The Local Authority v NX & Anor [2024] EWFC 427 (B)

[2024] EWFC 427 (B)Case No ZE22C50326
IN THE EAST LONDON FAMILY COURT
Date Thursday, 25 th July 2024
11 Westferry Circus
London
E14 4HD
Before
HER HONOUR JUDGE SUHB E T W E E N:THE LOCAL AUTHORITYNX & YZMS L HARRINGTON appeared on behalf of the ApplicantMR P FROUD appeared on behalf of First RespondentMR P PAISLEY appeared on behalf of the Second RespondentMS E SHAW appeared on behalf of the Child for the GuardianJUDGMENT(Approved)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.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.
Between
The Local AuthorityClaimantNX & AnorDefendant

HHJ SUH:

[1]I know you love A. You have put A first in supporting her staying with her Foster Carers. That was a courageous and selfless thing to do. You have shown me pictures of your beautiful daughter who is a real credit to you. You have also started to build relationship with the foster carers and prepared so well for that meeting. You have come to court for A. You are clear you will always be there for her as her mother. You have behaved with real dignity and courage. I have to put A first. I have to do what I think is best for her. I think that adoption is best for A. She needs that security and permanence. I have thought carefully about how often you see her. I think that three times a year face to face is the right level. I think it would be great if the foster carers could give you a monthly update on how she is and you can send a message in reply. I don’t think we need a court order for that contact to happen. The foster carers are acting in good faith. But if your contact does not happen I will make sure that I am the judge you can come and see. I have thought carefully about A’s name. The Foster carers say that they want to add their name rather than take away her parents’ names. I think it right that she is given the names Y and Z because that is an important part of her life story.[2]Today I am concerned with A, born on [redacted]. Her mum is NX and her father YZ.

Background

[3]By way of background, A was subject to previous proceedings which concluded on 6 May 2022 with a supervision order made to the Local Authority and a child arrangements order that provided that A will live with her mother and have supervised contact with her father. A non-molestation order was also made against her father. The application was made on 14 September 2022 for an interim care order and that was followed by substantive application and an application for a placement order made on 21 July 2023. I also have the mother’s application for a contact order and her application to change A’s name to X.[4]A, since October 2022, has been with the current foster carers and she is subject to an interim care order.

Procedure

[5]By way of procedure, this matter was first listed for a final hearing on 5 September 2023. At that juncture, the mother made a very child-focused decision not to seek A’s return to her care. As I said in my summary, that was a courageous and child-focused decision and a brave mother who could put her own needs behind that of her daughter.[6]Having spoken, however, to the Guardian, the foster carers wished to consider the option of special guardianship order as well as adoption. It was agreed that there should be adjournment of the care and placement application so that that assessment of the foster carers could be undertaken before any final decision was made. That assessment has now taken place, and the foster carers have been assessed positively, both as prospective adopters and as special guardians. Therefore, the remaining issue for the Court is to whether make a special guardianship order or a care and placement order with a view to A being adopted. I must also deal with the name change and the issue of contact.

Threshold

[7]In relation to the threshold, I found the threshold made out on the basis of the schedule to my order of 6 September last year. I will not read it out in its entirety, but the main points that led the Court to be satisfied that the threshold was made out, related to a long history of domestic abuse between the parents. This was both during the last proceedings and also after those proceedings finished. Despite there being a non-molestation order in place to protect Mother, the mother remained in contact with the father and he was found inside the mother’s property on 6 September 2022.[8]The breach of a written agreement was occasioned by him being there when he should not have been, and both parents accept this placed A at risk of significant emotional and physical harm. The other elements of the threshold document include the risk of neglect for A arising out of her mother’s mental health and her father’s criminal history.

Law

[9]The law I have been greatly assisted by the advocates on in this case. I will summarise the cases to which they have drawn my attention. There are three cases and for the transcript I will give the citations. ReS (A Child) (Adoption Order or Special Guardianship Order) [2007] 1 FLR 819; ReMJ (A Child) Adoption Order or Special Guardianship Order [2007] 1 FLR 611 and ReAJ (A Child) Adoption Order or Special Guardianship Order [2007] 1 FLR 507. The advocates have very helpfully drawn my attention to those cases.[10]The main points that arise from the statutory scheme are highlighted by Lord Justice Wall in the case of Re S. He highlights this carefully constructed statutory regime which demonstrates the care which is required before making a special guardianship order. It is only appropriate if, in the particular circumstances of that particular case, it is best fitted to meet the needs of the child concerned. There is nothing in the statutory provisions that limits the making of a special guardianship order or an adoption order to any given set of circumstances. Each case must be decided on its particular facts and each child will involve the careful application of judicial discretion to those facts and their welfare.[11]I have to ask myself which order will better serve the welfare of this particular child. Indeed, each of those cases is different on their facts and each case is fact specific. There is no one that is exactly like A and the same of her circumstances. I have read too the case of Re T (A Child): Refusal of an Adoption Order [2020] EWCA Civ 797.[12]I have also reminded myself of the welfare principle that A’s welfare is my paramount consideration and of the no delay principle in both the Children Act 1989 and the Adoption and Children Act 2002. Of course I should not make any order for A unless it is better than making no order at all.[13]In relation to contact, I remind myself there are different statutory regimes that apply whichever order I make. In relation to a special guardianship order, I have a duty in statute to consider whether a child arrangements order should be made under section 14B(1) of the Children Act 1989. If I make a care order, of course those are provisions about contact in section 34 of the Children Act and if I am asked to make a placement order, I may also make an order under section 26 of the Adoption and Children Act.

Parties’ positions

[14]I am incredibly grateful to the advocates for their written submissions. Ms Harrington on behalf of the Local Authority; Mr Froud on behalf of the mother; Mr Paisley on behalf of the father and Ms Shaw on behalf of the child through her Guardian. I have taken care to read and reread the arguments that they very helpfully have set out on paper for me. I hope I will be forgiven for not reciting those all verbatim but rather summarising the main points they wanted to draw to my attention orally in submissions.[15]Ms Harrington submitted that care and placement orders were both necessary and proportionate in this case. The Local Authority did not support a section 26 order but could see the benefit of A’s name being changed on her birth certificate so that her life story is there for the official record.[16]Mr Froud, with great care, took me to the analysis on page 482 of the bundle and highlighted in his submission that a special guardianship order could secure the permanence and promote the identity of A, placing her at the centre of the family. He submitted that the special guardianship order accurately reflects the living arrangements. She lives with the foster carers who are able to care for her day-to-day needs because the mother cannot. Therefore, it best strikes the balance in helping A to understand her identity without severing legal ties. He sought to persuade me that an order short of adoption could secure that permanence and security for A. He suggested that a combination of specific issue orders could allow the foster carers to make specific decisions for A without consulting the parents every time. For example, in relation to education. In addition, that a section 91(14) order could last until her majority and cover all potential applications that the parents might make.[17]Mr Paisley tried to speak to his client this morning when he was unable to speak to him directly. It seems that the father has no fixed abode and last spoke to his solicitors on 4 July 2024. The father supports the mother’s position that an adoption order is not necessary or proportionate. He, Mr Paisley, had no formal instruction on the name change or the section 91(14) order but he did his best to assist the Court. However, he was clear in the father’s instructions that he would like more than the indirect contact that is proposed.[18]Ms Shaw submits that the foster carers are in reality acting as A’s parents and that their children, in practice, are her siblings and that the father is a danger to A. She pointed out that the section 91(14) order was offered late in the day, has not been offered by the father and that there is a low bar for passing the leave threshold in that case in any event. She pointed out that a patchwork of specific issue orders could still leave a high level of uncertainty for A in her placement and cannot, of course, address every eventuality.

Welfare analysis

[19]I look at all the circumstances of the case and, in particular, A’s wishes and feelings. In the light of her age and understanding, no doubt if she could express herself and had a grasp of all the issues I have to wrestle with, she would say she would love to be brought up by her birth family, if it was safe for her to be so. She would also, I am sure, want carers who would put her first, meet all of her needs and help her with all the challenges of growing up.[20]I look at her physical, emotional and educational needs and she is attending and enjoying nursery. Her speech is improving. There are no particular health or developmental concerns. She is described as a happy child who is thriving. She needs people who can provide her with consistent care. She was exposed to domestic abuse at a very early age. That will potentially have an impact on her development. As the Guardian sets out in her final analysis: “A has been exposed to parental conflict in her early life and exposure to ongoing violence and conflict can have a serious impact on a child’s behaviour, development and wellbeing. It undermines the child’s need for safety and security and can impact educational outcomes and mental health in future”.[21]Indeed under section 3 of the Domestic Abuse Act 2021, A herself is treated as a victim of domestic abuse. Any carer would need to be attuned to pick up any reactions and behavioural responses that she might present as a result of the disruption of her early years.[22]A has strong views on what she wears when she goes out and is fascinated by dogs. She also wakes frequently with distressing dreams and makes noises when sleeping. The evidence suggests that the transition she made to sleeping in her own room in a big bed has been challenging for her. The special guardianship assessment notes that after the monthly contact, A’s sleeping pattern becomes upset. If contact is cancelled, her carers have to make sure that she is kept very busy. Therefore the emotional impact of contact on her or of contact being missed is clearly set out in the evidence. The foster carers recorded us telling the Guardian that the inconsistent contact which she had with her mother at times has had an impact on her. Although A appears very settled, she is also a hypervigilant child: intensely aware of everything that is going on around her. A little girl who can feel emotionally overwhelmed and who needs her carers to help her manage her emotions.[23]I look at the likely effect on her of any change of circumstance. A has such a lot of change already in her life. She lived with her mother in a parent and baby placement. She lived in supported living with her mother, moved into foster care: the making of an interim care order. I think the current foster carers are her third set of carers. She has had her father and paternal grandmother in and out of her life but has no contact with the paternal family since the father has not responded after his risk assessment. She, of course, had the time when her parents were together and then the time after their separation. The evidence in the bundle suggests that she is very settled in her current foster placement and any change of circumstance for her is clearly not in her best welfare interests and will need to be very carefully managed.[24]I look at her age, sex and background and any characteristics which are relevant. Her mother is white; her father is dual heritage: white and black ethnicity. The father has a son who I understand was adopted recently. A and her half-sibling have no pre-existing relationship.[25]When I look at the harm that she has suffered or is at risk of suffering, I have already mentioned the harm that she suffered in the past by reference to the threshold documents. It is very clear that her mother is a very vulnerable young lady, who is diagnosed with adult ADHD, emotionally unstable personality disorder, impulsive and borderline type and has complex PTSD. The assessment of the Local Authority suggests a history of the mother behaving impulsively and a somewhat unstable lifestyle. The Local Authority concludes, and this is supported by the evidence, that the mother would be unable to provide A with a safe and consistent level of care with her needs being prioritised. Much to the mother’s credit, she has accepted this and selflessly says that A should stay where she is. It is to the mother’s immense credit that I see evidence she is working to turn her life around. It will take a while for her to benefit from the CBT and DBT for which she has referred herself. I am so glad to see she is staying in touch with her mental health team and to see her support worker for her at Court. She is working hard to become the person she wants to be but this, no doubt, will take time.[26]She was very vulnerable throughout 2023 and when I look over the contact schedules and the reasons given for the number of times she is late or she cancels, it seems to me that her life at that stage was really quite hard and quite chaotic. I do not wish to distress the mother, but it is very clear from the evidence that has been gathered during these proceedings that she is an emotionally vulnerable young lady. About a year ago on 17 July 2023, she contacted her team to say that she should be sectioned. She had not been able to speak to anyone and she heard voices in her head saying she should not be here. She stated that she was feeling suicidal. A few days later on 24 July last year, a contact session was cancelled because she was in hospital. She had cut her wrists and was having stitches. She shared she had a bit too much to drink at weekends and woke up on Sunday with a gash on her wrist that was quite deep and needed stitching.[27]As recently as 24 January 2024, the Local Authority record that they were told of non-crime domestic abuse incidents involving the mother and her current partner. The report stated that the couple seemed to argue constantly and abuse alcohol together. The mother, I understand, ultimately ended that relationship and told the social worker it was not healthy. I note that from as recently as the contact notes of 13 May this year, the mother has quite a lot going on in her life. I will not read that note out. It is a sensitive matter which she describes to the contact supervisor and to her credit, she made it to contact that day. However, her life, when I look at the evidence is complex, and she remains a very vulnerable individual.[28]The father has not taken part in these proceedings consistently. He did not take part in the risk assessment that was dated 30 September 2022, which was his route to establishing contact with his daughter. There is a further risk assessment of him dated 15 January 2024. At that time, his current probation officer says that support is in relation to offences against his partner, robbery, knife possession in public, drugs offences and criminal damage. He is currently being pursued by police in order for them to arrest him for breaking a non-molestation order, being in breach of his suspended sentence order and failing to attend Thames Magistrates on 7 December 2023. He was due to appear at, but a warrant was issued when he did not.[29]The risk assessment very clearly sets out positive aspects of the father’s engagements. He has not been observed to be under the influence of substances when speaking to social services. He has been able to put his daughter first in not seeking her return to his care and he is willing, he says, to work with the social workers. However, the social work team in that risk assessment also spell out the risks. He has been known to carry a knife; he smokes cannabis; he has a history of physical assault. He is a very high risk of serious harm person according to MAPPA and the risk assessment says he would need to show consistent commitment to his daughter. The assessment concluded by offering letterbox contact which he has not sadly taken up since that assessment in February 2024.[30]He was not able to abide by the non-molestation order put in place at the last set of proceedings. If the assessment is right that he is wanted pursuant to a warrant, he is not abiding by the requirements placed on him by the law now. Of course, his lack of respect of the law has not been, I am glad to say, directed at these foster carers who are caring for A, unlike what was happening in the case of Re T. However, it seems to me he does pose a risk of harm to A if he seeks to become involved in her life at given the current level of risk. He is not someone who respects court orders and he behaves unpredictably.[31]I look at how capable each of the parents is of meeting A’s needs. The evidence suggests sadly, very clearly, that they are not capable of meeting her needs day to day. The mother’s parenting assessment and psychological assessment make it clear as to complexity of the mother’s needs and concludes that the mother cannot meet A’s needs. I think an aunt was also negatively assessed during these proceedings and no other family members have come forward for A.[32]The foster carers clearly do meet A’s needs, and they understand A’s need to have a sense of her identity. The foster carers talk about how positive it has been for their son, who was adopted, to know his birth mother and feel proud of her achievements. Of course, only A’s birth parents can meet her need to understand that she is loved by them and will always be remembered by them. Therefore, I am particularly glad that the mother has taken some really positive steps, like ending that relationship that she thought was abusive. Like referring herself to CBT and DBT and she is on the waiting list for the Freedom programme. This is really important work, and I hope that she will continue to invest in herself and her future. Because even if A is not living with her, she can be a positive role model for her daughter and continue to see her.[33]The foster carers in their letter talk about M being the grandmother to A’s children. Of her, M, being the mother of the bride if A gets married. That is a wonderful way of reassuring M that she will always be A’s mum. She always has that role to play in her daughter’s life that no one else can play. A calls her “Mummy” in contact, and she can meet A’s needs for having a mother who thinks of her, remembers her and is a role model and supporter. Even though she cannot meet A’s day-to-day needs.[34]I look at the matters set out in the Adoption and Children Act 2002. I look at the paramount consideration being A’s welfare throughout her life. Of course, I must not ever make an order for a child unless it is better than making no order at all. If I conclude that a placement order accords with A’s welfare, I will then have to determine whether her welfare requires me to dispense with the consent of her parents in making such an order. In addressing this, I remind myself of the guidance of Re P Placement Orders: Parental Consent [2008] EWCA Civ 535. Therefore, when I look at section 1(4) of the Adoption and Children Act, I am content I have dealt with paragraphs (a), (d) and (e) in the context of the Welfare Checklist.[35]Therefore I turn to look at paragraphs (b), (c) and (f). Paragraph (b) requires me to look at A’s particular needs and I have already described that hypervigilant behaviour and her unsettled sleeping pattern. It is unknown, in full, how her early experiences will impact her in the long term. Of course she has that particular need for identity. To know who her birth parents are and if it is safe to have an ongoing relationship with both of them.[36]I look at the likely effect under paragraph (c) of the child throughout her life, of having ceased to be a member of the original family and become an adopted person. The severance of legal ties with her birth family is lifelong and fundamental. It would mean that the relationship which she has with her birth family would be through contact rather than through living with them. Of course, this is a lifelong decision that no doubt will affect A’s sense of identity as she grows up. We do not know the impact it will have on her self-worth and her self-image and how she sees herself fitting in with the world around her. It would extinguish the parental responsibility of her parents, and she would be treated in law as a child of the adopted family. That, of course, has an impact on succession rights and various other legal rights which may be less relevant for A that include inheritance, nationality and right of abode.[37]I look at the relationship under paragraph (f) that A has with her relatives and with any other person whom the Court considers the relationship to be relevant. The statutory obligation or need to identify relevant relationships and consider the likelihood of that relationship continuing and the value to the child of it doing so, extends to the relationship between the child and the foster carers, who have also put themselves forward as prospective adopters. That is the case of Re RP (A Child) (Foster Carer’s Appeal) [2019] EWCA Civ 525. There is also the case of Re W (A Child) [2016] EWCA Civ 793, which is different on the facts from this one but the prospective adopters in that case were clearly also found to fall within the category of any other person. I look at the likelihood of such relationships continuing and the value of the child to them doing so.[38]Of course, there is a value on A knowing her birth family. A recognises her mother during contact; calls her “Mummy”; relates well with her and she is delighted to have contact with her mother. Mr Froud highlights the contact notes between A and her mother which are an absolute pleasure to read. They tell each other how much they have missed each other. There are hugs and kisses and evident care, fun and affection.[39]The assessment of the foster carers also show a relationship of value. The assessments show that A is an integral part of their family. I think she was a flower girl at their son’s wedding. The older foster sister tells the assessor that she would step in should her parents no longer be able to care for A. They have even set up a trust fund for A financially, so whatever happens to the foster parents, there is a safety net. She has the support of each of the foster carers’ children who have been spoken to individually by the assessors and set out their relationship with A and their support of her and their parents. As the foster daughter who is eldest put it, “When I met with the siblings, A is like a piece of the puzzle that fits so well in the family”. What is so very clear, is the foster family as a whole have thought about what would happen if those foster carers could no longer care for A. Given that they are older than some carers and they have an active plan from other members of the family to care for A.[40]I look at the ability and willingness of child’s relative and any other relevant person to provide a secure environment within which the child can develop and meet the child’s needs. The foster carers clearly are willing and able to fulfil that role, supported by A’s foster siblings and the entire family.[41]I know that the mother would very much have wanted to bring A up but accepts that she is not able to. I also look at the wishes and feelings of the relatives and all of those relevant people. The foster carers’ wishes and that of the parents differ around the type of order that would best support A and the level of contact which might work best for her.

Analysis of realistic options

[42]Having considered the statutory checklists, I am now going to take a step back and look at A’s welfare in a holistic way, balancing the two options before the Court. I have to look at her welfare, that takes into account the negatives and the positive, the pros and the cons of each realistic option. The Supreme Court emphasized that a decision potentially leading to adoption requires a really rigorous evaluation and comparison of the realistic possibilities for a child.[43]I am very grateful to Mr Froud for referring me to a well-established case law which I nevertheless find it helpful to remind myself of, given the gravity of the decision. There’s Re O (Care or Supervision Order) [1996] 2 FLR 755. The Court should begin with a preference for the least interventionist option rather than the more interventionist approach. This should be considered to be in the best interests of children unless there are cogent reasons to the contrary.[44]I remind myself of the case of Re B-S (Children) [2013] EWCA Civ 1146 and the case of Re B (A Child) [2013] UKSC 33. That it is only in exceptional circumstances and when motivated by the overriding requirements pertaining to a child’s welfare, that severing the relationship between the child and the parent is justified. In short, when nothing else will do. Of course, the Y v United Kingdom reminds me that family ties may only be severed in very exceptional circumstances. Everything must be done to preserve personal relationships and, if appropriate, rebuild the family.[45]Let me look at the option of special guardianship order and adoption order side by side.

Pros and cons of a special guardianship order

[46]The special guardianship[47]I could make a section 91(14) order to try and guard against frivolous or unmeritorious applications from the parents in future. I could also underpin this arrangement with a specific issue order to cover very particular aspects of the exercise of parental responsibility.[48]The disadvantages of a special guardianship order include the fact that the foster carers do not prefer this as an option. They have flagged this clearly, so I must carefully consider whether I should impose an order on them, although I am very clear I have a power to do so should it be best for A.[49]There is no real pre-existing relationship between the potential special guardianships and the parents, all of whom would have parental responsibility. The mother is incredibly thankful and respectful towards the foster carers. I was so pleased to hear that her meeting with the female foster carer this week was a really positive one. However, the exercise of parental responsibility between the three of them: birth mother; birth father; foster carers has yet to be tested in the day-to-day decisions of life that take place outside Court.[50]The father, of course, is very much an unknown quantity. He is leading a lifestyle at the moment that appears chaotic, but nonetheless has very strong views about the amount he would want to see A. The mother, as I have highlighted, is a very vulnerable young lady, who is yet to make use of all the support such as CBT, DBT which she clearly would benefit from. She has quite a recent history of difficult relationships and mental health troubling her. Her father, as Ms Shaw highlights, is downright dangerous if the risk assessment is accurate.[51]These parents are very vulnerable, and A’s carers would need to consult with them over certain matters, like travel abroad for an extended period or medical treatment. I have referred to the table that sets out the differences between a special guardianship order and an adoption order appendant to the case of Re S and the number of decisions and the different approach to them depending on those orders is very clear. I could not express it better than the Court of Appeal did in that table.[52]Trying to exercise parental responsibility with a father who does not engage and who is high risk and a mother who is very vulnerable poses challenges. The Guardian sets it out very well in her final analysis, which I will quote if I may verbatim if I can open my laptop:
“It is this sharing of parental responsibility”, she says, “with the parents that has made the foster carers cautious of seeking a special guardianship order. They are extremely concerned about the trajectory of the father and his history and also that of the mother who is a vulnerable young lady with unresolved mental health issues, who has made unsafe decisions for her daughter in the past. The foster carers wish for utmost legal security and permanence.”
[53]The disadvantage again of a special guardianship order is that it does not provide the carers with a lifelong status in A’s life. The legal relationship is time-limited and not lifelong. It does not provide a legal relationship between A and her foster carers’ children or those wider family members. Here it occurs to me that the legal position could potentially become very fraught and complex if, and I hope this does not happen, the foster carers passed away during A’s minority or were too infirm to care for her. Their children would have no legal status to care for A and it would be deeply regrettable should that circumstance arise, that the matter would need to return to Court and lead to complexity and tension for A.[54]A special guardianship order, of course, can be discharged with leave of the Court if there is a significant change of circumstances. It seems that further proceedings would be very destabilising and damaging to A and could lead to her feeling unsettled and in the middle of a dispute between her natural parents and her carers. There is also the potential for the arrangement to be destabilised if the parents were to cease the level of support that they show the foster carers at the moment.[55]If a special guardianship order were made, I think an application would need to be made to the Court, if there were to be a change of A’s name. I have looked at the powers in section 14(B)(2), but in my view I should not exercise those today of my own motion. The reason for this as I will turn to later in my judgment, is A’s surname is a very contentious issue between the parents. It seems to me that there is, sadly, the prospect of future litigation if there were to be an issue around her name. There is currently an order which calls her [redacted] which the mother now seeks to change to X. Clearly this is an issue which has been fraught and quite complex.[56]The special guardianship order does not prevent the making of future applications and, of course, the parents could make applications for contact. The case of Re S sets out quite helpfully and succinctly the situation about future applications. The only section 8 order for which a parent requires leave of the Court if there is a special guardianship order, is a residence order. It seems to follow that leave is not required to make an application for any other section 8 order.[57]I have been taken to the potential to make a section 91(14) order and a combination: a patchwork of special guardianship orders. Therefore, I look at the issues that that raises. A section 91(14) order of course could offer a measure of protection against future applications. However, the hurdle for passing a section 91(14) application for leave is relatively low. There has to be an arguable case with some chance of success, which the Court of Appeal in Re S described as, “not a formidable hurdle”. The law, of course, has been changed since then. There is also section 91A which makes further provision about the making of section 91(14) orders. I can make one if any person poses a risk of harm to the child concerned, or another relevant individual. The test for granting leave after making such an order would be if there was a material change of circumstances since an order was made and, of course, it is foreseeable that throughout A’s minority, there could well be said to be changes of circumstance. There is a low hurdle to the passing of a leave application under section 91(14) and 91A.[58]The section 91(14) order has been offered by the mother freely. I give her full credit for that. She has said that she would agree to it being made for the purpose of all applications: a blanket order. She says she has no intention of making repeat applications to the Court. Of course, against that I know that we cannot future proof every order. I do not know if in the future her views might change.[59]This is a very draconian order. There is no formal application for one, so in effect, it is an application that is being made in the absence of the father. It is unfair to him in some respects because he was not aware that this application would be made, and he certainly does not agree with the contact proposals that have been put forward in relation to him. There is a line of authority about making section 91(14) orders when people are unrepresented, for example, that urge judges to be really very procedurally cautious when making such draconian orders. A disadvantage of the section 91(14) order is it was offered late without time for the foster carers and the father to consider it and it has not been proactively suggested by the father at all, who is oblivious to the fact that this discussion is going on.[60]Of course, an application could be made to revoke any section 91(14) order that I make today. It provides only a filter. It would not, I think, mitigate against the foster carers living with a degree of uncertainty as to if an application would be made. In addition, the Guardian is worried that the mother made two applications at the door of the Court and, of course, would be concerned if this would be the start of a pattern. Even if a future application was made and dismissed under section 91(14), the prospect of a level of disruption still remains.[61]The idea of a specific issue order and a patchwork of them to cover aspects of the exercise of parental responsibility is a very creative idea. The most obvious areas of disagreement, like schools or travel, could be addressed by me of my own motion. It is proactively offered by the mother, again, to her credit. However, against this, it has been offered quite late in the day. It is not offered or known of by the father and a patchwork of orders made by me today of my own initiative, I think, would be a framework that makes it quite difficult to cover all future eventualities.[62]It seems to me that if I made a patchwork of specific issue orders about school, education, medical treatment and so on, it would actually diminish the parental responsibility of the parents to the point of almost extinguishing it. This caused me, when I was drafting this judgment, to ask if we were heading towards a legal situation, with a combination of those orders more akin to adoption. In addition, of course, A is young. Who knows what will change; what issues may emerge as she grows up. We are already dealing with a contentious issue of name change and it may well be that other decisions about her future could be contentious.

Pros and cons of adoption

[63]In relation to the option of adoption, an adoption order has the advantage of providing A and her carers with stability and assurance that the placement will not be disturbed. It reassures them that, in fact and in law, she is securely placed with them. It reflects, Ms Shaw submits, the reality of her life, both now and in the future. Those older children around her that she sees as her siblings, will be her siblings. She can have the same surname as the family she lives with. This hypervigilant and emotionally fragile child will, the Guardian says, be supported in her psychological wellbeing and reach her potential most readily under this option. It provides her with a legal relationship with her foster carers for the duration of her life, not just until she reaches majority. It provides the emotional stability for her as being part of their family in every possible way and a sense of belonging. It provides her relationship with the siblings of the foster carers, who are committed to her care, should their parents be unable to. In addition, allows them access to support services if required.[64]The parents would need the leave of the Court to apply for contact orders say, post adoption. The Court of Appeal in Re S says:
“An essential component of the advantages produced by an adoption order for adopters and children, is that they are in most cases then free from the threat of future litigation. The same protection is not available in respect of special guardianship orders, and this may be a substantial derogation from the security provided. It is plain to us.”
They go on:
“The statutory scheme for special guardianship orders was designed generally to allow unfettered access to the Courts thereafter by the parents in relation to all section 8 orders, apart from residence. In this respect, it must be accepted that special guardianship does not provide the same permanency by way of protection as adoption. In our judgment, this is a factor, which in a finely balanced case, may well tip the scales in favour of adoption.”
[65]An adoption order reflects the reality which for all practical purposes A has been living. She has been treated as a child of the family with that she has been living and has had really enjoyable time with her mother which will continue. The foster carers own preference is for this order but that is not, of course, a decisive factor but merely one I weigh in the balance. Of course those succession rights would be different for A under an adoption order and there is a clear family plan for her should her foster parents be unable to care for her.[66]The disadvantages, of course, is that the parents will no longer have parental responsibility for A. In addition, the legal relationship between them would be severed, but in practice her relationship with her mother on the ground would continue, whichever option we go for. Because the foster carers are agreeable to promoting contact in order to support her understanding for identity and who her birth family is. She will continue that relationship she has with her mother. The foster carers are prepared, they told Ms Shaw in an email this afternoon, to add their own surname with that of the parents, rather than taking the parents’ names away.[67]Of course, the identity of an adopted child and the complexity of being an adopted child is a disadvantage which I cannot underestimate. Adoption is not a panacea; it is not a magic wand that makes life’s challenges or difficulties go away. An adopted child faces all the challenges growing up which children face, together with that added complexity of their self-worth and their self-esteem which may be impacted by an adoption.

Conclusion

[68]I have considered the two options, and I am driven to the conclusion that a making of an adoption order best meets A’s welfare needs, both now and throughout her life. It is both necessary and proportionate in accordance with Article 8. I should not interfere in the life of this family, only to the extent I should interfere that it is necessary and proportionate to the risks to the child. I am satisfied that this is a proportionate order for A. That it is genuinely a case where nothing else will do for A, short of that security and permanence that adoption gives her. I am satisfied that the position is now sadly so very clear that her welfare requires me to dispense with the consent of her parents.

Contact

[69]I look at the level of contact. The foster carers tell the assessors they have given contact a lot of thought and the best way to make contact meaningful is to meet A’s mother locally and go somewhere of A’s choosing, like a zoo or a farm. They can do this three times a year and she will be able to settle into routines and activities and plans for the weekend whilst still seeing her mother. They say in their most recent letter:
“We have every intention of continuing face-to-face contact with the mother as this is very important for A’s identity and self-esteem.”
[70]I look at the history of contact within this case and the mother was initially offered contact, I think, three times a week. To start with in 2022, she was quite consistent in her attendance. However, when I read across the pattern emerging from 2023, contact became very sporadic and unpredictable. It was reduced to monthly and since March 2024, it has, to the mother’s credit, been consistent. It is important that whatever level of contact is offered, it consistently takes place because the sense of disappointment if it is cancelled and the impact on A would be significant.[71]The mother wants to have monthly contact. However in my view, three times a year face-to-face contact for a day out with monthly updates to the mother, allows A to have a memorable time with her mother to celebrate significant milestones. In addition, it also gives her time to settle and rebuild her routine and security within the carers’ family. In my view, that strikes the right balance between maintaining those very important links with her mother but also being settled throughout her childhood at home. Monthly would have the potential for her to become unsettled and it does not give her the emotional permission to truly settle.[72]Of course, I look at what is best for her going forward for when she starts school. No doubt when she starts school, she will need weekends to rest, to do extracurricular activities and those are harder to do with a monthly pattern.[73]Contact for the father is untested. The social worker sets out how they tried to contact him during May and June, and he is apparently in breach of his post-sentence supervision requirement and has not spoken to Probation since March. The proposal for him is letterbox contacts three times a year. I think that is the right level of contact given the risk assessment. He has not taken up contact within these proceedings and he too needs to be consistent for A.[74]I look at whether I should make an order that puts that contact onto the face of a Court order formally. Section 27(4) provides that before making a placement order, I must consider arrangements for contact and invite the parties to comment on them. It is very clear in these proceedings that I have done so. The mother, in fact, made a section 26 application formally. Any order under section 26, of course, can be varied or revoked by the Court on application of the child, an adoption agency or a person named in the order.[75]I reminded myself of the case of Re C: Contact [2008] 1 FLR 1151 where the Court is satisfied the Local Authority is committed to the level of contact endorsed by the Court and order for contact is unnecessary.[76]I remind myself that the legal position is, once a placement order is made, all orders for child arrangements come to an end. In addition, that I have to consider whether contact should be ordered. However, unless an order is made under section 26, technically there is no legal requirement on the Local Authority to arrange contact with the child’s natural family.[77]I have read the President of the Family Division’s recent talks on this subject. He gave a lecture in October 2023 where he explores the recent work looking at post-adoption contact, including the President’s Public Law Working Adoption Group, chaired by Mrs Justice Judd. Its report was published for consultation in September last year and the report notes how adoption has adapted and changed down the years. It was clear that it needed to continue doing so.[78]First and foremost that group recommended:
“We say there needs to be a greater focus on the issue of contact for the birth family as long as it is safe.”
Indeed the House of Lords Children and Families Act Committee Report in December 2022, concluded the system of letterbox contact was outdated and warned that failure to modernise contact threatened to undermine the adoption system. They flagged there needed to be a change in social work practice and training for all involved in the process, including prospective adopters. To give focus to the benefits that contact may bring to many adopted children.[79]The President gave a further speech in May 2024, “Adapting adoption to the modern world”. He looked at the research about the outcomes of adopted children and how later disruption in adoption could be avoided, by providing support for maintaining family relationships at an earlier stage in the decision-making process. He says:
“A Court making a section 26 order, in keeping with its duty under section 1 and its lifelong focus, should have regard not only to the short-term contact arrangements required, but should set up the course for the maintenance of family relationships over the longer term if it is in the child’s best interest. There is nothing wrong. It would be good practice, I suggest, for a section 26 order to recite the Court’s view on contact post adoption.”
[80]As Ms Shaw points out, this President’s speech mainly addressed the usual situation we see in Court where the identity of prospective adopters is not known at this stage when the Court is asked to make a placement order. It is often argued by the social work team that they cannot commit to there being direct contact with birth family because the views of prospective adopters are not known. It might discourage prospective adopters if they were required to provide direct contact. However, that is not the case here. These foster carers are already ahead of the thinking of the President of the Family Division. They have been supportive of contact between their son and his birth mother for years and they have proactively offered three times a year contact to A’s mother. They have offered a monthly text. It seems to me that their thinking is ahead of the times. These are not prospective adopters who will need any persuading that it is good for A to see her mother.[81]I have looked at the law and the recent views and guidance and now I apply that specifically to A. Section 27(4) of the Adoption and Children Act places a mandatory duty to consider any arrangements that the adoption agency proposes to make for any person to have contact with the child. I have been given today, a transition plan and a contact plan which can be put on the face of the order and, indeed, an amended care plan.[82]There should be two hours contact in August between A and her mother with foster carers present and maybe a picnic if the weather is good. I agree with the Guardian, that probably needs some form of social work back-up or support to make sure that goes smoothly. Three hours in October; four hours in December and thereafter, three times a year for the whole day with monthly updates by text.[83]When considering whether to make an order, the welfare of A is my paramount consideration throughout her life. I remind myself of the Welfare Checklist and I look at A’s wishes and feelings. Of course, she is too young to understand these complexities of lifelong decisions about contact, but it is clear she enjoys her time with her mother. I look at her particular needs and she has that need for support in managing her emotions. She reacts unsettled to missed contacts and her sleep is affected by those contact visits. She needs contact to be consistent and she needs it to be enjoyable. Of course, if her mother was not in a good place for any reason, she would not benefit from seeing her mother distressed or unwell.[84]I look at the likely effect of A ceasing to be a member of the original family and becoming an adopted person. I have already weighed that profound impact it might have on her sense of identity and self-image in the years to come. It is important that she maintains those links with her birth family so she understands that she is very much loved by them and that her mother can be a good role model to her.[85]I look at her age, sex and background. Of course, she is three. She has about 15 years of her minority to run, and it is important that whatever contact happens, it is consistent throughout that time. The track record of these foster carers suggests that they have put into practice their own commitment to supporting contact with their son and his birth mother throughout his minority. They are now at a stage where he can see her on his own.[86]I have already referred to the harm that A was at risk of suffering and the risk that her parents’ mental health, substance misuse and relationship instability could pose to her. The mother remains vulnerable, and the father involved in criminal matters before those Courts. It is clear that A has spent time with her mother safely during these proceedings, but the father has not and not taken up that indirect contact.[87]I see here that we have a relationship of value. A mother who was responsive to A’s needs and a relationship of warmth and commitment. However, contact with her mother has not always been consistent for A as the mother herself accepts in her statement of September last year. She has found it hard to say goodbye to A in the past, particularly when A becomes emotional. Contact has become more consistent as it has become less frequent.[88]I look at the ability of all of those involved in her life to meet her needs. The parents have taken a child-focused decision not to contest the plan for A to be cared for outside the family. That is a very realistic decision. They wish to meet her needs for safety and security, but they also wish to meet her needs to have a sense of identity in the future by remaining part of her life in direct contact. They have shown an unusual ability, I think, particularly the mother, to support A in her placement. This is not a mother who wishes to undermine A’s needs but rather support her to the extent that she has made a very courageous and child-focused decision. She wants to have a relationship with her daughter, and she would like as much contact as possible.[89]The Guardian and the Local Authority submit that an order is not necessary. The mother says it is, given the history of non-compliance in this case, which undermines the mother’s ability to trust what the Local Authority say. Of course, it was deeply regrettable, for example, that a special guardianship assessment was put on hold and an adoption assessment commenced in contravention of this Court’s order and without any consultation. In addition, that the mother has had to make two, I think, non-compliance applications to this Court.[90]This is a very delicately balanced decision. Of course, there are factors in favour of the order. It would ensure that the foster carers’ plan is put into action, regardless of the change of social worker or team. It would ensure A’s time with her mother continues and how A responds to her mother is monitored prior to any further application. It would put the mother’s mind at rest that this cannot be a matter on which the Local Authority fail to comply with the Court’s view about contact. It would turn the transition plan, which I approve, into an order. Care plans, of course, can be changed and this would ensure that this plan is not. I do bear in mind that should the mother need to come back to Court, representation and public funding may not be available to her for a section 26 application in future.[91]Against this, I weigh the factors that these foster carers have acted entirely in good faith. It is the foster carers, in effect, that have led the Local Authority to the right level of contact for A. They have been generous and child-focused in their approach. There is no evidence before me to suggest that they would not keep their word, or indeed ensure that the Local Authority do so too.[92]I can record the expectation of contact in the care plan and on the face of the order without making it necessarily a formal order. I can also record the Court’s view at present, that if adoption went ahead, three times direct contact a year is the right level for A on the evidence that I have before me.[93]An order would require, in effect, A to be taken to see her mother, even if her mother was not well. I know that the mother is very vulnerable, and this judgment will be really hard for her to digest. I hope that nothing destabilises her over the coming months, but it is possible, of course, that she, on occasion, may not be well enough to see A. Of course, the authority of Re C is still good authority. The guidance of the President is just that. I have already observed how these foster carers are ahead of the President of the Family Division in their approach to direct contact as prospective adopters.[94]I found this a really difficult and finely balanced issue but on balance, I do not think an order is necessary or proportionate. It would not be in A’s best interest to have inflexibility in relation to contact if something unexpected happened or changed. The foster carers’ good faith is not in doubt. I will recite the transition plan and endorse the level of contact set out in it. If the Local Authority do not keep their word about the transition plan and the level of contact, I reserve any future section 26 application to me should M need to make one. In addition, I, of course, would take an incredibly dim view of any alteration to that plan without a very clear welfare-based reason for A for such an alteration. I did, I should say for completeness, consider whether I should adjourn the mother’s application generally with liberty to restore. However, on balance, I thought that created too much uncertainty for the foster carers and a child who needs the Court to make a decision and reach a degree of finality today.

Name change

[95]I look at the name change application, and the birth certificate that A has, has AA on it. The mother wants her to be called X. The order of 5 May 2022, records that the parents agree that A shall be known as [redacted] and the birth certificate should be changed to reflect this. The Guardian and the social worker support the use of [redacted], as reflecting the biological reality of who A’s parents are and as part of her life story work. Even if her name is changed in future, she would be able to follow through the formal documentation, her name, which is part of the decisions that have been made for her and part of her identity.[96]The mother says that the father has shown zero commitment. She is the parent who turns up. She is the parent who is committed to A. Regardless of what order the Court makes, she should be a X. The father, of course, has not provided instructions but is unlikely to agree any name change. I have a great deal of sympathy with the mother, and I can see why she made the application. She is indeed the parent who has acted as a parent to A, who has turned up to Court, who has turned up to contact. The foster carers in an email to Ms Shaw say they would incorporate their name into the current surname in some way and support A with this.[97]I remind myself of the case of Dawson v Wearmouth [1999] 1 FLR 1167, that registration of the name is a profound issue and not a mere formality. The name used at birth is a factor I should weigh in the balance and there is an argument for not disturbing the status quo. I think the decision back in May 2022, was the right one for A in that it is important that her birth certificate at this stage bears both parents’ names. They are both part of her genetic heritage; they both brought her into the world.[98]The mother’s application, although understandable, could be seen as trying to erase the father’s name from her history. They are both part of her story, part of her identity. Therefore, the Local Authority really must action the order that was made at the end of the last proceedings and make sure the birth certificate is amended in a timely manner. That can be part of A’s life story work that explains how her name was changed, and no doubt may be changed again if an adoption order is made. The foster carer plan of retaining the surnames of the birth parents is characteristically generous and child focused. It is another indication that they in no way seek to erase the existence of her birth parents and are willing to reflect her identity in the name that she uses.

Orders to be made

[99]Subject to any further submissions, I make the following orders. I have already recorded that the threshold criteria are met, and I approve the Local Authority’s transition plan which must be put in an amended care plan, recorded on the face of the order and filed within seven days.[100]I make a care order. I dispense with the consent of the parents.[101]I make a placement order, and I direct a transcript of this judgment be prepared at the expense of the Local Authority. It will be anonymised, checked with counsel and published. I trust that the Guardian’s solicitor will send it to the medical assessor and other professionals who provided reports, so that they can see the outcome of the case for their own professional development. I give leave for any relevant documentation to be disclosed to the prospective adopters and I make the usual orders about costs.[102]If in later life A is to read this judgment, I will hope she will appreciate how much her parents love her and how her mother, in particular, very much wished to bring her up but put her first in saying she could stay with these foster carers. In addition, how her mother very much wanted to use every route available to her to ensure that she remains a live and active role in A’s life. I hope that M will take part in life story work and that those regular direct meetups are a source of real joy to both her and A.[103]I thank the social worker for the time that she has devoted to this case and her effective work on it. I am grateful to her updating statements and the care with which she has instructed counsel today.[104]I am very grateful for the Guardian for her careful reports and her scrutiny throughout this case of the Local Authority’s care planning for this child. Throughout these proceedings she has been a very effective voice for A and of great assistance to the Court in making sure that the right options are explored and put before the Court.[105]I want to thank counsel for the very constructive way in which they have dealt with this case. I particularly, and I hope I am not being unfair to the other counsel, wish to thank those counsel who have provided continuity in representation. I think M should know that she has had the most excellent representation throughout, and I am so grateful for Mr Froud after this judgment, sitting down to go through it with his client. He has in every way served her well, in making her arguments so eloquently before the Court.[106]Ms Shaw, I am grateful to your consistency of representation which has also been material in helping the Guardian ensure that all of those realistic options were put before the Court. All of the relevant case law at every juncture has been brought to my attention and that consistency of representation has served clients incredibly well in this case.[107]Finally, I express formal thanks to the foster carers. They have been described many times in submissions as exceptional. I think that is a very accurate way of describing them. Their thoughtful and compassionate and careful approach to what is best for A throughout these proceedings has really been extraordinary. I am very grateful for the care that they have given her, the thought that they have given to her future and their commitment for supporting her relationship with her birth family, well beyond the conclusion of this judgment and into her future life. End of Judgment. Transcript of a recording by Acolad UK Ltd 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com Acolad UK Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. This transcript has been approved by the judge.

order

the advantages of this is that it preserves that legal link between A and her birth family. It gives A’s carers parental responsibility to make decisions for A up to the age of 18 and the ability to trump, as it were, the parents’ parental responsibility. It provides access to support services and financial support if necessary. An advantage of a special guardianship order arises from the fact that the mother has not sought to undermine the current arrangement. Neither in fairness has the father, although his engagement in these proceedings has been very unpredictable.