]Mr O’Brien stresses that he local authority essentially has two quite separate functions in this field. Its first and, perhaps for us, most familiar function is in the protection, support and assistance of children under parts (iii) and (iv) of the Children Act 1989. However, it is, under the terms of the Adoption and Children Act 2002, also an adoption agency and its function as an adoption service is distinct under section 3 of the Adoption and Children Act 2002. Thus, says Mr O’Brien, there are these interlinked duties. Thus the local authority in pursuance of its responsibilities and duties under the Children Act may reach a decision that adoption is the right future for the child and so declare in the care plan. The case must then be presented to the panel, which must reach its recommendation under the terms of the regulation. If the decision of the panel supports the provisional decision of the local authority acting under part 4 of the Children Act, then the decision of the panel must be considered independently by the local authority as an adoption agency under the provisions of Regulation 19. Effectively, that means that a senior officer in the local authority must take a decision to endorse the positive recommendation of the panel to complete the statutory process. Once that is done, says Mr O’Brien, the way is clear for the issue of an application for a Placement Order. Prior thereto, the issue of an application would be plainly premature.

[18]So, in the very shortest summary, the dispute is as to what is meant by the requirement in section 22 that a local authority is to apply for a Placement Order if they are satisfied that the child ought to be placed for adoption; is the local authority acting under the provisions of parts 3 and 4 of the Children Act 1989, or is the local authority acting as an adoption agency under the terms of the Adoption and Children Act 2002?

[19]I am in no doubt in my mind that Mr O’Brien is right in his construction. It is in its role as an adoption agency that the local authority must be satisfied, and that process cannot be achieved until there has been complete compliance with the requirements of the regulations, namely that the appointed officer has taken the positive decision to endorse the recommendation of the panel.

[20]Accordingly, on the facts of this case it was not open to the local authority to issue the Placement Order application any earlier than it did, and the question for the judge then was whether to permit the consolidation and contemporaneous conclusion of the two applications. Mr Keehan has not made any specific criticism of the short judgment given by HHJ Connor, which was noted but not transcribed, and the question must be: was his discretionary conclusion within the wide ambit of his discretion? I am in no doubt that it was.

[21]The theoretical case for unfairness is easily understood. All this came at a very late stage, a further threat and burden to a litigant already threatened and burdened, a litigant who has particular disability which must excite the sympathy of all: but looked at perhaps more realistically and in the context of the circumstances in the round, it does not seem to me that that was the consequence for the mother. After all, it had been made perfectly plain from the filing of the eighth care plan that the support of the local authority had evaporated and that they were now seeking legal sanction to separate her from her son permanently. Furthermore, at the pre-trial review it had been made absolutely plain that the moment there was panel approval the Placement Order application would be issued.

[22]I find it very hard to see what would have been the gain for the mother had Mr Keehan succeeded in persuading the judge simply to give directions on 9 March and to fix for some later date the trial of the Placement Order application. She, it could be said, would have the opportunity to file further evidence, but I find it hard to see what that evidence would be, beyond that which was already filed in resistance to the Care Order application. It cannot be said that her rights to apply for contact were prejudiced since, by virtue of section 26 of the Children and Adoption Act, she can apply after the grant of the Placement Order and certainly up to, and probably beyond, placement.

[23]So if it is hard to identify what benefit would have resulted from the adjournment of the application, it must be hard to discern a prejudice to her, other than the general sense that risk was being heaped on risk. So on this point, my ultimate conclusion is that the judge was perfectly entitled to order the consolidation and to rule on the Placement Order application in the single reserved judgment.

[24]Mr Keehan’s second ground is directed to the judge’s conclusions on the evidence. His main concentration is an attack on the judge’s acceptance of the evidence of Dr Yates. As I have already indicated, Dr Yates was brought into the case by a direction given by this judge on 11 November. What seems to have happened on that day was that the parties attended, certainly the local authority, guardian and mother’s solicitors, and suggested to the judge an instruction to Dr Yates, which would involve the release to him of the papers in the case to enable him to prepare a written report by mid-January.

[25]Given the timeframe, it was understood that Dr Yates would not be able additionally to see or meet R in relationship with his parents. The judge drew an order to that effect, that is to say releasing the papers; there was an understanding that the subsequent letter of instruction was to be agreed between solicitors for local authority and guardian, after consultation with the mother’s solicitors. The letter of instruction which was signed by the solicitor for the guardian at two passages clearly conveys to Dr Yates the opportunity to come back if, having considered his instructions, he felt it necessary for him to see the child or the parents before arriving at a recommendation. Dr Yates did not seek to take advantage of that opportunity, and it was not suggested to him by any party that he should do so. Accordingly, his report as delivered was founded on the papers alone and it culminated in a recommendation that R should be placed for adoption.

[26]Of course that influential opinion was likely to impact adversely on the mother’s case and there was an obvious forensic need to diminish its impact. That no doubt influenced Mr Keehan’s opening position statement, in which he stressed that the opinion had been reached without any sight of the child or the parents, and he sought at that stage the adjournment of the proceedings for fuller investigation by Dr Yates, a position that he maintained in his final written submissions.

[27]Dr Yates was inevitably asked about all this in the course of his oral evidence, for which we do not have a transcript, although again we have an agreed note, and during the course of answers which he gave (at C125 in our bundle, and again at C134 and C136) there are passages that were undoubtedly helpful to Mr Keehan. For instance, there is an answer at 134:

“That is correct I have been hampered by not seeing the relationship.”

[28]At 136 there is an answer:

“I took the view that the court had taken the view that I did not need to see the child hence I did not make any objection.”

[29]At C125, in the course of a long answer, Dr Yates said:

“I never conduct a paper exercise if I do not feel it helpful and I understood that the court must have had very good reasons only to allow a paper exercise. It was my understanding only a paper assessment was allowed. I accepted there are reasons for this. On reading the papers I would have alerted Instructing Solicitors if I needed to see the family. I felt all the way through that I could prepare an assessment for the court.”

[30]Now that was dealt with by

the judge in paragraph 79 of his judgment, when he said of Dr Yates’s report:

“His report had been based upon reading the papers only. He had not met the child or any of his carers. Nevertheless, said Dr Yates, he would not embark on a paper exercise if he did not think it would be helpful to the Court, and he understood that the Court must have had good reasons for only allowing a paper exercise in this case. That, it seems to me, is an unfortunate misinterpretation of the position by Dr Yates. I have seen his instructions and it could not have been made clearer that if he thought it necessary to see the people involved he should say so. He did not do so. The court had not ‘only allowed’ a paper exercise. In fairness to him he did go on to say that he would have alerted the solicitors if he had thought it necessary to carry out interviews, but had felt all the way through he could be helpful to the Court just with a paper exercise.”

[31]Now that seems to me to be a passage that is not open to criticism on the facts as they have been established at this hearing. I also conclude that the judge was perfectly entitled to rely on the opinion of Dr Yates, despite the limitations. He had Dr Yates’s assurance that he would not have proceeded if he felt that a paper-only exercise was inappropriate and that had not been his view at any stage. Accordingly, the judge was entitled to place the reliance which he did on the evidence of Dr Yates. Although there were contrary views from the consultant paediatrician and from Mrs Braier, it was the function of the judge to balance those differing opinions, and in preferring the opinion of Dr Yates he had also of course the full support of the guardian who is, himself, in his own sphere an expert.

[32]Mr Keehan’s second attack is on the paucity of information as to what placement of R would be achieved following the grant of the local authority’s applications. He says that he required the attendance of the appropriate officer to be cross-examined, and the judge deals with her evidence at paragraphs 97 to 99 of his judgment. Mrs Baldrance was the officer. She was an adoption manager. She had no knowledge of the particular case, since the person with that knowledge was at that time away, but she gave general evidence as to what in her view was achievable in the case and the judge balanced all that in paragraphs 116 and 117 of his judgment.

[33]It seems to me that the approach he adopted in paragraph 117 is not open to any substantial criticism. He first of all noted the local authority’s acceptance that R would be more difficult to place because of his illness and because of what might be a genetic predisposition to inherited personality disorder. However, on the other hand he noted the evidence of Mrs Baldrance that the search for adopters was likely to be successful. He additionally noted that R was assessed, or perhaps that is too impersonal an expression, for both Dr Nandury and R’s foster mother clearly regarded R as a very attractive child. Finally, the judge relied his extensive knowledge of that local authority, gained during the course of his long judicial specialisation in family work in that court. He said that they had a good reputation and that he knew from his own experience that they had systems in place to enable them to find a suitable family. I accordingly see little force in that criticism.

[34]Having thus reviewed the specific heads advanced by Mr Keehan in support of his appeal, I reach the unhesitating conclusion that it should be dismissed. Nobody could have said more for Miss P than has been said on her behalf today by Mr Keehan, nor could anybody have said it more attractively, but in the end it does not seem to me that there is sufficient ground for this court to allow this appeal.

LADY JUSTICE ARDEN: I agree. I would like to add some observations on the first issue, the question of construction arising on section 22(1) of the Adoption and Children Act 2002.

[36]In the present case the local authority intended to comply with its obligation under regulation 19 of the Adoption Agency Regulations 2005. Regulation 19 required it to:

“.. take into account the recommendation of the adoption panel in coming to a decision about whether the child should be placed for adoption.”

[37]I say nothing about the case where the local authority commences proceedings without, for whatever reason, fulfilling or properly fulfilling its statutory obligation under this regulation. Indeed, the position about that might not come to light for some time and the court might have proceeded to make an order. The resolution of that situation will have to await until it arises. Hopefully it never will. On the point that arises in this case I agree with what my Lord has said and his analysis.

[38]There is a separate issue as to what Regulation 19 means. It clearly imposes a substantive duty to take account of the recommendation of the Adoption Panel. It is not enough to pay lip service to the recommendation of the adoption panel. On the other hand the duty is only one to take account. Thus it must be open in theory at least for an adoption agency to reach a different view from the recommendation of the adoption panel, but I anticipate that the local authority would have to have strong grounds for doing so.

[39]The fact that this substantive duty requires careful consideration by the local authority of the recommendation of the adoption panel in my judgment supports the conclusion on construction which my Lord, Lord Justice Thorpe, has already expressed.

[40]For these reasons and for those given by my Lord, Lord Justice Thorpe, I too would dismiss this appeal.

LORD JUSTICE WILSON:

[41]I agree with the analysis of my Lord, Lord Justice Thorpe. My Lady, Lady Justice Arden, has added reference to Regulation 19 of the Regulations of 2005. I, for my part, would add reference to Regulation 18(3) of those same regulations. It provides:

“(3) Where the adoption panel makes a recommendation to the adoption agency that the child should be placed for adoption, it must consider and may at the same time give advice to the agency about - (a) …; and (b) where the agency is a local authority, whether an application should be made by the authority for a placement order in respect of the child.”

That seems to me clearly to suggest that recommendation and consequential decision precede an application for a placement order.

Order

Appeal dismissed.