Q (A Child) [2011] EWCA Civ 1610

Case No B4/2011/2128[2011] EWCA Civ 1610
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS JUSTICE PARKER)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 December 2011
Before
LORD JUSTICE MUNBYLADY JUSTICE BLACKLORD JUSTICE KITCHIN
Between
Appellant fatherAppellant
IN THE MATTER OF Q (A CHILD)
Hearing Hearing date : 4 October 2011
Ms Alison Ball QC and Ms Gina Allwood for the appellant father (F)
Ms Judith Rowe QC and Ms Judy Claxton for the confidential adopters (Mr and Mrs A)
Mr Philip Bowen for the local authority
Ms Victoria Hodges filed written submissions on behalf of the mother (M)
Judgment
Lord Justice Munby :
[1]This is the judgment of the court to which we have each made a significant contribution.

Introduction

[2]This is an appeal from a judgment and order made by Parker J on 18 July 2011 in what, when giving permission to appeal on 15 September 2011, I described as exceptionally difficult adoption proceedings: [2011] EWCA Civ 1102. Parker J had correctly described the proceedings as difficult and painful and said that the strictest confidentiality was required. We agree.[3]It is for that reason that at the outset of the hearing of the appeal on 4 October 2011 we imposed unusually wide reporting restrictions. The order we made, superseding an order I had made to the like effect on 15 September 2011, was in the following terms:
“No one shall publish or reveal (1) the name or address of the child who is the subject of these proceedings; (2) the names or addresses of any of the parties to these proceedings; (3) the names or addresses of any person, body or organisation (other than counsel) or the name or location of any place referred to in the documents or during the hearing of this appeal; or (4) any particulars or other information which would be likely to lead to the identification of any person, body, organisation or place referred to in (1), (2) or (3) above.”
That order remains in force.[4]Parker J was concerned with a one year old baby whom we will call Q. Since it is important that neither she nor her parents should be identified, this judgment will not go into great detail about the circumstances of the case, all of which are, of course, known to the parties themselves.[5]Neither of Q’s parents was born in this country. Each has come to live here from his or her respective country of birth within approximately the last decade. Both are Muslim but their cultures differ. The father (F) is married to a woman from his country of origin (W). The mother (M) is not married.[6]F wishes to look after his daughter himself and seeks a residence order in his favour. In the event Parker J refused his application and made an adoption order in relation to Q in favour of Mr and Mrs A. F appeals against that order. M had throughout consented to the adoption. It was not necessary in the circumstances for the judge to dispense with F’s consent, but she made it clear that, had that issue arisen, she would have dispensed with his consent.

The facts

[7]F was already married to W when he and M met but W was not yet living in this country. Parker J found that F pursued M, not telling her that he was married. The relationship between M and F was kept secret from the majority of M’s family. The evidence established that they would have rejected a match such as this which spanned what they would have seen as a profound cultural divide and that both M and F would have faced repercussions, certainly from her community, if it had been made public.[8]M conceived towards the end of 2009 when F was just about to go to fetch W to live with him in this country. Parker J found that the pregnancy was unplanned. M seems first to have suspected that she was pregnant in spring 2010. Terrified of the reaction of her family, and particularly of her father (GF), she ran away from home to F. She told F she thought she was pregnant and sought his support. W was there and F told her that M was just a friend and was having problems with her family and needed refuge. M stayed the night on the sofa in the living room as a friend would do and returned home next day.[9]The pregnancy was confirmed in early summer 2010 when M was already about 23 weeks pregnant. She travelled to the other side of town for her ante-natal care because she was so frightened of the consequences if her pregnancy were to be discovered. Two days after the pregnancy was diagnosed, a relative of M’s who knew of the circumstances took her to Social Services with a view to having the baby adopted when it was born. M explained to Social Services that she was scared that GF would hurt her and the family would reject her if they found out and that she did not want any relatives to be contacted.[10]Social Services held a strategy meeting and decided to initiate child protection proceedings. Their assessment was that the risk of physical harm to M and to the baby was high.[11]M was offered protection in a refuge but declined it and remained living at home. Her evidence to Parker J was that, as her pregnancy advanced, she confided in her mother (GM) and a sister about it; another relative already knew. She said there was a plan that when she went into labour someone would call GF away on a pretext so that she could go to hospital. She said she wore loose fitting clothes and her pregnancy did not show unless one was looking.[12]The birth took place at hospital and M was discharged within hours, leaving Q at hospital in the care of the nursing staff. After three days, Q was placed in a short term placement whilst an adoptive placement was sought. Social Services proceeded with the formalities on the basis that she had been relinquished by M. In due course, M gave written consent to her placement pursuant to section 19 of the Adoption and Children Act 2002 and, under section 20 of that Act, to the making of a future adoption order.[13]Q was placed with Mr and Mrs A in December 2010 and has remained there since. They come from the same country as M, although not the same community. They are also observant Muslims. Q quickly made a deep attachment to them.[14]What did F know of the pregnancy and birth?[15]The judge had some difficulty in unravelling what really happened following M’s visit to F’s home in Spring 2010 because the evidence pointed in different directions. She left some disputes unresolved.[16]F’s case (denied by M) was that M rang him, hysterical, in summer 2010 to tell him that the baby had died and that, in addition, he had a number of meetings with M when she confirmed this. He said (and she denied) that he continued to have a relationship with M until she returned temporarily to her home country towards the end of the year.[17]It was F’s case that he made a number of enquiries about the baby following M’s departure, seeking to find it or at least to find out if it was alive. He said he contacted the police in December 2010 but they could not assist him. He said that when he then contacted a hospital, they suggested he consult the register of births, deaths and marriages and he found a birth certificate for the child but no death certificate. He said he went back to the police in the light of this and they told him to contact Social Services. He said that he first rang Social Services in January 2011 but got nowhere.[18]It was common ground that the parents spoke to each other by telephone in early February 2011. Each said the other instigated the call. It was also established that F was finally able, on 15 February 2011, to speak to the social worker on the telephone, when he told her that he was the father of a child born to M and enquired what had happened to the child. Furthermore, Social Services accepted that this was not F’s first call to them. There were earlier calls which had not been properly logged or passed on to the social worker.[19]Parker J considered the undoubted delay by F in seeking information about the baby. His evidence about it was not wholly consistent. There was no explanation, she thought, as to why he should think the baby was dead but then become suspicious that it was still alive at the particular point he described. The only way in which she could make sense of the delay was by attributing it to a deliberate decision on F’s part.[20]The social worker did not disclose any information to F in her first telephone call with him. She arranged to speak to M, who was still abroad, and seems to have received some confirmation that F was the father of the baby. Social Services called a strategy meeting. Enquiries of the police showed that GM had told them that if GF found out about the child, he would consider himself honour bound to kill the child, M, GM herself and GM’s other children.[21]It was decided that the local authority would apply to the court for permission not to inform F about the proceedings in relation to Q. Before that was done, a letter was received on 1 March 2011 from a solicitor for F, asking for information about the baby and indicating that F wished to apply for a residence order. Social Services reconsidered the circumstances and decided that Q was appropriately placed with the adopters. The adoption application was filed at the county court on 8 March 2011 and, in response to an ex parte application by the local authority, the designated family judge gave them permission not to respond to enquiries made by or on behalf of F or to give him any further information pending a hearing later in the month before a Family Division judge. The matter came before Parker J on 28 March 2011 and from that time on, the case was dealt with exclusively by her.[22]It is clear from Parker J’s later judgment that at this early stage she was appropriately cautious about the local authority’s application to keep matters from F and also that she was dubious about certain aspects of the case, such as whether it was possible that M could have remained in her family home without GF becoming aware of the pregnancy. However, she was persuaded by the evidence of the police that there could be a very high level of risk to M and Q if the fact of the baby’s birth were to become known in the wider community. She was anxious that if no information was given to F, he might inform M’s family of the birth (as he appeared to have threatened to do) so, at her instigation, following the hearing at the end of March 2011 a letter was sent telling F that the child was alive and well and had been placed for adoption. The judge made an order restraining F from disclosing any information about Q and from contacting or attempting to contact Q or any member of the maternal family.[23]Thereafter, F became part of the proceedings. A DNA test was arranged and, concurrently with that being carried out, a viability assessment of F was done. Nothing in the viability assessment ruled F out; the social worker was impressed by his and W’s care of their own baby who had been born a matter of months after Q.[24]Such was the urgency of the matter that Parker J arranged for the final hearing to be listed before her for three days in July 2011. A directions hearing took place on 23 June 2011. By then, there was a full social work report on Q, on the prospective adopters, and on F and W. The social worker referred in particular to the degree of attachment between Q and the adopters, and to the problems of disrupting that attachment, as well as highlighting matters that gave her concern in relation to F and W. F applied for leave to instruct a child and adolescent psychiatrist to report on attachment; he also applied for disclosure of the police file in relation to the case. The judge ordered that the police should disclose any relevant records by 4 July 2011. Nothing was forthcoming from the police and we are given to understand that they have said that all they have on file has been disclosed already. Parker J refused to permit the instruction of a child psychiatrist, principally on the basis that it would delay the hearing as the report would not have been available until the autumn. She took the view that the social worker and the guardian were qualified to deal with the issue of attachment and that a psychiatric report would not assist the court sufficiently to justify an adjournment. There was no appeal against this case management decision.[25]At the final hearing, the local authority, M and the adopters invited the judge to make an adoption order; the guardian supported F’s case for a residence order. Evidence and submissions took up the three days for which the case had been listed, concluding on the Friday. The judge gave the parties the opportunity to deliver written submissions to her over the weekend which F’s counsel and the guardian’s counsel did. Judgment was delivered orally on the Monday following, 18 July 2011.

Parker J’s judgment

[26]The judgment is a long and careful one and reveals the degree of anxiety and care with which the judge approached the case. It includes a considerable number of findings of fact covering diverse issues which need not all be set out here.[27]The judge’s findings about the risk of physical harm to the child and members of her family are very important. It is a topic to which she returned regularly during the judgment. She found that there were no physical risks if Q were to be adopted by Mr and Mrs A; in contrast, although she could not quantify it, she found that there would be “a very significant risk” if Q were to live with F and W. She did not consider that the risk was removed if, in fact, GF already knew of the baby as she acknowledged may be the case. She observed that whilst there was no baby evident, there was no proof of the relationship between M and F but “[i]f Q is placed with her father then two and two might very easily be put together” because Q is quite obviously not W’s child. If GF’s community were thus to find out about the relationship between M and F, “it would be a matter of intense almost unimaginable shame to him and his family”. It was plainly the judge’s view that this might provoke action to preserve the family’s honour and she thought that “a particularly high degree of risk from relatives or members of M’s community would arise immediately after placement”. She was mindful of the seriousness of the physical harm involved and observed that:
“the magnitude of the consequences here is such that even a small degree of risk must be taken into account. In my judgment here there is such a risk and quite possibly a high one.”
[28]The judge’s findings also included central findings about the adopters, about F and W, and about Q’s situation.[29]The findings in relation to Q included that she had quickly made a deep attachment to the adopters and that there was a “significant risk that [she] will not make an adequate transfer of attachment” to F and W. The judge found that it would be wholly unrealistic to expect the adopters to participate in a programme designed to move Q gradually to F and W; that they could not control their emotions; and that the prolonged agony of parting would cause Q immense distress. She found that an immediate transfer to F would also cause very significant problems.[30]The judge found that Mr and Mrs A had the “high degree of empathy, sympathy, insight and maturity” required to meet Q’s “particular needs for stability, for safety, for her cultural, ethnic and religious identity to be enhanced and maintained”. She found that she could:
“repose absolute confidence in Mr and Mrs A to give Q information about her background, her life, what happened to her mother, the feelings of her father, her father’s wishes for her, the fact she has another family, in a way which is sympathetic and perhaps will even have the benefit of being more acceptable from them than from one of the protagonists in this extremely complicated and difficult history.”
[31]The judge considered that Q would be at risk of emotional harm in the care of F and W both in the short and in the long term. She viewed their approach to Q moving to live with them as problematic. She found that they did not understand Q’s likely reaction to the move and planned to deal with that and other issues arising from Q’s particular situation in a way that would be damaging to her. She found that “F’s feelings about the Local Authority and his general inability to take advice or to understand the point of view of others are such that I do not think that there is any prospect of him either taking or accepting advice if things do not go smoothly” and that “F and his wife are impervious to education” about Q’s feelings and reactions. The firmness of her view about the unsuitability of a placement with F and W is perhaps best summed up by her comment:
“Having looked at this case in more depth, in particular the issues about what Q is to be told, lack of empathy and insight, the tensions in F’s wife’s position caring for the child, the risk of honour based violence and F’s personality and the way that he deals with stress, I am far from convinced that had Q still been in foster care when F came forward that the right result would have been a placement for this child with him, this child having had a very unfortunate start in life.”
[32]Parker J concluded that: “The risks physical, emotional, short and long term are too great for Q to be brought up by her father” and that Q’s welfare throughout her life required her adoption.[33]It was not necessary for Parker J to dispense with F’s consent, because he did not have parental responsibility, so she went on to make the adoption order in favour of Mr and Mrs A, also ruling out anything other than letterbox contact with the natural family.

The appeal

[34]As originally drafted, F’s notice of appeal contained fourteen grounds of appeal. One (ground 12) was abandoned prior to the permission hearing on 15 September 2011. I refused permission on two grounds (grounds 3 and 4) and gave permission on the remaining eleven grounds (grounds 1, 2, 5, 6, 7, 8, 9, 10, 11, 13 and 14; they have since been renumbered). I made clear that I granted permission with some reluctance and I expressed the view that it was a distinct possibility that the appeal would be unsuccessful. I described grounds 10, 11 and 13 as probably the least compelling.[35]Having now had the benefit of detailed submissions in writing, and having on 4 October 2011 heard oral argument from Ms Alison Ball QC on behalf of F, from Ms Judith Rowe QC on behalf of Mr and Ms A and from Mr Philip Bowen on behalf of the local authority, Appropriately in the circumstances neither M nor the guardian was present or represented at the hearing of the appeal, their positions in relation to the appeal having been communicated to the other parties and the court in writing. On behalf of M written submissions had been filed by Ms Victoria Hodges. we are clearly and unanimously of the view that the appeal must be dismissed. We communicated our decision to the parties on 13 October 2011. We now give our reasons.

The grounds of appeal

[36]The eleven grounds of appeal fall into five groups relating to a number of discrete issues which it is convenient to label as follows: i) Grounds 1 and 2: family life; ii) Grounds 5 and 6 (now grounds 3 and 4): attachment and medium / long term considerations; iii) Grounds 7 and 8 (now grounds 5 and 6): cultural issues; iv) Grounds 9 and 14 (now grounds 7 and 8): risk of physical harm; v) Grounds 10, 11 and 13 (now grounds 9, 10 and 11): findings in relation to F and M.[37]What Ms Ball seeks on behalf of F is an order setting aside the adoption order, an order directing a re-trial and, consistently with the matters canvassed in the grounds of appeal, certain directions from this court in relation to the re-trial, for example, the appointment of a child and adolescent psychiatrist to report.

The opposing contentions

[38]Ms Rowe, on behalf of Mr and Mrs A, resists every ground of appeal. Parker J, she says, was entitled to decide as she did and for the reasons she gave. There is no proper basis of challenge. Indeed, she submits, in the light of all the evidence she had heard, Parker J was plainly right in her conclusion; the case for Q remaining with Mr and Mrs A and being adopted by them had, she submits, become overwhelming by the end of the hearing. She reminds us of the approach we must adopt where an appeal is based, as in very large measure this appeal is, on challenges to the trial judge’s findings of fact and to her evaluation of those facts in the context of an overall welfare appraisal. She referred us to the well known words of Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, page 1372, and to what was said very recently in this court in Re A (Fact-finding: Disputed Findings) [2011] EWCA Civ 12, [2011] 1 FLR 1817, paras [35]-[38].[39]Mr Bowen, on behalf of the local authority, likewise opposes the appeal and adopts Ms Rowe’s submissions. The main purpose of the local authority’s appearance before us seems to have been its wish to protect itself from criticism: not the criticism voiced in her judgment by Parker J (which Mr Bowen makes clear the local authority accepts) but the further criticisms, unmerited in its view, which are included in Ms Ball’s grounds of appeal.[40]Ms Hodges, on behalf of M, submits that the appeal should be dismissed and Parker J’s orders effected forthwith. M remains consistent, she tells us, in her view that it is Q’s welfare interests for the remainder of her life to be adopted by Mr and Mrs A. Adoption, as she reminds us, was M’s clear decision from well before Q’s birth. Ms Hodges, like Mr Bowen, adopts Ms Rowe’s submissions.[41]The guardian’s stance, we are told, is one of neutrality.[42]So the opposing contentions are those deployed respectively by Ms Ball and Ms Rowe. It is to these that we now turn. Ms Ball’s written submissions were wide ranging, detailed and lengthy, and so too, necessarily, were Ms Rowe’s in response. We have considered them all very carefully, and have them very much in mind, but must be selective in our summary.

The opposing contentions: grounds 1 and 2

[43]Grounds 1 and 2 raise a fundamental issue. Ground 1, a matter of mixed law and fact, relates to whether the judge was correct in holding that there was not in this case family life within the meaning of Article 8, the ground of appeal being that there was family life, alternatively that there was private life, which in either event required protection. Ground 2 asserts that the judge was in error in saying that, even if her finding adverse to F on the matters now sought to be ventilated in ground 1 was wrong, nonetheless his claim failed.[44]At one point in her submissions before me at the permission hearing Ms Ball began to suggest that there might be a question of incompatibility between our domestic legislation and the Convention. I said that I did not find that proposition, insofar as it was put forward, in the remotest degree plausible. I made clear that the grant of permission in relation to ground 1 did not include any ground of alleged incompatibility.[45]I also suggested that careful consideration would require to be given to whether it was going to be productive in the particular circumstances of this case to concentrate on ground 1 rather than ground 2 though, that said, I gave permission on both grounds.[46]Ms Rowe complains that Parker J was never invited to consider a case based upon asserted private life, only a case based upon asserted family life which she was entitled to reject. In any event, she says, even if the judge was wrong on all this she nonetheless gave adequate consideration to all those matters relevant to such Convention considerations as proportionality and fairness.

The opposing contentions: grounds 3 and 4

[47]Grounds 3 and 4 are linked or related inasmuch as they both assert that the judge fell into reversible error in the evaluative conclusion she came to in relation to the emotional impact upon Q were she to be removed now from Mr and Mrs A. There are two elements of complaint here. One complaint is that the judge erred in her earlier case management decision refusing F’s application for the instruction of a consultant child and adolescent psychiatrist. The other complaint is directed to the judge’s evaluation of the material relating to that issue, that mis-evaluation, as Ms Ball would have it, being in part, but not exclusively, caused by the fact that the judge by her own order had denied herself the assistance of that expert evidence in circumstances where there was a difference of view between the guardian and the social worker. Ground 4 also challenges the judge’s application of the welfare checklist, in particular sections 1(4)(c) and 1(4)(f) of the 2002 Act.[48]Ms Rowe submits that the judge was entirely justified in refusing to direct expert evidence, having regard to the other professional materials available to the court and the prejudicial consequences of delay. She submits that the judge’s substantive conclusions were reached not on the basis of general theories or professional views of attachment but on the basis of all the evidence before her, including her findings of fact, focusing on the question of how this child in her particular circumstances would or might be affected. The judge’s evaluation was, she says, securely founded in various key findings of fact which the judge was entitled to make. The difference of view as between the social worker and the guardian is a fact but, says Ms Rowe, it was then for the judge to choose between the competing views on the basis of all the evidence before her. That, she submits, is precisely what the judge did and in a way that cannot sensibly be challenged. As she points out, the judge was careful to give no fewer than seven reasons for preferring the evidence of the social worker to that of the guardian. Moreover, she submits, the judge properly addressed the welfare checklist, adequately if fairly briefly, coming to conclusions, securely founded in the evidence and sufficiently reasoned, which provide an ample justification and explanation for the decision in favour of adoption.

The opposing contentions: grounds 5 and 6

[49]Grounds 5 and 6 likewise have a linkage or connection inasmuch as they attack the judge’s findings in relation to particular impacts which it was suggested the child might suffer as a result or a consequence of the religious, cultural and ethnic features of this case. The judge is criticised for having, at the directions hearing on 23 June 2011, refused an application for a cultural expert to give evidence in relation to these matters and for what is said to have been her “bland dismissal” of the notion that “Muslims are prohibited from adoption” without any adequate examination of the differences between Islamic law and English law and of what it is suggested would be their likely effect on Q. Ms Ball also seeks to challenge the judge’s criticisms of the guardian’s evidence on some of these matters.[50]Ms Rowe challenges Ms Ball’s characterisation of the judge’s approach, submitting that it was more nuanced, disputes that an expert would have been of any real assistance – at the end of the day the judge had to determine the case in accordance with English law – and submits that the judge was entitled to find as she did and for the reasons she gave.

The opposing contentions: grounds 7 and 8

[51]Grounds 7 and 8 relate to a central aspect of Ms Ball’s attack on the judge’s decision. The judge, as we have seen, found there was a very significant risk of harm, extending to possible risk to life. The criticisms, as identified in ground 8, go to the way in which the judge treated the information which she obtained from an experienced police officer and the information which indirectly she obtained (in part through the evidence of the social worker and in part through the evidence of the children’s guardian) from two different officers within a well known organisation, and to the extent to which, as Ms Ball would have it, the judge erred in basing her conclusions upon her own experience rather than the evidence. Ground 7, which links in with that, is a detailed analysis of why, so it is said, the judge’s evaluation of the degree of risk was plainly wrong as also, it is said, her conclusion. In part, Ms Ball’s challenge is based upon what she says was the judge’s failure adequately to address the question of M’s reliability and credibility as a witness and failure in particular to grapple with what are said to be inconsistencies in her evidence on a number of significant matters.[52]Ms Rowe submits that the judge properly decided the case on the evidence, albeit that, perfectly appropriately, she brought her generalised and very considerable experience to bear. The judge, she says, was entitled to pay heed to the considerable experience of the police officer. She resolved, as she had to, and in a manner that cannot be criticised, the conflict between the different representatives of the organisation. She dealt adequately with the issue of M’s credibility, being mindful, as her judgment shows, of the evidential difficulties in the case. The fact that she did not specifically go through each of the areas of inconsistency does not, says Ms Rowe, invalidate either her reasoning or her conclusions. Overall, Ms Rowe submits, the judge approached with care and careful attention to the evidence what she (Ms Rowe) calls this daunting fact finding exercise.

The opposing contentions: grounds 9, 10 and 11

[53]Grounds 9, 10 and 11 go to the judge’s findings in relation to F, the complaint being that the judge was wrong to find, for example, that F was in breach of the injunction and that F and W had showed a lack of empathy and instinctive awareness of Q’s needs, just as she also erred in her characterisation of F as agitated and histrionic. The comment is made that despite what is described as M’s “patent unreliability” it was F who was made the subject of several critical findings by the judge, indeed, findings which Ms Ball characterises as unfair or ill-considered.[54]Ms Rowe’s submission, in short, is that F was in truth just as the judge described him and that far from being wrong she was in fact plainly right in her conclusions about him.

Discussion

[55]It is convenient first to deal with those grounds of appeal which raise matters of law before turning to consider those which relate to the judge’s findings on matters of fact.

Discussion: matters of law

[56]Grounds 1 and 2 include the assertion that Parker J was wrong to hold that there was here no family life and wrong in any event in her application of the principles to be found in the domestic and Strasbourg jurisprudence. Ground 4 includes the complaint that Parker J erred in her application of the welfare test and, in particular, in her application of sections 1(4)(c) and 1(4)(f) of the Adoption and Children Act 2002.[57]The basic principles are not in dispute, so we can go straight to the heart of Ms Ball’s case. She relies upon Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883 in support of her assertion that, despite what may have been the fleeting and tenuous nature of the relationship between F and M, there was nonetheless family life, in the sense in which that expression is used in Article 8 and, quite apart from this, in support of the assertion that the proceedings before Parker J also engaged F’s private life as that expression is used in Article 8. So, either way, she says, Article 8 was engaged, with the consequence that adoption of Q against F’s wishes was permissible only in “exceptional” circumstances of “overriding necessity” which, she submits, did not exist. She relies in this context upon various authorities including Johansen v Norway (1996) 23 EHRR 33 and Re C and B (Care[58]The interrelationship between the Strasbourg jurisprudence and the 2002 Act was considered by this court in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras [118]-[127]. For present purposes we need extract only two points. First (para [125]), that the word “requires” in section 52(1)(b) of the 2002 Act accurately captures the essence of the Strasburg jurisprudence on necessity. Second (para [127]), that there is no enhanced welfare test to be applied in cases of adoption. We do not understand what Arden LJ said in C (A Child) v XYZ County Council and EC [2007] EWCA Civ 1206, para [40], as qualifying any of this well-established learning.[59]Now the fact is that the test which Parker J actually applied in determining the case against F was tied to the word “requires”. The key passage, almost at the end of her judgment, reads as follows:
“In all the circumstances therefore I am satisfied that Q’s welfare throughout her life requires her adoption and I accept that the evidence for that, if not overwhelming is certainly very much stronger than it was at the inception of this case.”
It is clear, as we read her judgment, that Parker J was here correctly using the word “requires” in its true statutory and Convention-compliant sense. There was, in this respect, no error of law. And, as Ms Rowe correctly pointed out, Ms Ball’s complaint that Parker J misdirected herself by making the order even though the evidence was not “overwhelming” cannot succeed in the light of what was said in Re P.[60]Given that M was consenting to Q’s adoption, that F’s consent did not have to be dispensed with, and that in consequence section 52(1) did not apply, it may be, as Black LJ pointed out during the course of argument, that Parker J was in truth setting herself an unduly stringent test. But that is not something of which F can complain. For the test which Parker J applied – does Q’s welfare throughout her life require her adoption? – is the test which would have been applicable as a matter of domestic law if F had had parental responsibility and, more to the point, is the test which would have been applicable as a matter of Convention law if F’s rights under Article 8 had been engaged. So, contrary to Ms Ball’s contentions, Parker J in the final analysis assessed F’s case by reference to what, on Ms Ball’s hypothesis, was in fact the correct test.[61]It follows, in our judgment, that at the end of the day nothing turns on the question of whether or not F’s Article 8 rights were engaged on either of the bases suggested by Ms Ball. There is, therefore, no need for us to decide whether or not Ground 1 is made out, and in our judgment it is better that we do not. Cases such as Anayo v Germany raise important and difficult questions best left for determination when the need arises and in the light of fuller argument than, understandably, we have had in this case.[62]If and insofar as it is suggested that the judge misunderstood or misapplied the welfare checklist we disagree. She did not.

Discussion: matters of fact

[63]We turn to the facts.[64]This is a case which presented the judge with a most difficult decision. Q, relinquished at birth by her mother, M, had for some time been placed with Mr and Mrs A who are loving and devoted adopters and to whom she had formed a deep attachment. On the other hand, Q’s father, F, married to another woman and with a child of that marriage, sought to have Q united with him in his care. In addressing the question whether to make an adoption order it is clear to us that the judge was guided by the fundamental consideration whether Q’s welfare throughout her life required the making of an adoption order. In adopting this approach we believe the judge cannot be faulted. She considered whether adoption was demanded rather than being merely reasonable or desirable. In our judgment this approach took full and proper account of any possible right of F or Q to family or private life.[65]The judge proceeded to assess whether Q’s welfare required the making of an adoption order having regard to all the considerations set out in section 1 of the 2002 Act. In the particular circumstances of this case, the judge rightly regarded the risk of physical harm to Q and M as being of major importance. Here the evidence was, in our judgment, compelling. Q was conceived in a relationship which was unacceptable to M’s traditional Muslim family and conducted in secrecy. When M realised she might be pregnant she ran away from home for fear of the reaction of her family and, in particular, her father, GF. Shortly after her pregnancy was confirmed, M took steps to have her baby adopted at birth. Although she returned to her home, she concealed her advancing pregnancy by wearing loose clothes and travelling to the other side of her town for her antenatal care. As soon as Q was born, she was relinquished for adoption because M genuinely feared for Q’s safety should GF become aware of or be forced to acknowledge her existence. M’s evidence, supported as it was by her actions and the evidence of F and an experienced police officer, drove the judge to conclude that refusal of the order would carry with it a significant risk of physical harm. In our judgment this conclusion cannot be criticised.[66]The judge addressed the issues of attachment and relationships with particular concern. She evaluated the conflicting opinions of the social worker and the guardian and assessed, in light of all the evidence, the risk of moving Q from Mr and Mrs A to F and his new family. She cannot be criticised for refusing to adjourn the case to permit the instruction of a child and adolescent psychiatrist in the light of the expertise of the professionals appearing before her, their united opposition to this proposal and the delay it would inevitably have caused. She had regard to the level of care and warmth offered by F and his wife to their own child and to the importance of natural ties. But she concluded that there was a high likelihood that F and Q would feel differently about Q from their own child, that they were unrealistic in their approach to the integration of Q into their family and that there was a significant risk that Q would not make an adequate transfer of attachment. In our judgment these findings are unimpeachable.[67]The judge also had careful regard to cultural issues. Mr and Mrs A, like M and F, are Muslims and have taken advice from their Imam that they can adopt Q. They have taken Q into their family and community and, as was submitted on their behalf, to their hearts. The judge rightly concluded that under Islamic law and tradition there would be no long term harmful consequence in adoption.[68]Although the decision facing the judge was undoubtedly difficult, we believe it to be apparent from her judgment that, as the case progressed, she formed a clear view as to whether Q’s welfare required her adoption. In her long and careful judgment, delivered ex tempore over some 3 hours, she anxiously considered all aspects of Q’s needs and welfare and concluded that adoption was indeed required.[69]In our judgment it cannot be said that the judge was plainly wrong. Indeed, having been taken in the course of this appeal through much of the material before the judge, we have formed the view that she was right.

Conclusion

[70]It follows, in our judgment, that this appeal must therefore be dismissed.

Order

Future Harm) [2001] 1 FLR 611.