"(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent). (2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied — (a) that the parent or guardian consents to the making of the adoption order, (b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c) that the parent’s or guardian’s consent should be dispensed with. (3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave. (4) The second condition is that — (a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, [which is satisfied in this case] ... (5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave. (6) The third condition is that the child is -- (a) the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or (b) is free for adoption by virtue of an order made under Article 17 or 18 of theAdoption (Northern Ireland) Order 1987 ."
"(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that — ... (b) the welfare of the child requires the consent to be dispensed with."
"(2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life."
"(4) The court or adoption agency must have regard to the following matters (among others) — (a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), (b) the child’s particular needs, (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person, (d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, (e) any harm (within the meaning of theChildren Act 1989 (c. 41)) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed and with any other person in relation to whom the court or agency considers the relationship to be relevant, including — (i) the likelihood of any such relationship continuing and the value to the child of its doing so, (ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child."
"There are many illustrations of this principle in the books. J v C is, at one and the same time, the classic formulation and the classic application of the principle. I was also referred by Mr Feehan to some words of Lord Templeman in In re KD where, shortly after the famous and much-quoted passage beginning, 'The best person to bring up a child is the natural parent,' he said, referring to the facts of the case (page 812): 'In November 1986 the welfare of K required that he should no longer see [his mother] because at the age of 3 years he could not cope with two competing mothers. By November 1986 K had been integrated into the family life of his foster-parents who had become mother and father to him; the family life of K and [his mother] was lost beyond recall.' 79. In YC, para 141, the Strasbourg court said this: '... once K was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant's care.' Further at paragraph 233 the President said: "
"My overall conclusion is that there is a very high probability of fairly immediate, and significant, levels of distress and trauma and a very real likelihood – just how high it is impossible to predict – that the placement would be put under such pressure that it might break down, which if it were to happen would carry with it a more than fanciful risk of catastrophe." 14. In Re W(A Child)2016 EWCA Civ. 793 during the course of giving the judgment of the Court of Appeal McFarlane LJ said at paragraph 66 as follows: "
"The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect anyECHR Art 8 rights which are engaged." 15. In the case of Re A and O[2017] EWHC 1293 (Fam) the President of the Family Division, Sir James Munby said in paragraph 46 as follows: "
“Having considered the legal, policy, moral and best practice guidance, it is essential that GT and BT have the opportunity of an adoptive family. GT and BT’s care plans have remained to be one of adoption (jointly placed) for a considerable period of time. Over the period of 12 months, family finding attempts have not been successful.”
“Dr Edwards concluded, “If GT and BT were not twins, I would be recommending separate placements for them as GT’s challenging and bossy behaviours do impact on BT’s abilities to express himself and he therefore tends to focus in on his love of mechanical objects and machinery, and withdraws from social interactions…Both GT and BT have significant learning difficulties and developmental delay and will have significant needs throughout their childhoods. Their long-term placement would therefore need to be fully aware of the high level of commitment that will be required, and the ongoing support that the children are likely to require from agencies and services throughout their lives””
“When observing them together there was very limited interaction (other than GT telling BT to “no talk”), and no real sense of a sibling relationship. However, they are twins, and the sense of loss in later years at being separated would almost certainly be more detrimental to their welfare than placing them together.” 53. The words omitted completely change the import and meaning of the quoted section of Dr Mair Edwards’ report. The social worker was not called to give evidence before me nor has she been given the opportunity to give an explanation. Therefore, I will not name her in this judgment. The prospects of this being an innocent omission are unlikely in the extreme. It is not an opening or concluding sentence that has been missed. It is a passage in the middle of the quoted passage from the report and the deliberate omission of some words was marked by three dots. Given also that the omitted section of Dr Mair Edwards’ report sets out an opinion wholly contrary to the ultimate recommendation of the sibling assessment, the only credible explanation for this omission is a deliberate act to mislead a reader of the assessment to conclude that the recommendation of separate placements for adoption was consistent with the opinion of Dr Mair Edwards. It manifestly was not. 54. I was informed by counsel for the children’s guardian that in another case, some years ago, the self-same social worker was alleged to have tampered with a document. I asked for the issue of the social worker’s role in drafting the sibling assessment to be referred to the Director of Children’s Services and to the Chief Executive of Herefordshire Council. The social worker had left the local authority in March 2018 but had later been re-engaged in some role on a zero hours contract. It was proposed, in the Adoption Support Plans, that this social worker would be carrying out life story work for the twins. The following day I was told by counsel for the local authority that her contract had been terminated with immediate effect. 55. The issue of separating the twins was considered by a child and adolescent therapist with the adoption team, in her report of12th April 2016 . On the issues of separation and future contact between the twins if the decision was made to place them separately she said: “Making the decision that twins should be separated is problematic. Although each child’s needs may be better met in separate families, they have been constant companions to date, and will find separation confusing and stressful. In addition they share a common heritage and history. The complexities of these children’s circumstances and individual needs should be considered at length and in detail, so that a decision can be made which will be of most benefit to both the children. If they are to be separated, it would seem vital that there is ongoing contact between them. Both children would find the separation difficult in the short term especially, and would need the reassurance of frequent contact. Ongoing contact would rely on two adoptive families both being willing to commit to this. If one child is adopted and one remains in foster care, then contact with the adopted sibling needs to be carefully considered, due to the link to the birth family. Separation would obviously need to be done with a carefully constructed programme that takes both children’s needs into account.”
“GT presents with many of the hallmarks of a child who has experienced inappropriate, neglectful, unpredictable and abusive parenting in her early years. Despite the clinically significant emotional (regulation), social and behavioural difficulties she presents with, there is not convincing evidence at this stage to support a diagnosis of any major psychiatric condition; her symptoms are best understood in the context of both specific and general developmental trauma (including neglect) and a global developmental delay. The disconnected way she relates to herself and associated relational problems serve to protect her from the impact of overwhelming feelings, at the cost of impaired functioning and development. Her early history, combined with her current presentation, place her at a very high risk for developing a major psychiatric condition in the future without significant and prolonged intervention (described elsewhere in this report). There are several protective factors in GT’s life – she can be a warm, enthusiastic and playful girl with a quirky sense of humour. She appears to have made significant progress in her current placement and can now sometimes use others to help her understand her own internal experiences. The increasingly secure relationship we observed with her prospective adopter is, itself a protective factor. However, as we saw during the course of the assessment, the progress GT has made is very fragile and she can quickly resort to primitive defence mechanisms such as disassociation to segregate intolerable mental states when she is in touch with difficult feelings or memories. It is likely that such defence mechanisms helped her to survive her early trauma. However, their continued use had led to significant disturbance in the development of a coherent self-construct, as she appears to have an only just emerging sense of self. Lack of a coherent sense of self is a significant risk factor in difficulties in the development of personality. It is possible that the global developmental delay observed is simply attributable to the neglect and abuse that GT received in her early hears, rather than having to evoke a more biological explanation. Given the availability of benign but clear boundaries in a context of love in her primary carer relationship, an continued assessment and intensive therapeutic input (described elsewhere in this report), this delay might be expected to reduce over time. Our understanding is that there had already been significant developmental catch up since GT came to her present care setting. However, it is impossible to say at this stage to what extent this is likely to occur, and in our view, it is quite likely that GT will retain some level of learning difficulty. At this stage we hypothesise that the autistic type behaviours observed during the assessment are primarily associated with GT’s disconnected states of mind and mistrust in the world/others. However, we recommend further assessment in the future.”
“As mentioned above, while BT and GT’s shared experience is important in relation to their identity, as well as their sense of continued connection, it is also marked by trauma and loss. There is some evidence that BT works to distance himself from that in the current contact and there is a history and complex and at times negative dynamics in their relationship with one another. It is likely that his would make living together and sharing resources very difficult for BT and GT and would set up the adults charged with this responsibility, with an extremely difficult task. GT and BT need to be able to regulate their experiences of connection with one another and with their early memories, which would be almost impossible if they were living as part of one family. Placing the children separately but supporting them to maintain a meaningful and ongoing relationship allows them to maintain their connection and positive relationship with each other into the future, while allowing them to develop their own life narratives and have space away from the trauma they shared. Our assessment of the prospective adopters’ ability to support the sibling relationship going forward is positive. There is evidence that both children have made significant progress in their current placements and are forming positive attachment relationships. To remove them from their current placements would, in our opinion, constitute a further severe developmental trauma and constitute significant harm… In summary, it is our view that the benefits of placing the siblings together is outweighed in this case by the likelihood that their high level of need could not both be met in one placement, that their separate placement but continued relationship offers them the best opportunity for recovery, and that removal from what the children have come to view over the last 12 months as their parents, their family and their home, would constitute further developmental trauma.”
“In our opinion, BT and GT remain very vulnerable and each child’s emerging sense of safety remains fragile. Direct contact with members of their birth family who they haven’t seen since before they moved into their current homes would likely undermine this progress and of the tentative sense of safety that they are each developing.” “While it may be that incidents of direct abuse were largely perpetrated by their birth father, the evidence in both children (of their current emotional functioning) suggests that neither parent was able to provide a consistent sense of safety. In addition, it is likely that BT and GT’s memories of their early years are of a bodily/sensory type and perhaps audio/visual but are unlikely to be coherent or autobiographical in nature. As such, there may be things that they would notice about their birth mother (such as the sound of her voice/the way that she smells) that triggers responses related to traumatic experiences, even if these actually belong more firmly to their memories of their birth father. On this basis, we can speculate that direct contact would likely be a frightening experience. Further, the trust that they are building in their carers to keep them safe and help them to regulate overwhelming negative affect would likely be profoundly undermined by this experience. We do not recommend that direct contact with the birth mother should be considered until the children are old enough to explore this possibility for themselves (probably in adolescence) and even then, this should be approached with caution. In the meantime, we recommend that annual letterbox contact is appropriate to maintain a link for the purposes of BT and GT’s developing identity.” “However, our assessment leads us to speculate that GT and BT might be more able to manage direct contact with their older siblings once their primary attachment relationships (with their adoptive parents) and their relationship with one another are more firmly established. This leads us to recommend that twice a year letterbox contact should be set up at this time (to include photographs if this is safely possible) and that the possibility of direct contact should be revisited in 2 years’ time. This contact reassessment should include a review of the quality of letterbox contact in the intervening period; an update on how settled GT and BT has each become in their adoptive families (for example frequency of emotional dysregulation, how they have managed minor difficult experiences or transitions, how they have been able to make and manage new relationship); an update on the circumstances of whichever birth sibling has requested contact (how settled they are in their own relationships, their emotional wellbeing, how close their relationships are with other birth family members and how well they would be able to maintain a level of safe confidentiality for example about the whereabouts of each twin’s adoptive family).”
“BT is a wonderful boy, full of kindness and enthusiasm. He wants to try everything and loves learning how to do things. He is happy and relaxed with us. We spend many days happily doing normal things that families do. Sometimes we just play and potter around at home together. Other days we might go out riding on our bikes or visiting family and friends. Sometimes, the court proceedings and conversations with the local authority, make it seem like our family life is constantly strained by BT’s behaviour and our ability to cope with it. In fact, this is far from accurate. Whilst BT’s behaviour has of course been very challenging, especially in the first months, we have in more recent months actually found most of our time with BT to be the family we wanted and expected it to be when we adopted. We feel that BT is also happy and feels like he is part of a family, living a positive family life. We think that BT needs and deserves a family life with the permanency and security that only adoption can provide. Over the last year we have developed trust and family life with BT and worked consistently to increase his sense and understanding that his new family with us is forever, and that we will always look after him. BT refers to us as a family, wants family hugs and draws pictures of us all together. He is bonding with, and embracing of, our wider families. He is excited and is starting to understand that they are now his family. BT loves playing with his cousins and chatting with aunts, uncles and grandparents. For example, one of his favourite things to do is to sing along to the radio, especially with his grandmother who he refers to as ‘nan’.”
“The level of BT’s violence was a shock to us and it was not something we were prepared for. It certainly took us a while to learn the most effective ways to respond to it (and we are still learning each day). We have tried to understand BT’s behaviours and it causes, appreciating that due to his early years and his unprocessed trauma, that BT is a child who can easily be triggered into a fight or flight response. We have and continue to work hard to make BT feel safe and to distract him and reassure him as needed to reduce the times he triggers. We understand that once in the ‘fight or flight’ response that BT is no longer using his rational/thinking part of his brain and is lashing out to protect himself, the most basic of instincts. We have been advised that at these times BT is functioning much more like a toddler having a meltdown and as such needs comforting, cuddling and containing. Where possible we do this with a cuddle and when necessary we wrap our arms around BT in a safe hold that keep BT and us safe. BT had always received from us the robust message that violence is not acceptable and he must not hit. He is very aware that it is not acceptable, the days when he has not hit, he will often at bedtime say ‘no hitting today’ and seem genuinely proud of himself.”
“Given the above, we are sad to say that we have very little trust in Herefordshire and feel apprehensive about working with them moving forwards. We are fully aware that so long as BT remains in our care, we will need to work with Herefordshire in the future. We want this to be a positive and meaningful relationship for BT’s sake. However, we think it may be necessary for work to be put into that relationship, including us and the social workers attending mediation or other type of relationship building exercise, before this can be achieved.”
“I am concerned that, in amongst the necessary legal negotiations and discussions, as well as those regarding GT’s needs, something of her personality is getting lost. I would like to take this opportunity to tell the Court about her. GT is not a child who is ‘easy’ to parent, but alongside the challenges is a fantastic, funny, caring, curious girl, who brings a great deal of joy and love into my life. She has a sunny disposition when she is feeling secure, and likes to see other people happy as well. She enjoys trying new things, and will take herself out of her comfort zone to get such experiences. GT is proud of her achievements, especially when she had put in a lot of effort, and it was lovely to hear recently that she encourages her classmates to achieve as well. Although she is sometimes hesitant to interact socially, she loves playing with other children, and frequently makes new friends at the play park. I am immensely proud of her.”
“Once GT was placed with me it became clear very quickly that GT was not a little girl who would throw a tantrum. GT would rage and these rages would last for a couple of hours. She would become physically aggressive and it can be difficult to manage these outbursts. This has resulted in me having to restrain GT, and GT’s shouting and screaming has led to the neighbours raising concerns with child protection agencies.”
“I have only known [A] and [B] for a short period of time but feel we have a good bond and are more than able to communicate with each other in respect of GT and BT. I would consider them friends. I am confident that this relationship will help us in the future to arrange contacts between our children. My vision for future contact is that contact should be fluid and it should feel like a normal family dynamic. I truly believe in the future [A], [B], BT, GT and I will be a quasi-family and we will be able to make contact arrangements between us.”
“I believe that an Adoption Order is the only Order which can provide GT with the security and knowledge that I am her parent and this is her ‘forever home’. It is crucial for GT’s development of trust with me that she feels safe and secure in my care. I feel if GT does not consider this her permanent placement she would not trust me and that her behaviour will destabilise. I fear a result of this would be that GT reverts to her defiant and oppositional behaviour which she has used as her survival mechanism previously. This behaviour, combined with GT’s continued growth in strength and size will mean I may find it difficult to cope and manage these behaviours in the future. Due to her learning difficulty and emotional wellbeing, GT is likely to remain a very vulnerable individual throughout her life. I am concerned that an alternative to adoption will not offer sufficient safeguards or protection from those who have previously caused her harm. I cannot see myself in a position sharing parental responsibility with the birth parents, even if the birth parents’ parental responsibility is notional. For GT her sense of belonging is very important. She identifies as GT [X] which is central to her emerging sense of self and allows her to feel part of a family, our family.”
“In the context of care proceedings it is not right to treat a local authority as in the same position as a civil litigant who raises an issue that is ultimately determined against him.The Children Act 1989 imposes duties on the local authority in respect of the care of children. If the local authority receives information that a child has been subjected to or is likely to be subjected to serious harm it has a duty to investigate the report and, where there are reasonable grounds for believing that it may be well founded, to instigate care proceedings. In this respect the role of a local authority has much in common with the role of a prosecuting authority in criminal proceedings. It is for the court, and not the local authority, to decide whether the allegations are well founded. It is a serious misfortune to be the subject of unjustified allegations in relation to misconduct to a child, but where it is reasonable that these should be investigated by a court, justice does not demand that the local authority responsible for placing the allegations before the court should ultimately be responsible for the legal costs of the person against whom the allegations are made. Since the Children Act came into force, care proceedings have proceeded on the basis that costs will not be awarded against local authorities where no criticism can be made of the manner in which they have performed their duties under the Act. Wilson LJ in In re J at para 19 disclaimed any suggestion that it was appropriate "in the vast run of these cases to make an order for costs in whole or in part by reference to the court's determination of issues of historical fact". But, as I have indicated, there is no valid basis for restricting his approach in that case to findings in a split hearing. The principle that he applied would open the door to successful costs applications against local authorities in respect of many determinations of issues of historical fact. The effect on the resources of local authorities, and the uses to which those resources are put would be significant. For these reasons we have concluded that the general practice of not awarding costs against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings. Judge Dowse's costs order was founded on this practice. It was sound in principle and should not have been reversed by the Court of Appeal.”
“In terms of what decision we want the court to make, we are clear that an Adoption Order is what is best for BT. We have been a family for a year now and our closeness and sense of family increases with each day. We want and have always wanted to adopt BT. Quite simply, he fits perfectly with us. We want to give him that permanent security for the rest of his life. For the first time in his life he has parents who will love and look after him forever. We are clear that only adoption will enable BT to have that. We don’t want BT to miss out on being adopted and having a forever family because of the flaws in other people’s actions. That would have a devastating impact on the rest of his life. Finally, we would like to make it abundantly clear that we do not consider it to be in BT’s interests to move to a different placement now. We cannot bear the thought of him having to go through another move, and how that would destroy his ability to form attachments and develop trust, and how much he would miss us and how much we would miss him. He is our son and we are his parents.”