V (Child) (Placement Order: Reduced Life Expectancy), Re [2022] EWFC 214 (B)

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2022] EWFC 214 (B)Barnet Civil and Family Courts CentreSt Marys CourtRegents Park RoadFinchley CentralLondon N3 1BQDate Monday, 27 June 2022
Before
HIS HONOUR JUDGE OLIVER JONES(In Private)LONDON BOROUGH OF ENFIELD Applicant
Between
MFV(via their Children’s Guardian) Respondents_________JUDGMENT

APPEARANCES

[1]This is an application in relation to a nine-year-old boy, V, who was born in 2012. The London Borough of Enfield is the applicant local authority and it is represented by Mr William Dean of counsel. The parents of V are M – she is the mother – and F is the father. They are both represented by their counsel, Mrs Sarah Vakil. V is represented through his children’s guardian, Ms Bernard, and represented by his solicitor, Ms Piccos.[2]This application is for a placement order in relation to V. The local authority’s plan is for V to be adopted by his current foster carers, and it is only by his foster carers that the local authority would seek him to be adopted. Although, in theory, a placement order would entitle the local authority to place V for adoption by any approved and matched adopters, the local authority have given a firm commitment in this case that there is no prospect of them seeking any other adopters besides his current foster carers.[3]The application is opposed by the parents and by the children’s guardian. In addition, the guardian has raised an issue about changing V’s name. If V does become adopted by his carers, they seek as part of any adoption application to change his surname so that it is the same as theirs. The children’s guardian has suggested that if the placement order application is refused, V’s name could, nonetheless, be changed to reinforce his sense of being a part of the foster carer’s family.

The Background

[4]When V was born, he was an extremely unwell baby. He was diagnosed with a complex cardiac abnormality. His heart is malformed. The condition is untreatable and, as a result, his life expectancy is sadly limited. The medical opinion shared at that time was that V’s condition meant his life expectancy could only be measured in weeks or possibly months. The issues with V’s heart had not been identified during the pregnancy and I can only imagine how painful and traumatic it must have been for V’s parents to learn the news that their new baby had such a serious condition.[5]On 9 November 2012, the mother was told that V’s life expectancy was only one month. She was asked to discuss with her husband whether the family would take V home to be cared for by them. Sadly, the parents felt unable to do so. On 12 November, they attended a discharge planning meeting. At that meeting they were told that V had a 1 per cent chance of survival and they signed a Do Not Attempt Resuscitation form. They indicated they would not be taking V home and, in effect, at that point, they relinquished V, indicating that the local authority could do as it sees fit.[6]V was later discharged from hospital and accommodated by foster carers on 16 November 2012. Those foster carers were G and H, who remain V’s carers to this day.[7]On 13 December 2012, the local authority applied for a care order and, on 20 December, this court made an interim care order, which was not opposed by V’s parents. Initially, V’s parents did not feel able to take up any contact. However, as V came to defy the medical expectations about his condition, his parents’ approach to contact changed and, in January 2013, V started to have regular weekly contact with his family, including on occasions his older brother who would come along also. V’s mother, in particular, and his brother, have been consistent with contact. Unfortunately, his father has not attended with such regularity.[8]On 17 April 2013, HHJ Mayer made a care order in relation to V. Again, this was not opposed by his parents. The plan was for him to remain in long-term foster care and to have regular contact with his family.[9]By the end of 2013, the Do Not Resuscitate plan was revisited. It was discussed with the paediatrician and the parents and varied so that, instead, everything would be done to keep V alive in the event of an emergency, except for intubation.[10]In the meantime, since then, V has continued to defy those early medical expectations. He has grown and developed significantly, despite his heart condition and despite the low levels of oxygen that are supplied to his brain. I know that his parents hold on to the hope that something may yet change, that a new treatment or operation may arise which would improve V’s health and, if that happened, they would want to care for him. Unfortunately, to date, medical science has been unable to provide an answer to his condition, which remains untreatable.[11]There has been discussion of V being adopted by his foster carers for many years. In 2014, V’s foster carers expressed a wish to adopt him, and the professional network at that time were of the view that, given his progress, he deserved the opportunity to be adopted. Those plans were shared with the parents, who were opposed and preferred for him to remain in foster care until a treatment or operation can improve his prognosis. The issue of adoption has been regularly revisited and the parents have always remained opposed.[12]In 2015, the local authority’s agency decisionmaker (“ADM”) considered the issue of adoption and did not approve the plan for adoption. The following reasons were given: that there was ongoing weekly contact between V and his mother and his sibling, W, that V is not in care due to any deficiency of parenting, but because his parents could not contemplate parenting a child with a serious health condition who would be unlikely to survive his first year of life, that V’s family and the foster carers are of different nationality and faith, the latter being particularly important because of the need to consider appropriate funeral arrangements, that the notion of adoption, with its irrevocable ending of the child’s legal relationship with the birth parents does not fulfil the threshold of “nothing else will do”, that the status quo under a care order is not significantly detrimental to his long-term or short-term care and it did not warrant an adoption and, lastly, the ADM suggested the situation would be better dealt with through a special guardianship order.[13]Nonetheless, the issue of adoption remained on the agenda and, in 2018, the matter was referred once more to the ADM. I understand a different person by then was conducting that role, and a different decision was taken. The plan for adoption was approved and the ADM gave the following reasons: that V had exceeded his life expectancy and his prognosis is much improved, that he has lived with his current carers throughout his life and sees them as parents, that his birth parents feel unable to care for him, that V deserves the same opportunity to have a permanent family as any other child, that an SGO would not suffice because it does not give V a legally permanent family, not only throughout childhood, but as an adult, that the security of adoption would ensure the focus remains on V rather than the adults around him and that the previous plan for adoption was not agreed on the basis that V was not expected to live beyond his early years; the situation has now changed and V’s care plan needs to reflect that he will live a far longer life than first anticipated.[14]That ADM decision was given on 13 May 2018. The local authority, however, did not submit its application for a placement order until 23 December 2020, more than eighteen months later.[15]The court was significantly troubled by this delay in issuing its application, and sought a statement from the ADM to explain it. Initially, the court was provided with a statement from Matthew Gratton, the service manager for the Joint Service for Disabled Children. His statement set out that the application was delayed due to concerns around domestic abuse relating to a member of G and H’s extended family who did not live with them at the family home. He described an eighteen-month search to identify suitable training around domestic abuse to support the foster carers’ understanding. That search had limited success because no face to face work was ever arranged, although online training was. The local authority completed a risk assessment in July 2020 and was satisfied about the issue and, subsequently, it then prepared an Annex B report which was completed in December 2020. That statement from Mr Gratton, no doubt intended to be helpful, was not from the ADM, as had been directed.[16]I intentionally required the statement from the ADM for a reason, and it is not appropriate for the local authority to reinterpret the court’s directions into what it considers may be more helpful. In any event, Mr Gratton’s statement did not answer the second of my questions, which was as to whether the local authority was aware of its duties under section 22 of the Adoption and Children Act 2002 and what will be done in future to ensure it complies. I was particularly concerned by the delay in issuing the application because that was a substantial breach of the local authority’s mandatory duty to apply for a placement order after the ADM’s decision to approve the plan for adoption.[17]I renewed the direction for a statement from the ADM and Debbie Michael then provided it. She had not been the ADM who made the decision approving adoption for V. Her statement provided more information about the background to V’s case and the previous ADM decisions. She confirmed that the local authority is aware of its duties under section 22 and recognised the delay, but considered that it could not make the placement order application until completion of the domestic abuse work. She explained that an escalation process has now been implemented, with monthly reviews, to prevent delay and to better consider resources that could be utilised much sooner in future.[18]For a local authority to take more than a year and a half between an ADM decision and making a placement order application is completely unacceptable. I am glad that the local authority is now taking steps to avoid this sort of delay arising in any other child’s case. The local authority should have issued the application shortly after the ADM decision. If circumstances changed, as they did, the matter needed to be re-referred to the agency decisionmaker for the decision to be reviewed at that stage, rather than simply holding off on making the application. The time that passed while the local authority struggled to arrange the domestic abuse work and to complete its application was unacceptable and in breach of its duty under the Act.[19]Unfortunately, the delay meant that when V’s case was eventually brought in, it was during the Covid-19 pandemic. The administration of the court, by then, was struggling considerably and, regrettably, the placement order application was not issued until 23 March 2021.[20]The matter came before me, and it has been before me for all hearings. On a number of occasions I have made directions.[21]On 28 June 2021, the foster carers lodged an application to adopt V. At a hearing the following day, on 29 June, it was confirmed that the foster carers, having received independent legal advice, did not wish to apply for a special guardianship order for V. The parents, in response to the applications, sought to discharge the care order as they opposed V being adopted and, at that stage, understood no alternative was being offered by the local authority. They did, however, make it clear that they would support V remaining in the care of his foster carers under a care order. I directed a parenting assessment by an independent social worker of the parents and timetabled the case for an issue resolution hearing or early final hearing in October 2021.[22]On 6 August I heard separate directions in relation to the foster carers’ application for an adoption and I consolidated the two applications.[23]By the time of the issue resolution hearing on 12 October 2021, the case had fallen into further delay. At that time, the parents were in Bulgaria while the father sought medical treatment. The parents indicated their intention was to return to England soon and to complete the parenting assessment for which they had been absent. A further issue had been identified by the children’s guardian, which was that the local authority’s Annex A report on the foster carers was dated March 2019 and approved them for a child between the age of zero to six years old, whereas, by then, V had reached the age of eight.[24]The case was listed for a further issue resolution hearing on 7 December 2021. The foster carers attended at that hearing, which was conducted remotely. They informed the court that they wished to adopt V, but through the agency route. They did not wish to pursue their application for an adoption order. They confirmed again that they did not wish to become special guardians. They also indicated they did not wish to give evidence or participate in any further hearings. Most importantly of all, they confirmed, and it is stated on the face of the order, that, for the avoidance of doubt, they will continue to love and care for V whether or not the local authority’s application for a placement order is successful and/or an adoption order is ultimately made.[25]The case was then listed for a final hearing. Unfortunately, because of the delays the court is now experiencing in all cases, I was not able to list it until June 2022, and I listed it to start on a range of dates, with the first date being 20 June.[26]Subsequently, the ADM has updated the ADM decision on 26 November 2021 and confirmed the plan for adoption in the light of the independent social worker’s parenting assessment of the parents. That decision records that it would not be in V’s best interests to be removed from his current carers, where he has been since birth and is an integrated member of the household, that G and H have developed expertise in managing V’s health needs, which the birth parents would not be able to manage, that G and H have maintained their strong wish to adopt V, which will give him the permanency that he needs, and that, although it is clear that V has positive relationships with both his foster family and his birth family, he has stated his wish to be adopted by G and H. The ADM also recommended further discussion with G and H to explore V’s funeral arrangements when he passes, to take into account the birth family’s views, wishes and feelings.[27]When I commenced the final hearing on 20 June, the parents were not in attendance. I was informed that the mother was unwell and unable to attend, either in person or remotely, and I was told the father had gone to work. Mrs Vakil indicated that she had taken specific instructions and was not seeking an adjournment. I discussed with the advocates the ambit of the hearing. It was agreed that there were no factual disputes and that the case revolved around differing professional opinions as to the welfare decision for V. I was alerted to the need for the social worker to provide some updating information, and this was directed in a short statement. The case was not due to sit the following day, which allowed time for the social worker to produce the statement and for Mrs Vakil to confirm her instructions in the light of that update.[28]It was apparent to me also that there was no real prospect that I was going to be hearing evidence from the foster carers and, indeed, it seemed highly unlikely that I would hear evidence from the parents either. In the circumstances, I took the view that the matter would be appropriate to be heard by submissions. The parties did not seek to dissuade me from that course and I was also able to give them that additional time to prepare for those submissions.[29]The social worker’s updating statement contains a very sad update about V’s health, which is deteriorating. There have been a number of ominous developments. He now has to use oxygen at school and at home. He now has to rely on his wheelchair during breaktimes at school, and the distance he can walk has decreased. He has started to suffer from migraines. V is aware about his condition and is likely to have an awareness about what these symptoms may mean. When he suffers migraines, these are described as incredibly anxiety-inducing for him, and he becomes very distressed. The social worker witnessed such an event and it took over an hour to calm V down. He must have been very frightened.[30]Dr Daniels, the consultant paediatrician who has been responsible for V’s care throughout his life has explained that children with similar heart conditions often develop a condition called Eisenmenger’s syndrome, which happens when the pressure on the right side of the heart becomes greater than on the left. Dr Daniels has stated that it is inevitable that as V grows physically his health will deteriorate. The medical opinion is that V is likely to drift into Eisenmenger’s syndrome over the next two to three years. It is painful to say, but with the appearance of the migraines and the decrease in his mobility, it sadly appears that V may have reached the beginning of that process.[31]When I resumed the case on 22 June, the parents did not attend. I was told that the mother had been spoken to and she still sounded ill. No explanation was offered for the father’s non-attendance.[32]I heard submissions from all parties. May I express my sincere gratitude for the sensitivity, clarity and skill that the advocates have brought to this very difficult case. I have read a bundle of 461 pages. In addition to the social worker’s updating statement, I have also received a final statement from the parents, copies of LAC review minutes from 18 May 2021 and 8 November 2021 and health assessment reports on V dated May 2021 and May 2022. I have received position statements from all parties and a bundle of authorities. Mr Dean, in particular, gave me a careful exposition on the legal tests to be applied to the court’s decisions, which was accepted without demur by all of the advocates.[33]This application is made under the Adoption and Children Act 2002. My paramount consideration is V’s welfare throughout his life. I suspect that when the Act was drafted what was being held in mind was the impact on the welfare of the potential adopted person, not only during childhood, but also during adulthood as well. As I observed during the hearing, the court’s consideration of that phrase, however, takes on a profoundly different sense when considering the life of a child that is likely to be short and may not even reach adulthood.[34]As to V’s ascertainable wishes and feelings regarding the decision, considered in the light of his age and understanding, V’s views have been inconsistent. In the first social work statement he is recorded as saying about adoption that, and I quote:
“It is a hundred thumbs up from me, as long as I still get to see my tummy mummy.”
[35]V considers his foster carers to be his parents, and his birth parents to be his “tummy parents”. He wants to continue seeing his mother and his siblings monthly. In the social worker’s statement dated 10 May 2021, the social worker records that V would like to be given the foster carers’ surname and also to be given a middle name which refers to his foster father, G.[36]I have considered the report of Ms Harold, the independent social worker who conducted the parenting assessment of the parents. Her report ultimately is negative in terms of them caring for V, and that is an opinion that they have not sought to challenge. Ms Harold reports that V, talking about his birth mother, said:
“Mummy is nice. She buys me toys and clothes, like a Spinosaurus.”
He also described enjoying playing computer games with his brother, W.[37]Ms Harold observed what she described as a significant shift in V’s demeanour when his foster sister, F, entered the room. F is a twenty-three-year-old who has Downs Syndrome and is partially deaf. She was adopted at a young age by G and H, and she has always been present in the home as long as V has lived there. Ms Harold observed that F was keen to talk about her own adoption and V made remarks about F having only one set of parents as her birth parents had died. He also commented that he did not like F saying things like “my house”, “my car”, rather than using the word “our”.[38]Both Ms Harold and, subsequently, the guardian, considered that V’s need to belong to G and H has come to the forefront since he has gained an understanding about F’s adoption and this has been discussed more openly at home. V told Ms Harold that he wants to share the same surname as G & H so that he could – and I quote – “match the rest of the family”. He later said, and I quote:
“When I am with Mummy, then I will be V [birth surname].”
Both Ms Harold and the children’s guardian share the same conclusion that V feels close to and a sense of belonging in both of his families.[39]When the guardian met V on 5 May 2021, she described him as articulate and charismatic. She observed the significant attachment that he has with G and H, who he calls “Mummy” and “Daddy”. She said it is clear that V feels loved, wanted and belonged by G and H. V introduced her to the foster carers as, “This is my mummy and this is my daddy.” Asked about his family, he explained he also has his sister, F, and he said also, “I have a tummy mummy, daddy and brother too”, and when asked about them, he said, “I like seeing them and they love me very, very much.” He later said he looks forward to his time with his mummy, his older sister, who is eighteen, and W, his brother, who is thirteen.[40]The children’s guardian met with V again at school on 29 April 2022, that is almost a year later, to see what his understanding of the adoption process was. She considered that V has a very limited understanding of what adoption means, which is understandable given his age. He said, and I quote:
“Adoption is when a baby is born and the parents cannot look after them, so the baby is looked after by people like Mummy and Daddy----”
Meaning G and H. “-- and then adopt him.”[41]Asked about being called V [foster carer surname] or V [birth surname], he said:
“Please can I be adopted? V [foster carer surname] sounds better.”
[42]The guardian saw V again on 10 May 2022 and reviewed some earlier work about his wishes. His answers on this occasion were fantastical and playful, wishing for the ability to turn into Godzilla. His wishes for the future related to seeing different exotic animals, and when it came to family, he said, “I don’t know” and did not expand further. The guardian saw him again a few days later, on 14 May, during his contact with his birth family, which I think must have been in his parents’ home, and she reports, and I quote at length now:
“As soon as V saw me, he said, ‘I have my wish for my family that I wanted to tell you, but I didn’t want to tell you at my other house. I wish that my mummy, Mummy F, and my daddy could stop arguing, because it’s very loud and it makes me want to run away. I wish they never argue, because then it will be peaceful and quiet.’ I asked V how long the arguing had been happening for and he responded, ‘Probably before I was born.’ I did not press V for any further information, however, V’s brother and mother were both present when V told me this information and appeared concerned. V’s brother said to V, ‘You’ve never told me this before, bro, and we tell each other everything.’ V did not respond. I told V that it was positive that he had told us this now so that we can talk to his foster carers about this. I have since updated the social worker and expressed that further explanation is likely needed since it is something that is clearly affecting V which appears long-term and something he does not feel comfortable with talking about openly.”
[43]When I consider the evidence about V’s wishes and feelings, what emerges is a nuanced and complicated situation. It is clear that V’s primary attachment is with his foster carers, particularly with H. However, he also has important bonds with his birth family, in particular his mother and his brother. Although V does refer to G and H as “Mummy and Daddy”, he does on occasions refer to his mother not only as “Tummy Mummy” but also, on other occasions, just as “Mummy”. It is plain that V feels loved and belongs in both families. A number of professionals have observed warm loving interactions, as well as V’s own description of feeling very, very loved.[44]V’s relationship with his father is far more complex. The father has struggled with V’s condition. The father also has health problems with, as I understand it, a very painful back condition. His engagement with the assessment process and his attendance at contact has not been reliable. That is surprising given that V visits the family home for contact. I have formed the impression that the father has been avoiding seeing V. This appears to be something that V has picked up on. He has suggested that his father may have moved out and that he has not seen him for about ten contacts. It was quite a while ago he made that suggestion. More recently, V has started moving the picture of his birth family that includes his father behind the curtain in his bedroom.

V’s Needs

[45]V has a serious and life-shortening condition. He needs high quality care that is able to ensure that his medical needs are suitably met. G and H have demonstrated that they have a high level of expertise in meeting V’s medical needs. As Dr Daniels indicated to the social worker, H has been “the most fabulous advocate for V’s health needs”. It was she who sought a second opinion when the team at Great Ormond Street Hospital considered that there was nothing else that could be done medically, which led to a referral to the Evelina Children’s Hospital. Dr Daniels said:
“I do think, without [H’s] efforts, V possibly would not be here.”
[46]He stated that Carol and her family have given V incredible stability, supporting him through complex medical procedures. In marked contrast to H’s ability, when the local authority has discussed with V’s parents about medical interventions for V, they have been unable to engage meaningfully in the discussions and it is believed that this is because they find the subject too painful to be involved in.[47]Death is an inevitable part of life, but V is in the terrible position of being a child who knows he is going to die. He is very anxious about this and can become extremely upset, particularly at times such as when he has a migraine. He needs a great deal of reassurance at these times and given that he has always lived with G and H, they are the people he needs most in those difficult times.[48]Generally, he needs and receives consistency and love. He gets this from G and H, and he also gets it from his mother, his brother and his sister. He does not appear to get it consistently from his father, who has struggled with his own feelings of pain and grief and has often not been available for contact.[49]As to the likely effect on V throughout his life of having ceased to be a member of the original family and become an adopted person, if V becomes an adopted person he would legally become part of G and H’s family. He already has a sense of belonging within that family, but it would be enhanced. The difference in the position within the family of him compared to F would be levelled. I doubt it will stop F from saying things like “my car” and “my house”, but it may provide more reassurance to V that those are his things too. V’s name would change. He would become V [foster family surname], which is in line with his wishes and feelings. On the other hand, it would extinguish his legal link with his birth family. At his age, his sense of identity is still developing. He would become a child in a family which is not culturally or religiously the same as his birth family. His religious heritage has been respected. For example, he has eaten in accordance with his religion practices, but he has also been taken to the place of worship for a different religion each weekend and attends a primary school which has a different religious basis to his own.[50]If V was adopted, the indication is that the contact arrangements with his birth family will continue. V wants to continue to see his mother and his brother in particular, and G and H have indicated they will respect those wishes. I do not know whether V’s father will avail himself of contact at some point, but that is also open to him. If I make a placement order, the local authority’s duty to promote reasonable contact with the birth family would be suspended, and if an adoption order is made it will be extinguished entirely. It would be open to me to make a contact order alongside any placement order, and potentially alongside an adoption order, should that point be reached, which would reflect the intentions of the parties and may provide some reassurance to the birth family.[51]I do not know how the birth family will react if I make a placement order. They have not threatened it, but there is the potential in this case that if the placement order is made, the birth family may withdraw further from V’s life, given that V’s father appears to have already withdrawn to some extent. In their unsigned final statement, which is a joint statement from both parents on the face of it, the parents say that they do not want V to feel a sense of rejection from them should he be adopted. They also seek an increase in contact given that V is now getting tired more easily. It is hard to believe that request comes from the father rather than from the mother. The statement, unfortunately, does not deal with the father’s absence from contact.[52]V’s carers are quite old which, given V’s shortened life expectancy, may not be a problem. However, V has shown an ability to defy medical expectations in the past and it is possible that he may do so again in the future. There is no current prediction given by the medics involved in his care as to how long V now will live, and it is possible that he may outlive G or H. They have, sensibly, considered a contingency should they struggle with his care, and one of their adult daughters, E, who currently lives in Greece, plans to return to this country and care for V if it is needed. She has a very close relationship with V and travels regularly back to see him every four months.[53]One difficult consideration in this case is what will happen when V is coming to the end of his life and when he dies. Under the care order, there has already been a discussion between the local authority and the birth parents in relation to what will happen and a plan has been set out in the November 2021 social worker’s statement. That plan is built around V’s parents’ wishes for a service their place of worship, for that place of worship to collect V’s body from the hospital or from the home and for a funeral within that religion to take place within two to four days, which would be open to everybody, and then V would be buried.[54]If an adoption were to take place, plans are not yet determined. G and H have indicated that they would discuss with the birth family what the birth family would like and come to an agreement that would satisfy both families and, if necessary, they could have two services to make sure everyone who loved V would feel they were able to say goodbye in a way that is meaningful to them.[55]The local authority, in response to questions that I asked during Mr Dean’s submissions, indicated that if the court approved a placement order application then these issues could be looked at before the adoption order is sought. If V were to be adopted, at the moment it is not clear that the plan for what happens when V dies has been fully worked out. If an agreement is not reached, and there is no certainty one would be, it would mean that the adopters could simply decide what happens. The local authority would not hold parental responsibility, and though they may seek to assist, they would not be obliged to. The birth parents would legally have no say and no recourse to bring the matter before any court if their wishes were not being respected.[56]I am mindful that my consideration in this case relates to V’s welfare throughout his life. I am not aware of any case law that suggests that “throughout his life” should also include the arrangements after his death; however, I will leave that as a moot point and, instead, consider that, at a time of high emotions and grief, when V’s life is coming to an end, the important adults in his family may be distracted or deterred by difficult negotiations or disagreements about how to deal with his funeral. If that were to happen, I consider that that may impact on V’s welfare at that time and, in this way, I consider that these issues are relevant to his welfare throughout his life.[57]If V were to be adopted, it would mean the end of the local authority’s role in his life. The local authority would no longer hold parental responsibility. There would be no legal requirements for LAC reviews, statutory visits or LAC medicals. However, he would continue to be a child with a disability and entitled to local authority support. Regular medical appointments are, in any event, a significant part of V’s life.[58]I should record also that the local authority, in V’s case, has been able to maintain an impressive degree of social work consistency. Too often I hear cases where children and their carers and families have had to cope and adapt to dealing with multiple different social workers, with all of the disruption and potential for misunderstanding that that can bring. In V’s case, he has only had two social workers throughout his entire life, and the first of those two social workers remains involved still, in a management capacity. That is greatly to his benefit and I am grateful that consistency has been given in this way. It is a credit to both social workers involved.[59]It does mean, in my judgment, that the impact to V of ongoing social work involvement in his life is unlikely to be detrimental. He is well used to his social worker, there are good relationships and I do not anticipate, on what I have read, that the involvement of Mr Palmer, whether it is with V or whether it is with his carers or indeed his parents, creates any undue difficulty. I have also read, for instance, of how much V enjoys seeing other professionals involved in his care. These are a normal part of his life and likely to remain so. I consider the impact of social work involvement on an ongoing basis to be unlikely to be a detriment to V; indeed, it may be a positive benefit.[60]I have thought about the impact on V of feeling different, of being a child in foster care, rather than a child of a family. That is an aspect that is often considered in cases relating to adoption. In his case, he is a child who already is very different from the other children at school by virtue of his condition and his difficulties, in particular, with mobility and how energetic he can be. He is, nonetheless, a remarkable boy and his charisma, I suspect, stands him in good stead amongst his peer group. Nonetheless, by virtue of his condition, he is a child who is already very different and I am not sure that being a child in care, as opposed to being an adopted child, is a major point of difference compared to the day to day realities of V’s life.[61]I have heard that G and H sometimes have to explain that they are the foster carers for V, for instance when dealing with unfamiliar medical professionals. This, no doubt, is exacerbated by the fact that they have different surnames, that the ages are quite far apart and they physically appear quite different. It is suggested that adoption would avoid those awkward interactions. I do not know how often they arise. I suspect the majority of V’s appointments are regular appointments with known professionals. I have not heard from G and H directly about this issue, but when I think about the sort of situations where this might arise, whether it is a GP receptionist or a dentist or whatever it might be, these are straightforward interactions that can be quickly set straight. I suspect that even if he were to become an adopted person, the same enquiry is likely to be made by those people that do not know. What would change would be the explanation, that he is their adopted child, as opposed to their foster child.[62]If V were to become adopted, he and his carers would benefit from the security of knowing that he will remain with his foster carers. He would indelibly belong within that family. On the other hand, the evidence that I have read suggests that he already feels and has established a real sense of belonging with them.[63]I have dealt with his age, his sex and his background.[64]As to any harm (within the meaning of the Children Act 1989) V has suffered or is at risk of suffering, if he were to be moved from his current carers, that is likely to be harmful to him because of the disruption to his care but, in particular, because of the impact on him emotionally. I am glad that no one is suggesting he should live anywhere other than with G and H.[65]As to the relationship which V has with relatives, with any person who is a prospective adopter with whom he is placed and with any other person the court considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child’s relatives or any such persons to provide the child with a secure environment in which the child can develop and otherwise to meet the child’s needs and the wishes and feelings of any of the child’s relatives or of any such person regarding the child, I have already discussed the important relationship between V and his foster carers and their family, including E and F. It is, in my judgment, essential that V continues to have those relationships, and that those relationships hold the highest value for V. G and H love him and are dedicated to him and his care irrespective of the court’s decision, and V feels he belongs within that home.[66]As to V’s mother, and in particular his brother, W, those relationships are also important to V. He feels a sense of being part of both families, the foster family and the birth family. He enjoys that benefit through the contact that he has with his mother and his brother and, more recently, his older sister. I have read the children’s guardian’s account of V showing a different side when with his birth family, because his siblings are younger and closer to his age, and he is described as being more interactive and energetic with his brother and sister, as well as, at times, cuddling them, and he has been observed stroking his mother’s face and kissing and cuddling her. V enjoys this contact with his birth family and looks forward to it.[67]I have already discussed the father’s absence from contact. I should have explained also about his sister, who is now eighteen and grew up abroad. She has only had contact with V since she moved to this country about three years ago. Initially, there were difficulties as she and V did not have any common language. However, the reports about her contact with V are plainly positive and they enjoy seeing each other.[68]There is a strong likelihood that V’s relationships with his mother, brother and sister will continue even if a placement order is made. It is difficult to know to what extent he is going to continue to see his father, but the history, as well as the father’s opposition to V being adopted, suggests that, in my judgment, a placement order may further reduce the prospect of V continuing to see his father. I do not know quite how the dynamics of the household work, but it may also be that if a placement order is made, that would, within the family group, put pressure upon those that are having contact with V to cease to do so.[69]The parents accept that they are unable to care for V and that he needs to remain with G and H. They have never undermined the placement at all. They are complimentary and supportive of G and H’s care and commend how well they have looked after V. I am particularly glad to say that the mother and H have demonstrated that they are able to communicate respectfully and have done so now over many years.[70]As to their wishes and feelings, it is clear that V’s parents and brother do not wish for him to be adopted. The views of his sister are not recorded. In contrast, G and H plainly do wish to adopt V.[71]There are two realistic options before the court: making a placement order, approving a plan for adoption, or refusing the application, which will maintain the status quo of V being fostered by G and H, with the local authority sharing parental responsibility.[72]Unfortunately, in this case, the option of making a special guardianship order is not available to the court. That was an option that the first ADM was keen to promote. It has been explored with G and H on a number of occasions. They have received legal advice and they are clear that they do not wish to seek such an order because it does not provide the stability that they seek, nor give the support that they would need.[73]The local authority considers that adoption provides a greater sense of permanency and points out that an SGO would run out when V reaches eighteen years old. The social worker’s evidence argues that it does not place V’s wishes at the centre of the process, and instead seeks to find a middle ground between the parties, and the social worker points to F’s pride at being adopted by G and H and suggests that V would not achieve the same benefit from an SGO.[74]I have taken into account the cases that Mr Dean has referred me to, in particular Re B-S [2013] EWCA Civ 1146 and Re B [2013] UKSC 33. The court was also referred to the words of McFarlane LJ in Re W [2016] EWCA Civ 793: the “nothing else will do” phrase is not a “hyperlink providing a direct route to the outcome of a case”; and further at [68] and [71]:
“Since the phrase ‘nothing else will do’ was first coined in the context of public law orders for the protection of children by the Supreme Court in Re B, judges ... have cautioned professionals and courts to ensure that the phrase is applied so that it is tied to the welfare of the child as described [in paragraph 215 of Re B]. The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, [the phrase] is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s1). .... “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 any ECHR Art 8 rights which are engaged.”
[75]I have also considered the case of Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983 in which the President, Sir James Munby gave guidance as to the proper approach for the court to take:
“The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular prosed adopters. There is no need for the prospective adopters to be joined, for it is the children’s guardian (who will be aware of Mr and Mrs X’s stance and can, if necessary, address their suitability) who has the task, indeed is under the duty, of subjecting the local authority’s care plan to rigorous scrutiny and, where appropriate, criticism.”
[76]The advantages of the plan for adoption in this case are well set out. It will enhance V’s sense of belonging with G and H. That may provide reassurance as his health continues to deteriorate. It will reduce the role of social services in his life and reduce the amount of meetings and appointments relating to him to some degree. It will also unambiguously place decision-making for V’s medical treatment, including end of life and funeral decisions, in the hands of G and H.[77]It is suggested by the local authority that it is in line with V’s wishes and feelings, although those wishes and feelings must be considered in the light of his age and understanding, and he does not appear to have a full understanding of adoption and his wishes to continue to have his birth family play an important role have also been made clear by him. In a similar way, he has expressed his wish to change his name to the foster family name, but also his wish to have the birth family surname when he is with his birth mother.[78]The disadvantage of adoption is that it will sever the legal relationship between V and his birth family. These are important, loving and well-established relationships, particularly with his mother and brother. It means that the birth family will have no say about V’s end of life care, albeit I recognise and acknowledge that they have struggled with these sorts of decisions in the past. I do not anticipate that G and H would renege on their assurances about contact between V and his birth family, but I can think of difficult decisions needing to be made about contact and how to balance V’s anticipated reduction in energy and increasing difficulty to engage with also his need to see his birth family.[79]In these circumstances, which no doubt would be distressing for everybody that knows and loves V, if he were to be an adopted child, there would be no social worker allocated to advise the parties and help them find a way through, and there would be a very limited ability to return the matter to court by the birth family, who have language issues and are likely to struggle to obtain legal aid.[80]One of the advantages of maintaining the status quo is that the current situation is working. V is enjoying the benefits of being part of his foster family with G and H, and also the benefits of being part of his birth family. The role of the social worker may have reduced over the years, as the foster carer and the mother have increasingly been able to work together, but when it comes to end of life decisions and funeral arrangements, that additional support may be invaluable.[81]The disadvantage of the status quo is that it does not reinforce V’s sense of belonging within the foster family, which V is plainly keen to do. It also prolongs the role of social services on a statutory basis, which may be unnecessary, at least at the moment.[82]When I factor in all these advantages and disadvantages, I reach the conclusion on this difficult and sensitive case that I should refuse the placement order application. I consider the advantages of reinforcing V’s sense of belonging within his foster family are outweighed by the impact of ending his relationship with his birth family. While I recognise that the prospective adopters would encourage contact and would listen to the views of the birth family, I do not consider that this order would be in V’s best interests throughout his life. In particular, as his health continues to deteriorate, I consider that the additional support of social services being involved may be invaluable to assist both the foster and the birth families in making decisions whilst also coping with profound grief and loss.[83]I consider that what is in V’s best interests throughout his life is to continue to enjoy the benefits of the two families that he is an important part of. The impact of an adoption would be to extinguish his legal ties to one of those families, and I consider that to be disproportionate and unnecessary when considering all of the circumstances and his welfare throughout his life.[84]In my judgment, it is regrettable that the option of an SGO is not available to the court. That would have provided a means to enhance V’s sense of security in the care of G and H. It would give them overriding parental responsibility, which would assist with medical decisions, at least to some degree, and it would free them of having to run significant decisions by the local authority, but it would also enable V to retain ongoing legal links with his family as well, which not only impacts on contact, but would mean that they would retain a voice and a means of recourse should they need it in the case of difficult disagreements between them and G and H. However, I am in no position to simply impose such an order.[85]So the placement order application is refused. I do, however, want to say that I do acknowledge, as does everyone in this case, including the parents, how grateful I am to G and H and their family for everything they have done for V. People like G and H are rare, and their love, kindness and ability to prioritise V and ensure he gets everything he needs, physically, medically and, most of all, emotionally, have been an absolute blessing.[86]I turn now to consider the other aspect of the case, which is V’s name. The children’s guardian suggests a change in name would be in his best interests. The social worker, in the updating statement, discussed this issue with H. She said she had discussed it with V and he said he would like to keep his birth surname as a “second name”. The statement is ambiguous as to whether this meant as part of his surname or as a middle name, although the social worker’s understanding was that he meant it as a middle name. H felt that having a double-barrelled surname poses yet more questions for V, rather than providing the sense of belonging that he is increasingly seeking.[87]Mr Dean, in his submissions, took me to the relevant case law and, in particular, the decision in Re W (Change of Name) [2013] EWCA Civ 1488, in which Ryder LJ pithily said that the test is “welfare, pure and simple”. I was taken, amongst other cases, to the case of Re S (Change of Surname: Child in Foster Care) [2021] EWFC B22 dated 14 July 2021, in which HHJ McKinnell, sitting at this court, reviewed the case law relating to change of name under a care order, and I adopt her analysis of the legal tests. I recognise the limitation of case law from a Circuit Judge, but I am not aware of any higher court having considered the issue of a change of surname for a child in foster care, save for Re J (a minor) (change of name) [1993] 1 FLR 699, a case from 29 years ago decided on its own facts.[88]The parents are neutral about the change of name proposal. The children’s guardian proposes that V’s name should be changed to V [double barrelled surname combining birth and foster families’ names]. That proposal is set out by the children’s guardian in which she records a discussion with G and H when they said they would like V’s name to be changed to V [foster family surname], but they are willing to accept a double-barrelled surname of [foster surname-birth surname]. Elsewhere in the report the children’s guardian proposed the double-barrelled surname could be either way around.[89]When I consider V’s welfare and apply the welfare checklist under section 1 of the Children Act 1989, I am satisfied that, on balance, it is in V’s best interests to change his name. I consider that, by doing so, the court will be able to reinforce his sense of belonging within the foster family without disassociating him from his birth family. It may be that that raises difficult questions about his identity but, in my judgment, those difficult questions will nonetheless exist as a consequence of his life experiences, and he will need help to understand his history and his identity. So I am going to give permission pursuant to section 33(7) of the Children Act 1989 for V’s name to be changed to V [birth surname-foster surname].[90]I am very grateful to the advocates for their help in this case. Whilst I have been critical about the delay by the local authority in making the application, I would like to balance that by recognising the support and effort that the social workers have been making on the ground and the assistance that they have given to V, to G and H and the parents, and, lastly, I wish to express my very best wishes to V and to both his families for the future, and I hope that he continues to defy medical expectations long into the future. That is my judgment. __________