CC (Adoption Application: Separated Applicants) [2013] EWHC 4815 (Fam)

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.Case No NE96/12[2013] EWHC 4815 (Fam)Date 11 th October 2013
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
B E F O R E:
MR JUSTICE MOYLAN
Re CC (Adoption Application: Separated Applicants)
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Judgment
[1]Mr Justice Moylan : This is a hearing to determine an application for an adoption order. The application is made by Mr and Mrs C and was made on 30th August 2012. They wish to adopt a young child called M who is now aged almost four.[2]M moved to live with Mr and Mrs C early in 2012. A Placement Order had been made in October 2011 at the conclusion of care proceedings.[3]Given the relatively unusual circumstances of this case, the relevant Local Authority, DCC, has been represented at this hearing by Mr Oliver. In addition, during the course of the proceedings, HHJ Simon Wood joined M as a party and appointed a Guardian to act for her. The Guardian is represented at this hearing by Miss Proops. Mr and Mrs C have appeared in person.[4]This judgment as published deals only with the issue of whether an adoption order should be made in favour of both Mr and Mrs C who have separated since they issued their application.

Background

[5]M was placed in the care of the Local Authority from her birth. She last had contact with her mother when she was aged 5 months. She has had no contact with any other member of her birth family. M’s mother has not participated in these proceedings. M’s putative father died some time ago. M lived with foster carers until she moved to live with the C family in early 2012.[6]Mrs and Mrs C are both aged in their 40s. They married in the early 1980s. They have two children, F, now a young adult, and O, aged 7, who is also adopted. The unusual feature of the case is that shortly after the adoption application had been made, Mr and Mrs C notified the local authority that they were going to separate. They separated early in 2013. M has remained living with Mrs C, F and O.[7]There is a considerable volume of written material which has been prepared for the purposes of this application. I have also heard oral evidence from Mr and Mrs C and from the key social worker, Miss R. Miss R is an extremely experienced social worker and has known the family since 2006 when O was adopted. She therefore brings to this case a great deal of knowledge and understanding of this family. This is, in part, demonstrated by the detail which appears in the Annex A report and Addendums prepared by her pursuant to Family Procedure Rules 2010, r. 14.11.[8]The Annex A report is dated 28th March 2013. It deals with the visits made to the C home following M’s placement there in 2012. A number of these were made by another social worker, M’s social worker, in March 2012, but since then a significant number of home visits have been undertaken by Miss R. She made in the region of twelve visits between April 2012 and when Mr and Mrs C separated in 2013. She has, of course, continued to maintain contact with the family since then.[9]This matter was listed for determination earlier this year. It was adjourned with M being joined as a party. This, and the involvement of the Local Authority, occurred because of concerns arising from Mr and Mrs C’s separation.

Evidence

[10]I propose to refer only to part of the evidence, but I have taken it all into account when determining this Application. I start with the professional evidence.[11]The Annex A Report thoroughly addresses the issues raised by this case. I refer only to its essential conclusions:
“… having known the prospective adopters since 2006 in respect of the matching and placement of O, followed by a lengthy period of post-adoption support, whilst her health and later her educational needs were being assessed, I am fully confident of their wish to continue to be joint parents of M, as they are in respect of F and O. Indeed, this decision to separate has been the first and only occasion that either of the adults has put their own needs first, to my knowledge. Whilst it is a very sad decision, children who are being looked after do require stability, security and a very equal sense of belonging to parents. In my opinion, Mrs C and Mr C can continue to provide this, despite living in different homes.” “M has presented throughout visits and reviews as a child who is both comfortable and confident within both … homes.”
[12]Miss R considers possible alternative orders:
“In my opinion, the granting of a Residence Order or Special Guardianship Order does not meet the needs of M. M requires her prospective adoptive mother and father to act as fully adoptive parents, albeit living separately ... M requires an Adoption Order and the associated full parental responsibility being granted to the prospective applicants, to ensure that M is provided for fully into adulthood and beyond.”
[13]In a Review, dated 24th February 2013, a senior adoption practitioner says:
“Having met both prospective adopters, independently, I feel that overall they seem to have the same end goal and a shared vision of how they will reach it. That is to say, to work together so as to maintain a civil and workable relationship, wherein there is flexibility, a receptiveness to accept that change will need to be incorporated to allow unexpected things that can occur and to maintain good and honest communication so as to try and avoid creating unnecessary conflict.”
She concludes:
“In my opinion, the prospective adopters remain suitable to adopt. They have worked together to make the best out of the situation and I feel that they would continue to do so. Mr C and Mrs C have a strong family ethic and I believe they will strive to maintain a solid relationship so as to help all of the children. M has settled well with this family and, although it now exists in a different format, I feel that the ‘new’ family is working over the two households. I would see no value in withdrawing our support of this adoption application and feel that this would be damaging to M. I therefore recommend that Mr C and Mrs C remain suitable to adopt and support this adoption application.”
[14]In a Review of Mr and Mrs C as prospective adopters, dated 26th August 2013, the Adoption Reform Project Manager states, under the heading:
“The Likely Effect on the Child of any Change in Circumstances”: “I would suggest that it is important for M to maintain both applicants in her life as parents. Mr and Mrs C living separately should not necessarily be a contra-indication to them being able to remain as active parents in M’s day to day life. It is my view that this application remaining a joint one is important as it will give both Mr and Mrs C an equal legal position and a level of responsibility for M throughout her journey to adulthood. This may then make it more likely that both parents will remain as part of M’s life and not bring about further dramatic change. Both applicants have said, separately, that they wish the application to remain joint and I can see no reason for not supporting this … Both parties remain committed to M and wish to have a legal entitlement to parent her. I can see no … reason for us to withdraw our approval …”
[15]Reading from the first Addendum to the Annex A report, dated 30th August 2013:
“Since my involvement with Mr and Mrs C in 2006 … I have seen both O and later M excitedly welcome [Mr C] home from work and I am able to state that he has a very firm bond with both children and they have a strong attachment to him. They would approach him and let him know what they were doing and share affectionate hugs with each other. I have no doubt as to his and Mrs C’s commitment to both children being equal to that of their own birth daughter. This has been obvious and verbalised on many occasions from [my] first meeting … ”. “M’s care and relationships within the whole family, given the length of her placement with them, include extended family members and their previously shared support network”
[16]Under the heading “Summary and Recommendation”, Miss R makes clear her continued support for the joint adoption application. In her opinion a joint adoption order best promotes M’s interests and is the only order which properly secures her relationships within the C family. “It provides full parental responsibility … to Mr C and Mrs C and is what is required for M. M will benefit from having the man she calls her “daddy” around her and involved in her care in her childhood and into adulthood. It equalises the legal relationships, parenthood, love and care that F and O have also benefited from.” “M is nearly four years old; she has spent her first two years in foster care and nearly two years with her prospective adopters’ family. Her prospective adopters have been physically separated for the last eight months. M and O have visited their father as agreed and arranged by Mr and Mrs C. Since M’s placement with Mr and Mrs C, F and O, she has become securely attached to all of these family members. She is a well loved and fully claimed member of this family ...”[17]In a further Addendum dated 10th October 2013, Miss R repeats that:
“M has developed a strong attachment to her prospective adoptive parents, [to F and O], as well as to both sides of her extended adoptive families. She will have few personal memories of being in foster care and her pre-adoptive history and links to understanding her birth family are also held within this potential adoptive family … It is evident from her presentation over this period that she is a much loved child, who has all her age appropriate needs met in all areas.”
Under the heading “M’s Particular Needs”, she states:
“M requires her permanency plan of adoption to be legalised with both prospective adopters. This stability and security is vital to [secure] the positive foundations already created in all her relationships with both sides of the prospective adopters’ extended families’ and friends’ networks. A single adoption order would create additional complexity and difference to her post-adoptive history, in comparison to … O.”
[18]Miss R also comments that, the negative effect an order solely in favour of Mrs C would have on Mr C – in not being recognised legally as M’s parent - would be likely to impact adversely on M and the whole family. In her oral evidence she expressed concern that this could become a “really big issue”. In contrast, a joint[19]The Guardian’s report is dated 2nd October 2013. Although the application is, in her experience, highly unusual, she supports the making of an adoption order in favour of Mrs C and Mr C. In the course of her report, she says:
“It is not disputed that M has attached well with both adults and F and O and that this attachment is reciprocated. It is clear from … my enquiries and observations that M has embraced having a family and siblings … Mr C has, in my view, without question, accepted M as his own child. I believe that, if this status was withdrawn, it would impact negatively on M. It would not only impact gravely on their relationship with one another, but the ramifications would stretch to how M would perceive her own identity within the family unit and how that would legally be very different to that of F and O.”
Later she says:
“M’s relationship with Mr and Mrs C has continued to grow and develop. There is no dispute between the parties or professionals involved that these relationships for M are anything but significant and valuable. Whilst I have struggled with this application, it is my view that it has to be right to allow these primary relationships in M’s young life the opportunity to be sustained.”
[20]The Guardian expresses some concerns, which it is not necessary to elaborate, but she supports the making of a joint adoption order. M is much loved by both Mr and Mrs C and by her siblings and extended families. The separation has been managed in “a civilised and orderly manner”. The Guardian has seen M in both homes and she appears to have managed the changes without any adverse emotional or behavioural concerns. In her opinion a joint order is in M’s long-term best interests and “would, on balance, outweigh any other outcome”.[21]In their evidence both Mr C and Mrs C strongly urge me to make an adoption order in favour of them both. They each wrote letters to the court earlier this year, dated respectively 25th June and 1st July. They set out in those letters, in detail, the reasons why they continue to press for a joint adoption order. In particular, Mr C considers himself to be M’s father and says that she sees him as her father. They have built up a strong relationship. Mrs C agrees that M “in every way” thinks of Mr C as her daddy and “loves him”. In her view, M needs them both to be her parents.[22]Mrs C, in particular, has expressed her regret that they are not giving M the family home which they had hoped and intended to provide. However, she has come to the firm conclusion that Mr C should become M’s legal father. She told the Guardian that “[Mr C] loves M and M loves her daddy” and that M needs Mr C to be her daddy.[23]Mr and Mrs C confirmed their positions in the oral evidence I heard today. Mrs C repeated that it would be “negative” if Mr C was not M’s legal father. She also said that M needs to be in the same position as her siblings.

Submissions

[24]All those present today support the making of a joint adoption order. Mr Oliver and Miss Proops have both made submissions to this effect. They submit that such an order would be in M’s best interests and would be in accordance with the provisions of the Adoption and Children Act 2002.

Law

[25]Section 1 of the Adoption and Children Act 2002 makes M’s welfare, throughout her life, my paramount consideration. I must also have specific regard to the matters set out in s. 1(4).[26]I have also been referred to a number of authorities, including Johnson J’s decision of Re WM (Adoption: Non-Patrial) [1997] 1 FLR 132 and Bodey J’s decision of Re C (Foreign Adoption: Natural Mother’s Consent: Service) [2006] 1 FLR 318. The circumstances of these decisions have significant differences to the present case but in both the applicants had separated after they had made an adoption application.[27]Johnson J was satisfied that an adoption order was very much in the child’s interests and that there was “considerable advantage to [the child] in my making the order in favour of both applicants jointly”: p. 137. He placed particular weight on the social and emotional advantages for the child of having the same status as the prospective adopters’ child. There were also financial advantages.[28]He addressed the terms of s.13(3) of the Adoption Act 1976 which prohibited the court from making an adoption order, “unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a married couple, both applicants together in the home environment have been afforded … (to the adoption agency or the relevant local authority).” There had been such opportunities in that case, before the applicants had separated, so the court could make a joint adoption order. Johnson J made such an order with the comment that, at p. 137:
“I am not to be thought to have lent judicial support to the making of adoption orders in favour of separated couples as a general rule.”
[29]Bodey J applied and followed Johnson J’s decision. He, too, considered that the advantages to the child of being jointly adopted greatly outweighed any other outcome.[30]Section 13(3) has been replaced by s. 42(7) of the Adoption and Children Act 2002. It is in the same terms, save that the words “shall not be made” are now “may not be made”. There was some debate during the course of the hearing as to when the opportunities to see the child must have occurred. Must they have occurred after the adoption application has been made or can they have occurred before? There is no specific timeframe referred to in sub-section 7; it simply requires the court to be satisfied that there have been the requisite opportunities. I do not propose to deal with this issue because it is clear that, in this case, there have been ample opportunities for the local authority to see M with the applicants “together in the home environment” both before and after the application. Miss R has visited the home on many occasions. I am, accordingly, satisfied that the provisions of s. 42(7) are fulfilled.

Determination

[31]I was impressed by the evidence of Mr and Mrs C. It is clear to me that they are both committed to M. The fact that M has developed a strong bond with them, which is reciprocated, is plainly established by the evidence. M clearly views them both as her parents and they clearly see themselves as her parents. It is also apparent from the evidence that, despite the ending of their marriage, Mr C and Mrs C have managed to maintain good relations for the benefit of their children.[32]As has been said on a number of occasions, M is clearly a much loved member of a family which includes Mr C as well as Mrs C and F and O. The point has additionally be made that, as in Re WM, it is in M’s best interests for her to be in the same position in the family as her siblings, or prospective siblings, F and O.[33]In her judgment in Re G (Children) [2006] 2 FLR 629, Baroness Hale of Richmond refers to the different forms of parenthood. At para 33 she says: “[33] There are at least three ways in which a person may be, or become, a natural parent of a child, each of which may be a very significant factor in the child’s welfare, depending upon the circumstances of the particular case. The first is genetic parenthood: the provision of the gametes which produce the child … [34] The second is gestational parenthood: the conceiving and bearing of the child … [35] The third is social and psychological parenthood: the relationship which develops through the child demanding and the parent providing for the child's needs, initially at the most basic level of feeding, nurturing, comforting and loving, and later at the more sophisticated level of guiding, socialising, educating and protecting. The phrase "psychological parent" gained most currency from the influential work of Goldstein, Freud and Solnit, Beyond the Best Interests of the Child (1973), who defined it thus: "A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent." [34] The second is gestational parenthood: the conceiving and bearing of the child … "A psychological parent is one who, on a continuous, day-to-day basis, through interaction, companionship, interplay, and mutuality, fulfils the child's psychological needs for a parent, as well as the child's physical needs. The psychological parent may be a biological, adoptive, foster or common law parent."

[34] The second is gestational parenthood: the conceiving and bearing of the child …

[34]My paramount consideration is M’s welfare throughout her life. The evidence, in my judgment, firmly establishes that it is in her best interests for an adoption order to be made. The only issue which has arisen, as a result of the separation of Mr and Mrs C, is whether the process should start again and an application be made by Mrs C alone, or whether I should make an order in favour of both Mr and Mrs C.[35]There are a number of factors which lead me to conclude that, in order to secure and promote M’s welfare throughout her life, it is in necessary for her position within this family itself to be secured by an order which makes both Mr and Mrs C her parents.[36]It is clear, as demonstrated by the evidence referred to above, that M is fully integrated into and a part of a family that consists of Mrs C as her mother, Mr C as her father and F and O as her siblings. Taking Baroness Hale’s classification, Mr C is in practical, psychological, terms, M’s father and M is his daughter. In the same way, Mrs C is her mother and M is her daughter. In my judgment, it would promote and secure M’s welfare throughout her life for the legal position, namely for them both legally to be her parents, to be allied with the psychological position. I agree with Miss R that not making such an order, and creating a stark division between them, could well cause significant problems in the future. It would also mean that Mr C had no legal obligations in respect of M.[37]Additionally, I agree that there is significant benefit in M being in the same position within the family as her siblings – the emotional and social advantages referred to by Johnson J.[38]Finally, although the parties are separated, they have continued to co-parent M by agreement and, importantly, without significant disagreement or dispute. This is an important feature of this case as is the fact that both applicants, for sound reasons, support the making of a joint order.[39]In conclusion, whilst I agree with what Johnson J said, as quoted above, in my judgment the factors present in this case weigh decisively in favour of my making a joint adoption order in favour of Mr and Mrs C. End of judgment We hereby certify that this judgment was approved by Mr Justice Moylan on 2nd October 2014. Compril Limited

order

“… will secure M’s legal position equally in terms of shared parental responsibility to Mr and Mrs C, as well as recognising the emotional attachment she has created within her family and the need for continued safeguarding, stability and security … .”