W (Adoption- Reunification), Re [2015] EWHC 2039 (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 UQ12C00161/SD14C00594[2015] EWHC 2039 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF AN ADOPTION APPLICATION
IN THE MATTER OF THE CHILDREN ACT 1989
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF W (A Girl)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22/07/2015
Before
MS JUSTICE RUSSELLIn re W (Adoption application: Reunification with Family of Origin)
Between
Prospective AdoptersApplicantBrighton & Hove City Council1 st RespondentMother3 rd RespondentW (A Child)4 th Respondent
Madeleine Reardon (instructed by Osbornes Solicitors) for ApplicantsAndrew Bagchi QC (instructed by the City Council) for 1 st RespondentJanet Bazley QC & Chris Barnes (instructed by Harney and Wells Solicitors) for 2nd RespondentCatherine Jenkins (instructed by Howlett Clarke Solicitors) for 3 rd RespondentJonathan Bennett (instructed by Railtons Solicitors) for 4 th RespondentHearing Hearing dates: 18 th May to 22 nd May 2015
JudgmentThe Honourable Ms Justice Russell DBE:Introduction
[1]This case concerns a little girl (W) born in November 2012 and who is now 2 years and 7 months old. The child was placed for adoption by Brighton and Hove City Council following public law proceedings in which she was made subject to care and placement orders in September 2013. The application before me is for an adoption order under the provisions of the Adoption and Children Act (ACA) 2002 s 46. The application is made by Mr and Mrs A with whom W was placed 16 months prior to the hearing of this application. In December 2014 the child’s father was granted permission by the circuit judge in Brighton to oppose the making of an adoption order under s 47 (5) of ACA and it was that application which was listed before me on the 18th May 2015. However on the 6th of May 2015 the Court of Appeal allowed appeals by the 2nd Respondent (“the father”) in this case against care and placement orders made in Brighton County Court on the 19th September 2013 in respect of his daughter W, reported as Re H (Children) [2015] EWCA Civ 583.[2]The father is the father of four children including W who is the youngest; X, a girl, who was born in 2003 (now 11 years old), Y, a boy, who born in 2007 (now 8 years old) and Z, a boy born in 2009 (now 6 years old). The children are full siblings; the children of the 3rd Respondent (“the mother”). X, Y and Z all live with their father who has a residence order in his favour, and they were made subject to year long supervision orders in September 2013 (now no longer in force).[3]As a result of the placement order W (then 14months old) was placed with the Applicants as prospective adopters. This placement order has been overturned by the Court of Appeal. W had been removed from her father’s care when just over 4 weeks old and placed in foster care where she remained until placed with the Applicants in January 2014. At the hearing before District Judge Gamba in September 2013 evidence was heard and a judgment given but, unfortunately the district judge failed to set out in the judgment precisely how he had found the threshold criteria pursuant to s 31 of the Children Act (CA) 1989 were met and did not begin to carry out an analysis of the options regarding W’s placement; this latter flaw was the basis of the successful appeal.[4]It falls to this court to decide whether the welfare of this child is best met by reunification with her birth family to be cared for by her father and to grow up with her siblings or by remaining with, and being adopted by, the Applicants under the provisions of the ACA and the welfare checklist set out in s 1 with particular reference to s 1(2) and (4). The history of W’s placement will be set out in detail below and it is of relevance not only because it forms part of the background to the case as a whole but because it will be of relevance to W herself as it is part of her individual background and will form part of her understanding of herself and her identity as she grows up and for the rest of her life.

Family background and history of social services involvement

[5]W was born in November 2012 the youngest of four siblings whose mother (“the mother”) suffers poor mental health for which she receives psychiatric treatment, and which, at times, makes it impossible for her to care safely for her children. In turn this affected the father and his ability to care for the children, although it must be recognised that at the times when the mother was well there have not been any concerns about the family and until 2011 there was no substantial concerns recorded by any child protection agencies; the three children were all healthy, attending school and nursery and growing up within their family.[6]Both the mother and the father had had difficult upbringings and what was described by the local authority as “complex” childhood and family histories. The father had suffered abuse within his own family and was estranged from his mother and two elder siblings. The mother’s father did not have contact with her from an early age and her mother died when she was only 12; she lived with an elder sibling and then in foster care. The mother has had long-standing problems with her mental health since she was an adolescent; she has extensive contact with Mental Health Services since 2008. The mother has been thoroughly assessed on more than one occasion, including for the hearing which took place in September 2013. She had previously been diagnosed as suffering from a recurrent depressive disorder and treated for depression. The report contained the diagnosis of an emotionally unstable personality disorder (EUPD) or a diagnosis of a mixed personality disorder with EUPD and Anakastic traits. As is apparent from the documents filed in this case the mother’s mental state fluctuates with marked improvement when she takes anti-depressive medication and she is not under stress. The children X, Y and Z all enjoy seeing their mother and, when she is well, they have very happy, stimulating and enjoyable contact with her.[7]The father had a troubled childhood. He was open in describing this to the social worker who carried out a parenting assessment completed in October 2012. It is abundantly clear that that assessment by Beverley Hendry formed the basis of the local authority’s approach towards this family. I shall return to this later in this judgment as it still apparently colours their view of the father. The father’s father was a violent, abusive and controlling man; who physically and sexually abused his wife and his children. There was ineffective intervention by social services and other agencies (the children were not sent to school) and it was not until he was 16 and their neighbour intervened that the local authority took action. After his father was forced to leave the family had to move on several occasions when he attempted to find their location. To his credit the father was able to educate himself and despite inevitable gaps in his knowledge he went to college and gained GCSEs. He has been in work in the past and would like to start working in the future.[8]The mother had self-reported regarding her concerns about the effect of her illness on her family in 2005. The family were referred to social services by the school in 2008 in January and again in April. The father briefly left and returned to the family home in early 2011 because of the mother’s behaviour brought about by her condition which included mood swings, deliberate self harm, impulses to harm her children, difficulties controlling anger and violence towards her partner (as described by the psychiatrist who wrote a report in March 2013).[9]In March 2011 the mother again self-reported about her concerns regarding her anger and that she was frightened of her feelings and of harming the children. She left the family home to stay with friends; she evidently has had insight into her own condition for some time. The relationship between the parents became more difficult as the mother’s mental health deteriorated during 2011. It is not necessary for me to set down everything that has been recorded, but there were several hospital admissions including for overdoses, alcohol abuse, incidents of the mother self-harming and short periods of separation. The father remained committed to the mother and to his relationship with her despite the difficulties and the increasing involvement of social services as a result of reports by him, by the mother and by the children’s school and nursery as the children had complained about their mother’s behaviour at home. In September 2011 the children were made the subjects of Child Protection Plans under the category of emotional abuse. The mother’s mental health continued to deteriorate and the father was advised by the local authority that the children should not be left in the sole care of their mother and that it would be better for the children if the couple lived separately.[10]In November and December 2011 the hospital admissions and attendances at A & E by the mother increased substantially with repeated overdoses and further self-harming. This continued into 2012 when the mother was also subject of detentions by the police under s138 of the Mental Health Act (MHA) 1983 and was assessed in hospital under the MHA. The school mentor contacted social services about her concerns regarding the eldest child (X). The father agreed with the local authority that the mother would only see the children on set days supervised by him. In March it was reported by a mid-wife that the mother was pregnant (with W). The parents had a written agreement that the mother would have supervised contact with the children in their home; however by July the mother returned to the family home with social services agreement. By August 2012 the father was advised, again, that he was not to allow the children to have unsupervised contact if the mother was unwell. In August 2012 the mother was again detained by the police under s136 MHA. She was evidently unwell and the children were reported as saying that they had witnessed more than one incident when their mother had assaulted their father.[11]In October 2012 a meeting before action was held at which the parents agreed to place their unborn baby with the father. They were living separately and talking of remaining separated for a year. The father was offered some support at home. The baby (W) was born on the 9th November 2012 and remained in hospital with her mother until 17th when H discharged herself. W went home with her father. The father was reported as refusing extra help. On the 2nd December 2012 the father took the baby to hospital because she had rolled off the sofa. W was discharged following an examination as there were no concerns, apart from some excess saliva and disorientation. The children had complained at school and nursery X about feeling upset and a nick to her mouth caused when her father had helped her to brush her teeth, and Z about how he had received a minor bruise to his right ear. There were unannounced visits made by the social worker and the father was put under pressure to accept a support worker. When the social worker visited the family home on the 7th December the mother was present and it was reported by the school that one of the children said she had put them to bed earlier that week.[12]On 17th December 2012 the community family worker reported that the father was feeling the pressure of having someone in the family home and that he was clearly upset and reluctant for her to be there. The local authority took the case to court on the 18th December 2012 when an interim care order was made in respect of W only as a result she was removed from her family and placed in foster care. The three other children remained at home with their father under interim supervision orders despite the local authority seeking to place them in foster care. The local authority were concerned that the father had continued to put his relationship with H before the needs and safety of the children.

Care proceedings 2012 -2013

[13]After the hearing on the 18th December the father and the three elder children saw W during contact visits. The children saw their mother in separate supervised contact visits. During 2013 and until the hearing before the District Judge in September 2013, the family were monitored at home by the local authority. There were minor incidents during contact with their mother, mostly when the children became upset, all assiduously reported; as were any complaints that the children made at school or nursery. Z complained about his father hitting him and being sad, Y was upset and difficult during contact and from time to time at school and X was reported at school as expressing her anxieties about the care proceedings and the effect of those on life at home.[14]During the spring and summer 2013 the mother’s mental health again deteriorated and she was admitted to hospital as a result of overdoses. At the same time against the backdrop of public law proceedings the father’s relationship with the social worker also deteriorated. Y had continued to display difficult behaviour at school and X to express her anxieties. A psychological assessment, dated 28th April 2013, of all 4 children was carried out by Gail Miller; running to some 159 pages it is a comprehensive assessment which was considered by District Judge Gamba in September 2013. The crux of the local authority’s case was the emotional harm caused to the children by their mother’s ill health and the inability of the father to prioritise the children’s needs relative to the needs of the mother. Ms Miller shared the concern and saw the father as focussing on keeping the family unit together rather than seeking a safe distance from the mother both for the children and to allow her the space to recover. The father was seen as being resistant to professional or therapeutic work to support him in finding a healthier relationship with the mother and changing his priorities from partner to parent; he was not able to emotionally separate from the mother. Ms Miller describes him as lacking acceptance and understanding of the concerns of professionals and said that it meant he was denying the children’s experiences. However she refers, on several occasions, to his many skills as a parent and to the children’s strong attachment to him as their father. In her report she recommends that W should be placed at home with her father and siblings, a recommendation she described as “finely balanced”, and which she changed during her oral evidence. She ends her written report by making reference to the significant loss that W’s siblings would experience should she be placed away from the family.

Threshold criteria: s 31 Children Act 1989

[15]The overarching concerns about the children’s safety and well being resulting from their mother’s chronic mental ill-health remained when the case came before the District Judge. Both parents accepted that the threshold criteria as set out in s 31 of the Children Act (CA) 1989 had been met which would allow the court to make care orders or supervision orders under the CA. In the judgement the District Judge failed to set down the threshold criteria on which he was basing his decisions as to the children’s welfare. The learned judge said under the heading “Threshold” that “The mother accepts the criteria are met. The father has made concessions also the majority of these [sic] and that the children have suffered emotional harm as a result of the parents’ relationship and the mother’s mental health and alcohol issues and his lack of awareness or insight of the stress he was under in December 2012.What hedoes not accept is the allegations in respect of the ‘toothbrush’ incidentwith [X] in November 2012 and the injury to [Z]’s ear in December 2012. Insofar as the toothbrush incident is concerned, there is no medical evidence to assist. We have [X]’s account of how this came about, but true to say that she had in the past apparently said things had happened to her which were not in fact true. I am unable to find on the evidence that the father ‘shoved’ the toothbrush as alleged. As to the injury to [Z]’s ear, there is no reliable medical evidence and one sees that [Z]’s evidence do in fact differ on occasions. I am unable to find evidence to support this allegation. I am satisfied however otherwise the threshold is crossed.”[16]There are no details of that “otherwise”. Fortunately in reaching a decision as to W’s future welfare and placement I am not directly concerned with the threshold at the time the care and placement orders were made; indeed those orders are no longer extant as a result of the decision of the Court of Appeal. Importantly, in respect of W, no findings were sought or made regarding the baby falling off the sofa.[17]The District Judge was very critical of the social worker’s (Ms Hendry) evidence calling it “unconvincing” and “totally focussed on one aspect namely the ability of the father to change.” Despite advocating the immediate removal of the three older children based on a decision reached at an unrecorded meeting in May 2013 between social worker, managers and solicitors, Ms Hendry had not assessed the effect on each child of such a removal and was unable to address it in her evidence. The district judge went further and said that she should be replaced as the allocated social worker for the family.[18]The parenting assessment carried out by Ms Hendry in October 2012, as I alluded to above, formed the basis of the local authority’s case and continued to inform it even after her oral evidence had not been accepted by the court. The evidence of the social workers now allocated to this case continued to focus on their perception of the father’s inability to change or accept the need for change (although the circuit judge had given him permission to oppose the adoption of W precisely because he had changed his circumstances). Despite the fact that there were no findings of physical abuse these allegations continued to be repeated by the local authority and, I repeat, their concentration on “the need for the father to change” remained a constant part of the local authority’s case and the basis for their opposition to his attempts to have W returned to his care. In September 2013 the court found that the father provided “very good care” and was satisfied that he had separated from the mother and “had reached a turning point recognising that he must concentrate on the care of the children to the exclusion of his relationship [with the mother]. I am satisfied that he is intending to address his difficulties and has started to do this by engaging in counselling. I am satisfied that the children are for the main part doing well at school. I am satisfied that they have significant attachment to their father,”[19]The decision to make a placement order in respect of W was made, it seems, for the reason that to return her to her family would be likely to destabilise the father’s ability to care for the other children. On 6th May 2015 the Court of Appeal set aside the care and placement orders and the welfare determination of District Judge Gamba, which was described as “erroneous” [45]. Moreover the local authority accepted that: “...that these few lines do not meet the standards of judicial analysis identified as necessary in the sequence of decisions beginning with Re B [2013] UKSC 33 and Re B-S or, frankly, those decisions which predated them (For example Re B (Appeal: lack of reasons) [2003] 2 FLR 1035).” (Paragraph 40 of counsel’s skeleton argument before the Court of Appeal).[20]In the light of the local authority’s stance in the Court of Appeal it was most regrettable that before me they continued to place emphasis in their approach to this case on the need for the father to accept their view that his own experiences as a child made him unable to accept help and advice; as exemplified by the evidence of the current social worker Lucy Wilkinson. Their view of the father seemed to remain unaltered despite the fact that he had remained separated from the mother; had been to counselling and was successfully parenting three children on his own. The evidence of Dr Willemsen, a clinical psychologist instructed to prepare a report on all four children within their current placements for the purpose of this hearing is to the contrary and I shall return to it when I come to consider the evidence before me in detail later in this judgment.

Adoption proceedings

[21]The adoption order application was issued on 14th May 2014. District Judge Gamba refused the father permission to oppose the making of an order on the 30th July 2014 and an appeal against that decision finally came before His Honour Judge Farqahar on the 7th and 12th November 2014 when a judgment was given allowing the appeal and, following a contested rehearing with oral evidence on 15th and 19th December 2014, permitted the father to oppose the adoption, however the father’s application for permission to appeal out of time against the care and placement orders made by District Judge Gamba was refused. It was the appeal against the refusal of permission to appeal out of time that was heard by the Court of Appeal on the 6th May 2015.[22]The opposed adoption application was transferred to the High Court and came before Mrs Justice Theis on 9th February 2015; at which hearing comprehensive directions were given including for the instruction of expert witnesses, disclosure and timetabling of evidence. At the time the case was listed before her for four days commencing the 19th May 2015, however on the 16th March 2015 the case was allocated to me to be heard over five days beginning on the 18th May 2015.

Appeal

[23]The decision of the Court of Appeal in the judgment of Lord Justice McFarlane was made available to the court and all parties prior to the hearing and the witnesses were given an opportunity to consider the judgment. The judgment set out the court’s reasons for granting permission to appeal out of the time limits prescribed by law (relief from sanctions) as the circuit judge had not considered the merits of the appeal. Referring to the judgment of Lord Justice Moore-Bick in R (on the application of Hysaj) v Secretary of State for the Home Department [2014] EWCA Civ 1633 McFarlane LJ described the merits in this case as strikingly clear and the consequences of the order, namely the implementation of a plan for adoption were at the highest end of intervention in a family case. Further the district judge’s analysis in respect of the placement order was insupportable and the same circuit judge granted the father permission to oppose the adoption.[24]The unanimous Court of Appeal judgment considered that the grounds of appeal filed on behalf of the father were unanswerable. The fact that W’s welfare was to be investigated by the High Court indicated “that it is entirely right that this court should now set aside the district judge’s welfare determination with respect to W and the consequent full care order and placement for adoption that he went on to make so that erroneous determination and the orders that flowed from it can have no bearing on the unenviable task that Russell J now has to undertake in determining where the best interests of this young child may lie.”[45][25]As observed by the Court of Appeal [5] the analysis of the district judge in respect of the outcome for W was contained in three sentences “I feel that the father does have further work to do in relation to his own situation and that coupled with the care of the three older children will occupy his time fully. I feel that the risk to W of returning to the father’s care at this time is too great for the reasons given by the Guardian and [expert], and that therefore the only order to be made in her best interests is as sought by the local authority for a placement order. I also consider that the welfare of the child requires me to dispense with the consent of the parents.” At [21] the court referred to the argument by counsel for the father concluding that it was clear that the application to appeal the judgment of the district judge must succeed [25].

Family background 2013 -2015

[26]Since September 2013 X, Y and Z have continued to live at home with their father. They have regular contact with their mother when she is well. Until November 2014 the father was responsible for arranging contact which was supervised by friends of the family. Direct contact was suspended in December 2014 with the local authority providing supervision from its resumption in February 2015. This contact is beneficial to the children in several ways including providing reassurance to them about her well being, providing time for the children to enjoy being with their mother, who they love and providing a continuing relationship with their mother which is important for their self-image and sense of identity. The children are all doing well at school and they all have a positive relationship with their father. In his statement to the court the father has described each child (I shall return to this below when I consider all the evidence that was before me).[27]The father completed the counselling he had started when the case was heard in September 2013. It lasted for 11 months and he met the expenses out of his own pocket; although there is no objective evidence in support the local authority continued to express concerns about “unresolved trauma” and hypothesise about its effect on the respondent father and his ability to seek appropriate support when necessary.[28]As observed in the Court of Appeal judgment [8] matters have moved on for W as she was placed with prospective adopters in January 2014. W has settled into their home over the past 16 months. They had taken on the care of W without any indication that the underlying care and placement orders might be challenged and overturned [27] and were neither prepared for, or assessed as potential long-term carers in case of such an eventuality. Their application has transformed into a case that they did not expect and they have, no doubt, been both distressed and stressed as a result.

Evidence

[29]I have had the benefit reading the documents filed in these proceedings and many of those filed in the public law proceedings, including statements filed by the father, by the mother and by social workers. There have been social work records and emails filed. Mr and Mrs A have filed a joint statement. For the purpose of this application two expert reports were prepared by Dr Hessel Willemsen, a clinical psychologist, dated the 7th April 2015 and by Mark Hatter, an independent social worker. The children’s guardian filed a “Final Analysis” dated the 27th April 2015 and an addendum to that nearing the end of this trial on the 20th May 2015.[30]I heard the oral evidence of the father and of Mr and Mrs A. It was not considered necessary to hear from the mother who, although well at present, continues to suffer poor mental health and is not putting herself forward as a carer but rather as a mother who will see her children, including W if she is living with her family, when she is able to do so in circumstances that benefit the children. I heard from Dr Willemsen, whose evidence I found to be of considerable assistance; as was that of Mr Hatter; the current social worker Lucy Wilkinson and her practice manager, Gail Alsop; I also heard from Keli Reains, W’s allocated social worker. As there is no dispute that the children are all doing very well indeed at school and that the school enjoys an excellent relationship with their father I did not hear any witnesses from their school.[31]Expert evidence The reports of both expert witnesses were prepared before the outcome of the appeal was known. Both Dr Willemsen and Mr Hatter had recommended that W remain in her foster placement on balance, and both had based their decisions, to some extent on the continuing concerns of the local authority about the father’s ability to manage the difficulties that are likely to arise should W return home because of the poor relationship between the father and the local authority. Dr Willemsen (at paragraphs 89 and 91 of his report) said that he was, in turn concerned that the relationship with the local authority “is such that there could not be a mutually responsive interaction which could support [the father] when looking after four children.” He was worried that as a result of being unable to form a working alliance a breakdown could occur “which would cause further, perhaps unrecoverable trauma for [W]”.[32]Mr Hatter was obviously influenced by the local authority’s views which included their concerns set out in paragraphs 63 to 69 as to whether the father was “emotionally available to [sic] the children and how he is able to attune to their needs”. He was also very worried about the size of the family’s accommodation (a two bedroom flat) which formed part of his reasoning for recommending that W should remain with the applicants. Mr Hatter apparently relied, to some extent, on the report of Gail Miller who in 2013 had recommended that W be returned home; referring to the fact that she had described her conclusion as finely balanced he quoted her as saying that she “would be very concerned that returning [W] to the family would precipitate further distress for [the father], leading to a risk of further physical harm but also leading deterioration in his responsiveness to the children.” It would not be acceptable to rely on this view of Ms Miller as there have never been any findings that any of the children suffered physical harm at the hands of their father.[33]In the event both experts, while considering that the case remained difficult and that there were likely to be distress and difficulties for W in moving after over a year in her current placement which the father would have to manage along with the other children’s needs, changed their recommendation to this court and in their oral evidence recommended that W return to live with her family.[34]Dr Willemsen had seen all four children as part of his assessment. The three elder children with their father and W at home with the As. In addition to the local authority’s concerns that the father is not able to work “openly” with them, and their view that he is so traumatised by his upbringing that he cannot always relate to his children on an emotional level they have expressed the view that the eldest child takes on a parenting role which is inappropriate. It is the view of this court that in his report and oral evidence Dr Willemsen, who is properly qualified to do so, dealt with all these points and more. In short, as is evidenced in full in his report, he found the father to be open with him both about his abusive upbringing and about the difficulties the father and his children had faced in the previous few years. Dr Willemsen found that the father co-operated well with the assessment both verbally and emotionally. He commented that the father may have genuine concerns about the actions taken by the local authority and that would contribute to the father’s anxiety and ability to work with the local authority (a theme I shall return to below). In his view the “father had come a long way in that he was able to speak of his childhood and the trauma he suffered. He has looked after the three children and has worked hard to have the children develop a strong and secure attachment to him”; an opinion reflected in the judgment of His Honour Judge Farquhar.[35]Dr Willemsen had found nothing to concern him about the three older children’s attachment to their father “or in some way question the security of the attachments the three children have with their father. I thought he was an organised man who was dedicated to his children, who took the initiative in relation to their imagination and could play with them”. He did not, either in his report or when questioned express concerns about the eldest child X being placed in the role of carer or being given, or taking, too much responsibility. He said, and I accept, that the strong attachment together with a separation from their mother had positively affected the children’s attachment to their father. Moreover as he said the children appeared resilient and that was evidence that they must have received some stable emotional care, both when the parents were together, and at present to come to where they are now. In addition he observed that the family appeared to manage in a very small flat. This represents the most objective view of the current circumstances of the father and the three older children and is the situation to which W would return.[36]I found Dr Willemsen’s evidence very thoughtful, well balanced and fair, he remained focussed on W throughout his assessment and his oral evidence was largely taken up with the effect on her of moving her both in the short to medium term and in the long term. Dr Willemsen properly took into account the decision of the Court of Appeal and reviewed his recommendations as a result. It would be accurate to describe his original recommendation that W should remain with the prospective adoptive family as finely balanced. He described the distress, if not trauma that W would be likely to experience on being moved from the people with whom she had been living for a sizeable period of her short life and where it had been intended she should have her home. W had been moved three times before she was placed with the As and, moreover, Dr Willemsen considered that the clinging behaviour exhibited by W when visited by the foster carers after she was moved was indicative of trauma and not of easily settling with the A family (as had been suggested elsewhere in the evidence before this court).[37]Against the likely trauma of a further move Dr Willemsen carefully balanced the advantages and benefits to W of being brought up within her own, birth family at paragraphs 94 to 99 of his report and again balanced them against her remaining where she is at paragraphs 101 to 107. The disadvantages of W remaining with her current carers notwithstanding the excellent care she receives there concerned the child’s own perceptions as she grew of why she was not living with her family when her siblings had remained with her father; while in to short term this would have little impact “in the mediumterm, when [W] will become aware of her adoption she may begin to raise questions about the reason for being adopted. The manner in which she responds to gaining more knowledge will depend a great deal on the support she receives from her adoptive parents”. I pause here in reviewing this expert’s evidence to observe that Mr and Mrs A had not been prepared by the local authority as the adoption agency for dealing with a child who would present many difficulties regarding the reasons for her adoption in the future.[38]When Dr Willemsen came to give his oral evidence added to his consideration was the effect on W of finding out not only that the orders upon which her placement for adoption had been overturned but that the people who she was placed with had actively resisted her reunification with her family. Ms Bazley QC for the father described W’s circumstances (which she not aware of at present) as being the subject of a process leading to her placement with her adopters which is “fundamentally flawed and a miscarriage of justice”. It is arguable that is so and it is probable that it in due course it would be seen as such by the child at the centre of that legal process. As Ms Bazley said in her closing submissions it has become an integral and inescapable part of W’s personal history and her lifelong reality.When Dr Willemsen was asked what his recommendation was in the light of that reality he said that the case had “preoccupied [him] greatly” and that he continued to regard his recommendation as being “very finely balanced”.[39]I refer to the notes of Dr Willemsen’s oral evidence produced by counsel for the father and from my own note of evidence; in speaking of the situation for W in the light of the Court of Appeal’s decision as follows; “if a decision was made that was not correct, then the evidence that it will not work will need to be very strong to keep her where she is. It is very difficult to know how she will grow up. She might stay with the adopters (and a lot do ask, and some don’t) but I do think if she would ask why am I here, how can you explain that based on the decision made by the Court of Appeal. She can raise all sorts of questions – she had three siblings, she has another sibling, their son. She is part of this family, she is doing wonderfully well. I have so much respect they have made so much time available but I think that these dilemmas are very powerful. Having been told about the Court of Appeal this resonated with the preoccupation of belonging. Where does she belong? It is so important and it is this: should she stay with the adopters, should she begin to raise questions, it might be very disturbing…” He continued his evidence by saying “What is fundamental to identity is a sense of belonging. Belonging is a sense of where you are, who the people around you are and what they mean to you and what is your home.”[40]There is not any method by which the court can be certain as to how this child would react in future if she was to remain with the prospective adopters; as Dr Willemsen said the court has to deal with parts of the unknown. He went on to say, “The word that comes to mind is tragedy. There is something really tragic about what’s happened and some people are going to feel very hurt. Something been set in motion and is very difficult to know how she will take all this and how early disturbances of care will play out in connection with the information of what will happen. In longer terms when I weigh [it up]. Such a move [to return to her family] will be hard work if it happens [and the authorities responsible] will have to set proper containing space and put in place [support] to make transition as easy as possible. No doubt [it] will be traumatic.”[41]Dr Willemsen was clear when I asked him that he had thought hard about this child and what was best for her throughout her life; he said when he was preparing the report in the first instancehe thought “this child belongs with her father, that was the starting point, then I became very worried about child and good attachments and at that time had the legal evidence as it was she should stay. This verged [sic] me towards thinking I am really worried about this child moving. The additional evidence there is now is a father by going to the Court of Appeal says ‘I want to be a good father to my child’ and further evidence that [he] understands some of [her] needs. So I think it is clear to say that it has changed. I think most important argument knowing what Court of Appeal decided what are you going to say to child when she is 12 or 13 or 14 what are you going to tell her and say? What are you going to tell her? This is a miscarriage of justice. Much will depend on how will she take it. This argument is the one that went through my mind if she comes to ask”. When asked on balance what he thought he said, unequivocally, “I think she returns to her father.”[42]Mark Hatter is an independent social worker with considerable experience of social work and, in particular, with working with adolescents when adoptive placements have failed and broken down. He had seen the father and the three children at home and had made very positive observations of their father with X, Y and Z. He too had felt able to work with the father, was impressed by the children and found their father to be responsive to them and managing the family in what is a very cramped environment. Mr Hatter found the family as a whole had a strong awareness of W and that her return was something that X wanted, which may lead to a reduction in her anxiety. His recommendation altered when he gave oral evidence to the court when asked he said “[The recommendation] is still extremely balanced but in light of those changes I would have to support the return of W [to her family].” The changes he referred to were the evidence of Dr Willemsen and the decision of the Court of Appeal.[43]Mr Hatter observed that he had not had long to consider those changes and he had not heard the evidence of Dr Willemsen, but asmuch of his opinion was based on the attachment of W to the adopters and as he is not a psychologist and he would rely on Dr Willemsen and as his recommendation has changed he would acknowledge and respect that change. He voiced the same concerns for W going up in an adoptive placement with the background of this case and said “I struggle with what W’s journey would now be in terms of being an adoptive child when backdrop to the case appears to be care and placement orders now set aside and I struggle to understand how she would cope with knowing that at some stage whilst also knowing has three siblings remaining in the care of her father and on balance I believe that with very clear support to the father that with the father fully engaging with that support that the potential harm to W of being adopted in the present circumstances versus potential of remaining within her birth family outweigh [adoption]and make me wish to change recommendation. Though I again stress it is very finely balanced in my professional opinion and I would still hold concerns however now faced with other concerns for W if she remained.”[44]He had based his original recommendations on matters that were relied on by the local authority as I set out in paragraph 32 above; most of which are without foundation, as can be seen from the evidence of Dr Willemsen. Mr Hatter said that he found the father to be “completely open to working with me.” He was also very concerned about overcrowding; an issue which cannot weigh heavily with this court as it affects so many low-income families and cannot be the basis for the permanent removal of children from their families. Mr Hatter urged the local authority to support an urgent move for the family to larger accommodation. I am assured by counsel on behalf of the local authority that such support would be forthcoming. He said that bearing in mind the cramped surroundings he was most impressed by the children, their interaction and the father’s management of them. He praised the children’s mother for the position she had taken which he described as “good”. He spoke of X, who as the eldest and a girl had the response of wanting to help and voiced the, wholly reasonable, opinion that she could do with some individual support, perhaps from a mentor, and “time out”.[45]As to the father seeking help and support when and if necessary Mr Hatter emphasised that it was a two-way street and that the father had to feel that he and the local authority were working from the same sheet. He said that from his observation the father was not a man seeking victory as his empathy towards the adopters was real. Moreover the father acknowledged he’d need support and would appreciate support from the local authority. Mr Hatter felt that the biggest remaining upset within the family was that W was missing and they saw themselves as disjointed; although he still had concerns “the balance moved to W going home.”[46]Mr Hatter has had experience of teenage adoption breakdown both as an independent social worker and a social work manager and he anticipated difficulties for W in the future if she finds out the circumstances of her adoption. He considered that she would find out and would be upset and feel anger about the adoptive placement. Mr Hatter had pointed out in his report at paragraph 76 that should W remain in the adoptive placement she would be likely to want to have direct contact with her parents and siblings in the future, particularly as her siblings remained living with their father. “It will be relatively easy once W has unsupervised access to the internet and Facebook for her to make contact with her family should she wish to do so which will be in turn a challenge for her adoptive parents to deal with and to manage. I am concerned that this situation may be compounded if there is the potential of the family moving abroad during W’s minority.” He went on to say, in his oral evidence, that it was a valid point to add to the likelihood of breakdown the fact that the As are part of these proceedings and voicing resistance to her going home. He saw the difficulty as being that W was securely attached to her current carers but that the change was a positive one of being back with her birth family; there would be losses but also gains. In the longer term, if the local authority works with the children’s father, there is a lot more to be gained by going home.[47]Social work evidence I heard the oral evidence of Lucy Wilkinson the current social worker. She had not filed a statement but her practice manager Ms Alsop had done so which was largely based on Ms Wilkinson’s interaction with the family; I am still unclear as to why the evidence was produced in this way and, although Ms Wilkinson denied it, it seems the likely explanation is that she was not considered to have been a “success” as a witness in the previous hearing in December 2014 when permission was given to the father to oppose the adoption.[48]The statement of Ms Alsop, in addition to containing evidence which could only be attested to by Ms Wilkinson repeated outdated evidence (of Gail Miller) and what can only be described as psychobabble about the effect on the father’s parenting of his own childhood experiences. In short it voiced opinions which neither Ms Wilkinson nor Ms Alsop are qualified to make. I give two examples only; at paragraph 4.6 statement of Ms Alsop dated 2nd March 2015 it reads“[the father] is unable to have a dialogue with the children about [W] as it is too painful to him. It is my opinion that due to [the father]’s own experience, this has had an impact on his emotional intelligence and that is so poor that he may not be able to put himself in his children’s position and think from their perspective. His own adverse childhood experiences may have led him to develop maladaptive strategies in order to protect himself from his own experiences and his therefore not able to acknowledge the difficult experiences of his children and the difficult experiences they have suffered.” Not only is this evidence entirely at odds with the evidence of the qualified clinical psychologist Dr Willemsen, it is not supported by any evidence from the school or the observations of independent observers such as Mr Hatter; both in the care proceedings and in the adoption application the local authority has given insufficient weight to the observations of professionals working with the family apparently where that evidence does not accord with its case. The wholly positive and unchallenged evidence regarding the parenting skills of the father of the Family Support Worker, the health visitor and the school welfare officer is barely touched on.[49]In paragraph 6.8 in an attempt to dismiss the counselling the father has undertaken and to build their case against him they say “I am aware that the father has undergone counselling at the R clinic but it is my opinion that the trauma C has suffered in his own childhood is still unresolved and this is impacting on his ability to offer attuned parenting to the children. Research strongly suggests that [reference to part of a sentence from a publication identified only as Cozolino 2002, The neuroscience of psychotherapy]. I would question whether the father uses disassociation as a defence against the trauma he has suffered, as a coping strategy to stop thoughts and memories causing anxiety.” This opinion is used to justify comments about his alleged inability to cope with and provide for the individual needs of each of his three children. Again there is no evidence to support these assertions either from the school or in the assessments of Dr Willemsen and Mr Hatter, whose evidence I prefer. The continued reliance on the report of Ms Miller (which is clearly out of date) alone raises questions as the validity and substance of any view expressed by the social workers but the continued references to the father not being able to put into practice what he has learnt after engaging in parenting work at paragraph 6.20 are almost risible when considered against the evidence of Dr Willemsen and Mr Hatter.[50]To describe the social workers’ written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge. Moreover it would seem that the actions of Ms Alsop led directly to the father losing his job. The circumstances in which his employment with the B School was terminated came about because Ms Alsop raised the matter with the local authority designated officer (LADO) in an email on 19th February 2015 in these terms “the father has secured employment as a teaching assistant at B School. I presume that the school will have done checks and seen the father is working with us…” This is hardly likely to suggest that social services in the person of Ms Alsop are keen to ensure that the father retains his position.[51]The LADO sent an email to the head teacher which included the following sentence. “There were further concerns reported in December 2012, directly in relation to the father, when a child sustained an injury whilst in his care and another alleged that he had smacked him sustaining an injury to the ear”. This was contained in an email which set out that the significant harm threshold had been met although reporting that the orders which had been in place had lapsed. Neither “injury” had formed part of the threshold. The local authority tried to excuse the misleading, damaging and inaccurate referral as a consequence of difficulties presented by the CareFirst IT system. I do not know whether or not the fault with that system is capable of correction. In raising the father’s employment with the LADO in February 2015, Ms Alsop had a professional obligation to ensure that balanced, accurate information was conveyed to the LADO and then to the school; she failed to carry out that obligation and in her duty to act openly. It is likely that had the school been presented with the full story based on balanced information and given the positive view of the father’s work at the school that his employment would not have been terminated, along with the positive benefits for him and his family of him being in work.[52]I agree with his counsel that the father has borne the loss of his employment with great dignity. The local authority is obliged at the very least to take positive steps to ensure that the information held by the Disclosure and Barring Service (DBS records) in respect of the father is now accurate and that this error is not compounded by further loss or inconvenience to the father in future. In the light of their unprofessional behaviour and their negative view of him both as a father and as a individual as expressed in their evidence there can be little wonder if the father finds it hard to trust the local authority and to work with them from time to time. It is largely their responsibility to repair their working relationship with him; the father’s measured response to the local authority gives me reason to believe that he will play his part not least as he fully understands the need to do so for the sake of all his children.[53]Guardian’s evidence At the hearing before the district judge in September 2013 the guardian produced a brief report that was scant of any real analysis and which failed to set out the reasons for and against permanent placement outside her family. Re B-S, though heard on 22nd July 2013, was handed down on 17th September 2013 (2 days prior to the reserved written judgment being handed down the hearing having taken place earlier in September), as Lord Justice McFarlane said at [22] of his Court of Appeal judgment in this case “Although the district judge may not have had any knowledge of this court’s decision in Re: B-S, which was only handed down some 2 days prior to the district judge’s judgment, Miss Branigan submits that the district judge should have been fully aware of the Court of Appeal decisions given some two or three months earlier upon which much of the judgment in Re: B-S was based (Re R (Children) [2013] EWCA Civ 1018; Re G [2013] EWCA Civ 965; Re S (A Child) [2013] EWCA Civ 926).” The guardian should have been aware of the decisions which preceded B-S at the time of the hearing in September 2013.[54]The lack of any real child-centred analysis within these proceedings is inexcusable, the report he filed on the 27th April 2015 contained very little analysis (in barely two pages from the foot of page 7 to the foot of page 8 setting out what he considered to be the “essential balance”) and certainly not the table setting out the advantages and disadvantages to W of adoption, which he was advocating, that the court could expect from the child’s guardian. Moreover Mr Madge explicitly criticised the father for pursuing multiple applications and appeals, which he described as at sixes and sevens with each other and blamed him for causing significant delay for W. He clearly accepted the local authority’s view of the children’s father describing the father as a thoughtful man whose reflection of W’s situation was “systemically closed”. I do not know to what he referred as it is a jargonistic phrase empty of meaning, unaccompanied by an explanation.[55]I expressly asked Mr Madge to provide the court with a balanced analysis at the outset of the hearing and he did so, finally, on the 21st May 2015. His counsel complained on his behalf that the court had prejudged the issue; in fact it was he who had done so. He did not attend court for counsels’ final submissions. The import of his last report was to swing behind the expert opinion but he was rancorous about it and I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance.[56]Richard Madge had been the guardian for all four children in the public law proceedings. Yet he failed to put forward the case for W’s siblings who all want her to come home. He did not visit W’s mother or seek her views during the course of these proceedings and – having visited W’s siblings in December 2014 – did not visit them again or ask for their views in advance of the hearing in May 2015. This guardian has been involved in the proceedings from their outset in December 2012. I accept the submissions of counsel for the father and for the mother that it was immediately apparent from his evidence that the guardian has failed to understand the requirement for a holistic analysis of the evidence or to engage with the possibility of W returning to her family in an appropriately open minded manner. This was evident from both his reports and from his oral evidence. His explanation that the impact of Re B and subsequent Court of Appeal cases including Re R, Re G and Re S had not been appreciated at the time of the final hearing in September 2013 was not acceptable. His counsel’s submission that the court had pre-determined the case when he was reminded of the requirement for a proper analysis was inapposite and defensive.[57]In opposing the father’s application to bring his appeal against the care and placement order out of time before His Honour Judge Farquhar the guardian and W’s legal representatives set to prioritise a resolution in favour of adoption over any investigation of reunification and the rectification of an obvious injustice that W had suffered. The views of her siblings were not put before the court by the guardian at the final hearing; they should have been. In relation to opposing the father’s application for leave in circumstances where he had so clearly demonstrated substantial and positive changes the guardian was so closely aligned with the local authority’s position that he evidently felt unable to support a full assessment of the potential for rehabilitation.[58]The father’s evidence the father had filed statements in support of his opposition to adoption; he also gave oral evidence. I found him to be an open, credible and thoughtful witness albeit somewhat given to using the jargon which he must have picked up during this prolonged litigation. He very clearly loves all his children, including W and is devoted to them. I found him to be remarkably forgiving and understanding of social services, which gives me cause to believe he would work positively with them in the future (providing they are working with him). He was realistic about the difficulties that he would encounter should W return home speaking of when the excitement is over for the older children and the need to devote extra time with her. He explained how he had experience of doing this in respect of Z, the youngest child at home, and how he has been able to get the elder two to accept the need for the unequal division of his time.[59]In his statement to the court (dated 21st April 2015) the father described each of his children individually and in respect of their roles within the family and if W was to return to live with them. The father reminded the court that X was due to go to secondary school in September 2015 and, he said, was being prepared for travelling to school by bus. He reject the local authority’s claim that she was being made to take up responsibility for parenting the younger two to make up for deficits in his parenting; in this he was supported by the independent evidence of both Dr Willemsen and Mr Hatter. He said he would never allow the role of parent and child to be reversed particularly if W were to return. I accept his evidence. X is supported emotionally both at home and at school as are the other two. Y is in year 3 at school is doing well and his behaviour has improved both at home and at school. Z is in year 1, his father describes him as a wonderful, cheerful little boy; well-behaved at school and popular with his peers. All three sound delightful, well balanced children who have shown resilience and who are secure in their relationship with their father.[60]The father described how all three children had been shown a recent photo of W and had been very happy to see it, although sad that they were not permitted to keep it. The father acknowledged that W had changed a great deal since they all last saw her in October 2013. He reminded the court that he and her siblings had had excellent contact with W (which is not disputed) and it is the view of this court that it likely that she will have some residual memories of her family from that time. In his statement the father went on to remind the court that he had demonstrated his parenting skills since the hearing in 2013 (as supported by the expert evidence I have already alluded to) and said that he was “completely committed to all of his children and love them unconditionally.” I entirely accept his evidence in respect of his devotion to his children and that this devotion extends to W.[61]In his statement the father said that “Everything I have heard and read emphasises that it will be a difficult process for [W] to return home … the father quotes from Mr Hatter’s report and says that Dr Willemsen’s view is the same and will require a great deal of emotional input on his part, he goes on…I do think that I will be able to meet the demands that this would place on me. In his report Dr Willemsen acknowledges the progress I have made and the fact that I have ‘looked after the three older children and has worked hard to have the children develop a strong and secure attachment to him.’” The father quotes Dr Willemsen’s opinion that he (the father) has developed his ability to reflect. This is borne out later in the same statement where the father describes how he has reflected on the management of W’s transition to his care and how it could be managed and his willingness to include Mr and Mrs A, to pass on letters and pictures and to encourage direct contact (if the As can thole it) is indicative of the open and generous approach to the proposed adopters; there is not the slightest sign of rancour or resentment.[62]In his oral evidence the father went on to describe how he understood that for W re-unification would be a very delicate matter that would require assistance and that he would be very receptive to working with the expert assistance of a psychologist as “I feel it is quite necessary to have W handled very carefully.” He went on to say that it was a very challenging setting, that the family would have to get used to reality and that the initial excitement may actually be a problem; they would need guidance with how W is going to feel. At no point during his evidence did I get the impression that heminimised any future difficulties or was unwilling to accept, or to seek out support and professional assistance to enable W to successfully traverse the transition from the adoptive placement to her place in her birth family. He was both appreciative of the care that the As had given W and of their position. He was genuinely warm in his comments about them and sympathetic towards them saying that he knew that they would be a loss for W and that W leaving their care would be extremely difficult for them. He said he would do whatever he could do to help and “to show them…to reassure them and to thank them for what they have done is priceless.”[63]The mother’s evidence I did not hear from W’s mother who is still subject to periods of mental illness. I remain aware that it was the effects of that illness that had led to the local authority’s involvement and care proceedings in 2012. The father and the mother have remained separated and he has quite evidently put his children before his relationship with the mother. In turn she has taken herself away from the family and only sees the children when she is well and able to do so. By these actions both parents have put their children first. The relationship between the father and the mother had come to an end before the hearing in September 2013 and it is not an issue before this court. W would not be likely to suffer any harm as a result of her mother’s mental ill health as the mother only has contact with the children when she is well. She proposed that any contact with W after reunification would be once she is settled and it is safe for her to spend time with her mother along with her siblings.[64]Applicants’ evidence I have not set out very much in the way of detail about the prospective adopters Mr and Mrs A as yet in this judgment. This is in part to protect their privacy but it is also as there is no dispute or argument about the very high standard of care they have provided for W who is now part of their family and who they had intended should remain with them throughout her life as their child. Through no fault of their own they have been placed in an unexpected, distressing and difficult position. They have been forced to take a stand against W being reunited with her family and it is clear that they were unprepared for dealing with such an eventuality. Mrs A told me that should W be reunited with her family she was not sure that she could visit her or see her and could not undertake the transition they had had with the foster carers as they did not think they could handle their own emotions. While that stance is entirely understandable it is indicative of their limitations in putting the child’s interests before their own. They were not able to tell me, except in the vaguest terms, how or when they would explain to W how she came to be in their care. They had not, in any practical sense, planned for what they would tell the child or for her reacting negatively to what she is told or finds out; the latter being more problematic particularly if what she is told by her adoptive parents does not coincide with whatever she uncovers.[65]In cross examination Mrs A said that they would tell W that “it was safer to be with us rather than with her father”. This is not an accurate description of the reality of the family’s circumstances both at the time the care and placement orders were made, as the case has unfolded and in the light of the fact that the care and placement orders which allowed W to be placed with them have been set aside. At the time the orders were made it was largely because there were concerns that the father may have difficulties dealing with four rather than carrying on with three children at home. Mrs A repeated, when questioned further, that she felt “they would not be able to handle meeting W’s father and mother”.[66]Mr A spoke of the relationship W had with his parents who he had seen regularly and who she would call up on the iPad, so good was she at using it. This is an indication of how quickly children become conversant with the internet and it was clear to me from their evidence that Mr and Mrs A had little realisation of the limits of their control as the child grew of her own ability to contact her siblings or other members of her family. They had not considered how they would explain to her their role in these proceedings which would, undoubtedly be seen as their resistance not only to reunification but to contact with her siblings and original parents as she grew up. They are not prepared for future disaffection and their resistance to post adoption sibling contact indicates that they need W to be exclusively a member of their family despite her need to develop a healthy and open sense of own reality and identity. None of this is said by way of criticism rather it is a reflection of the increased likelihood of a breakdown of this placement in the future as referred to by Mr Hatter. As I am charged with W’s welfare throughout her life it is something which I must consider and keep in mind.

Law

[67]The care proceedings were revived by the Court of Appeal which set aside the care and placement orders made by the district judge on 19th September 2013 and made an (interim care order) ICO as a holding position pending this hearing. The local authority did not seek any public law order at the conclusion of this hearing and the decision for this court is as between a child arrangements order in favour of the father or an adoption order in favour of Mr and Mrs A. Though the local authority does not seek an order the threshold remains as found by the district judge in his judgment dated 19 September 2013 which has not been the subject of challenge. The father relied, in his appeal, on a lack of proportionality in the plan for the adoption in light of the threshold found at the time (and which I have set out above) and did not challenge the finding of threshold as at the relevant time, in December 2012.[68]The right to respect for family life pursuant to Art 8 of the European Convention on Human Rights is engaged in respect to the father, the mother, W and her three siblings and to the A family. As observed by counsel for the father it is unfortunate that the interests of X, Y and Z are not separately represented at this hearing. W’s rights under the UN Convention on the Rights of the Child are engaged. I have in mind the following Articles of the UNCRC, Art 9.2 of which also applies to X, Y and Z. Article 2 1. States Parties shall respect and ensure that the rights set forth in the present Convention to each within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status. Article 7 1. The child….shall have…..as far as possible….the right to know and be cared for by his or her parents. Article 8 1. States Parties undertake to respect the right of the child to preserve his identity, including nationality, name and family relations as recognized by law without unlawful interference Article 9 1. States Parties shall ensure that a child shall not be separated from his or her parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the child by the parents, or one where the parents are living separately and a decision must be made as to the child's place of residence. 2. In any proceedings pursuant to paragraph 1 of the present article, all interested parties shall be given an opportunity to participate in the proceedings and make their views known. 3. States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests Article 18 2. For the purpose of guaranteeing and promoting the rights set forth in the present Convention, States Parties shall render appropriate assistance to parents and legal guardians in the performance of their child-rearing responsibilities…’ Article 21 States Parties that recognize and/or permit the system of adoption shall ensure that the best interests of the child shall be the paramount consideration and they shall: (a) Ensure that the adoption of a child is authorized only by competent authorities who determine, in accordance with applicable law and procedures and on the basis of all pertinent and reliable information, that the adoption is permissible in view of the child's status concerning parents, relatives and legal guardians and that, if required, the persons concerned have given their informed consent to the adoption on the basis of such counselling as may be necessary.[69]There is no conflict with law contained in the Conventions and domestic law for as a matter of English and Welsh law the presumption is that children’s interests are best served by being brought up within their own birth or biological family as described by Hedley J in his frequently quoted judgment in Re L (Care: Threshold Criteria) [2007] 1 FLR at 2063 [50] ; “Basically it is the tradition of the UK, recognised in law, that children are best brought up within natural families. Lord Templeman, in Re KD (A Minor Ward) (Termination of Access) [1988] AC 806, [1988] 2 FLR 139. at 812 and 141 respectively, said this:
‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.’
There are those who may regard that last sentence as controversial but it undoubtedly represents the present state of the law in determining the starting point. It follows inexorably from that, that society must be willing to tolerate very diverse standards of parenting and very unequal circumstances flowing from it. It means that some children will experience disadvantage and harm, while others flourish in atmospheres of loving security and emotional stability. These are consequences of our fallible humanity and it is not the provenance of the state to spare children all the consequences of defective parenting. In any event it could not be done.” ‘The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not in danger. Public authorities cannot improve on nature.’[70]The factual matrix of this case leading to the making of a supervision order in respect of the three older children who remained at home with their father is at the lower end of the threshold criteria necessary to permit the court to make a care order enabling the State to remove any child, this child included, from her parents and siblings and to make a placement order to allow permanent placement in a alternative family. The need for a proportionate approach to such decisions has been the subject of considerable jurisprudence since the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911; which itself followed the principle set out in Re C and B [2001] 1 FLR 611 by Hale LJ, as she then was, at [34]:
“Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.”
[71]Applications for adoption orders are governed by ss46 to 51 of the ACA 2002. There has been little by way of substantial legal argument before me as it has been accepted by all parties that the decision I make will primarily be one of welfare governed by the provisions set out in s 1 of the ACA 2002. In particular I have kept in mind s 1(2) and (4) throughout this judgment and the hearing which preceded it. They are as follows: (2) The paramount consideration of the court or adoption agency must be the child’s welfare, throughout his life (4) The court or adoption agency must have regard to the following matters (among others) – a) the child’s ascertainable wishes and feelings regarding the decision (considered in the light of the child’s age and understanding), b) the child’s particular needs, c) the likely effect on the child throughout his life of having ceased to be a member of the original family and become an adopted person, d) the child’s age, sex, background and any of the child’s characteristics which the court or agency considers relevant, e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering, f) the relationship the child has with relatives, an with any other person in relation to whom the court or agency considers the relevant, including i) the likelihood of the relationship continuing and the value of the child of it doing so. ii) the ability and willingness of any of the child’s relatives, or any such person, to provide the child with a secure environment in which the child can develop, and otherwise meet the child’s needs. iii) the wishes and feeling of the child’s relatives, or of any such person, regarding the child.[72]In their written submissions it was agreed as between the Applicants and the father that the court must follow the Supreme Court decision in Re B and that the test in any case where an adoption is sought is that such an order can only be made as a “last resort” and in circumstances where “nothing else will do”. It is a matter of law that pursuant to s 52 of the ACA 2002 the consent of the parents to W’s adoption can only be dispensed with if her welfare requires it. In short I can only make an adoption order if it is justified having given paramount consideration to W’s welfare throughout her life and to the provisions of s 1 of ACA 2002. I would have to be satisfied that all avenues to rehabilitation have been reasonably explored following the case of YC v United Kingdom (Application No 4547/10) [2012] 2 FLR 332, in which the ECtHR held that to identify where a child’s best interests lie two considerations must be kept in mind that it is in a child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit and that it is in a child’s best interests to ensure her development in a safe and secure environment.[73]In Re B (Care Proceedings: Appeal) [2013] UKSC 33; [2013] 2 FLR 1075 (Re B) the Supreme Court gave guidance in respect of the Court’s role when considering a plan for adoption which must equally apply when considering an application for an adoption order. The case of YC v United Kingdom was referred to by Lord Wilson as requiring the “high degree of justification which article 8 demands of a determination that a child should be adopted or placed in care with a view to adoption.” Lord Neuberger said “the most extreme option should only be adoption if others would not be in her best interests”.[74]The Supreme Court had considered domestic and European jurisprudence in relation to adoption and endorsed what was said in YC v The UK, Application no.4547/10regarding the general principles I have referred to above, at paragraphs et seq as follows:133. The Court’s case-law regarding care proceedings and measures taken in respect of children clearly establishes that, in assessing whether an interference was “necessary in a democratic society”, two aspects of the proceedings require consideration. First, the Court must examine whether, in the light of the case as a whole, the reasons adduced to justify the measures were “relevant and sufficient”; second it must be examined whether the decision-making process was fair and afforded due respect to the applicant’s rights under Article 8 of the Convention…134. The Court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount (see Johansen v. Norway, 7 August 1996, § 78, Reports of Judgments and Decisions 1996-III; Kearns v. France, no. 35991/04, § 79, 10 January 2008; and R. and H., cited above, §§ 73 and 81). In identifying the child’s best interests in a particular case, two considerations must be borne in mind: first, it is in the child’s best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child’s best interests to ensure his development in a safe and secure environment (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, §§ 73-74). It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to “rebuild” the family (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73). It is not enough to show that a child could be placed in a more beneficial environment for his upbringing (see K and T., cited above, § 173; and T.S. and D.S., cited above). However, where the maintenance of family ties would harm the child’s health and development, a parent is not entitled under Article 8 to insist that such ties be maintained (see Neulinger and Shuruk, cited above, § 136; and R. and H., cited above, § 73).135. The identification of the child’s best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The Court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in section 1 of the 2002 Act (see paragraph 103 above) broadly reflect the various elements inherent in assessing the necessity under Article 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives.’[75]The result of the Supreme Court and subsequent decisions of the Court of Appeal is that that this court can only make an adoption order if it is necessary to do so and it is not enough that it would be better for this child to be adopted than to live with her original or birth family as Lord Wilson said in Re B: 34. …Yet, while in every such case the trial judge should … consider the proportionality of adoption to the identified risks, he is likely to find that domestic law runs broadly in parallel with the demands of Art 8. Thus domestic law makes clear that: a) it is not enough that it would be better for the child to be adopted than to live with his natural family (Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161, para [7]); and b) a parent’s consent to the making of an adoption order can be dispensed with only if the child’s welfare so requires (s 52(1)(b) of the Adoption and Children Act 2002) The same thread, therefore, runs through both domestic law and European Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word ‘requires’ in s 52(1)(b) ‘was plainly chosen as best conveying ... the essence of the Strasbourg jurisprudence’ (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para [125]).[76]As it was said by Lord Neuberger at paragraphs 77 and later at 103, adoption is the last resort for any child: 77. It seems to me to be inherent in s 1(1) that a care order should be a last resort, because the interests of a child would self-evidently require her relationship with her natural parents to be maintained unless no other course was possible in her interests. That is reinforced by the requirement in s 1(3)(g) that the court must consider all options, which carries with it the clear implication that the most extreme option should only be adopted if others would not be in her interests. As to Art 8, the Strasbourg court decisions cited by Baroness Hale of Richmond in paras [195]–[198] make it clear that such an order can only be made in ‘exceptional circumstances’, and that it could only be justified by ‘overriding requirements pertaining to the child’s welfare’, or, putting the same point in slightly different words, ‘by the overriding necessity of the interests of the child’. I consider that this is the same as the domestic test (as is evidenced by the remarks of Hale LJ (as she then was) in Re C and B (Care[77]In Re B-S (Children) [2013] EWCA Civ 1146, the President considered the impact of the decision in Re B:26. First (Re B paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.27. Second (Re B para 77), as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions". What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other…28. Third (Re B para 105), the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support." In this connection it is worth remembering what Hale LJ had said in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, para 28.[78]At paragraph 34 the President set out the roles of both the local authority and the guardian, I have already made plain that I do not consider that the guardian in this case carried out his duties as he should have done and as set out in case law, or indeed under the provisions of the FPR 2010 rule 16.20 and PD16A: 34. First, there must be proper evidence both from the local authority and from the guardian. The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option…[79]In Re B-Sthe Court of Appeal considered the matters relevant to the second and welfare stage of the test for granting leave to oppose the making of an adoption[80]As has been made clear by the President in Re R (a child) [2014] EWCA Civ1625;Re B and Re B-S have not changed the law. The Court of Appeal applied Re B in B-S, again in Re G (Care Proceedings: Welfare Evaluation) [2013] EWCA Civ 965 in which Lord Justice McFarlane referred to the task before the Court in analyzing the options and said “ In most child care cases a choice would fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, was looked at in isolation and then rejected because of internal deficits that may be identified, with the result that, at the end of the line, the only option left standing is the most draconian and that was, therefore, chosen without any particular consideration of whether there were internal deficits within that option. The linear approach was not apt where the judicial task was to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best met the duty to afford paramount consideration to the child's welfare (see paras [49], [50]). (3) What was required was a balancing exercise in which each option was evaluated to the degree of detail necessary to analyse and weigh its own internal positives and negatives and each option was then compared, side by side, against the competing option or options (see para [54]).[81]In Re R [2014] to which I have referred above Sir James Munby, P sitting in the Court of Appeal held that “The fact that the law in this country permitted adoption in circumstances where it would not be permitted in many European countries was neither here nor there. The ACA 2002 permitted, in the circumstances there specified, what could conveniently be referred to as non-consensual adoption. And so long as that remained the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demanded no less (see para [45]). (ii) It was emphasised, with much force that Re B-S was not intended to change and had not changed the law. Where adoption was in the child's best interests, local authorities must not shy away from seeking, nor courts from making, care orders with a plan for adoption, placement orders and adoption orders. There were occasions when nothing but adoption would do, and it was essential in such cases that a child's welfare should not be compromised by keeping them within their family at all costs (see para [44]). (iii) It was repeated and emphasised that the court's paramount consideration, now as before, was the child's welfare throughout his life. Nothing that was said in Re B-S was intended to erode or otherwise place a gloss upon the statutory requirements of s 1 of the CA 1989 and s 1 of the ACA 2002. On the contrary, the exhortation for courts to undertake a balancing exercise which pitted the pros and cons of each realistic option, with the emphasis on the word ‘realistic', against the others was aimed precisely at discharging the court's statutory duty under s 1. In particular, before making a decision relating to a child's welfare, a court was required to have regard to, amongst other matters, the factors set out in the relevant welfare checklist. The evaluation of options described in Re B-S must be undertaken with those factors in full focus (see paras [54], [55], [59]).”

Analysis: the balancing exercise

[82]In this case I am considering two options only, either W returns home or, if nothing else will do she remains with the As and is adopted by them. I have already said that the care she has received from Mr and Mrs A has been of a high standard and it is accepted that W is settled with them, thriving and a happy and healthy little girl. The father has been fulsome in his praise for the way they have looked after his daughter. Against this I must balance in the light of the jurisprudence I have set out above that by the time the care proceedings were concluded the father and the mother had separated and that the decision for W to remain in state care with a plan for adoption was at best finely balanced.[83]The fact that the orders made in September 2013 were set aside on appeal further underlines the inherent weaknesses of that primary decision which led to W being placed for adoption, for it is highly likely that had the principles set out by the Supreme Court in Re B, applied in B-S and the Court of Appeal cases preceding and subsequent to B-S been followed, with the adequate support that should have been put in place by the local authority, W would have been placed at home with her brothers and sister in their father’s care. The criticism of the local authority’s evidence and case made by the district judge in his judgment, particularly their focus on the need for the father to change of course meant that no support package was put before the court; as there should have been had the court and the local authority paid heed to Re B and the words of Lord Neuberger at [105]; these words and similar references to local authority report in Re B were, as can been seen above, followed by the President in B-S to the decisions of the Court of Appeal which preceded and followed that particular case.[84]There are undoubtedly risks in moving W to be reunited with her original family for it is obvious that she will be distressed and perhaps suffer trauma for a period when she is moved. Dr Willemsen made it clear, if it was not already, that this transition would be fraught and at times distressing for W and for those who care for her; she is, for example likely to be rejecting of her father and her siblings who are, in turn likely (particularly the children) to be hurt, confused and distressed. These difficulties and the possible harm to the child can be ameliorated by the provision and intervention and support of a child psychologist and social worker who can work with W and her family in the manner suggested by Dr Willemsen. They are likely to be short to medium term difficulties which are capable of being overcome by appropriate professional support over the first year and more; should difficulties arise in future I am reassured by the approach of the father and the parenting abilities he has demonstrated while bringing up his children before and after the orders were made in respect of W in September 2013.[85]Against that this distress can be avoided for W if she remains with the Applicants. However there is sufficient reason to believe that there are more likely than not to be considerable difficulties in the future for W coming to terms with the circumstances of her adoption, the knowledge that she alone of her four full siblings has been denied the opportunity of being brought up within her own family and that her adoptive parents were party to that denial. When this is likely to occur it is not possible to say, and while it is possible that she would not feel aggrieved by her situation it is most unlikely that she will not be confused by it. As Mr and Mrs A, through no fault of their own, are not prepared for dealing with a disaffected child or adolescent the likelihood of breakdown as described by Mr Hatter is a real one.[86]The difficulties that W is bound to encounter as an adopted person in circumstances where she should not have been placed for adoption (the court of Appeal having set aside the placement order) will affect her throughout her life. The sense of belonging referred to by Dr Willemsen in his evidence is fundamental to her sense of identity, her sense of herself and her place in the world. These are matter that I am bound to consider as highly relevant to her welfare throughout her life, as described by Sir James Munby, P (above) in B-S.[87]I reject the local authority’s (and the guardian’s) case in respect of their ill-founded assessment of the abilities of the father to recognise when his child needs support or when he is in difficulty which does not concur with the evidence of the two experts, whose evidence I prefer. There is no objective evidence or reason to believe that the father would not support W with the assistance of professionals. I was impressed by his realistic expectations of difficulties ahead for W from her point of view and, having observed him in court and heard his oral evidence I believe that he has the commitment and emotional intelligence to support his daughter over what will be a very difficult and distressing transition in the short term. These difficulties though real are not sufficient to deny this child her place within her own family of origin and the law which I have set out above requires that she should be reunited with her family. The facts of this case do not amount to the last resort or a situation where “nothing else will do”. The circumstances of this case set out in this judgment do not dislodge the presumption that a child should be brought up within her family.[88]The fact that W has been with the As for some time (16 months) and is settled with them may militate against a move in the short term but it cannot form the reason for W to remain in an adoptive placement when balanced against her welfare for the rest of her life. I keep in mind the word of Lord Neuberger at [103] of Re B referred to above. The effect on Mr and Mrs A of W being moved away from them to be reunited with her family of origin will be distressing and difficult to bear; hence their inability to contemplate playing an active role in any transition but their welfare is not my paramount concern; that is with W’s life-long welfare. When balancing the effects of reunification against those of remaining in an adoptive placement the principles as set out in Re B and the Court of Appeal decisions to which I have already referred are binding on me and even if there were not a presumption that children are best brought up within their natural families I would still conclude that it is in the interests of W’s welfare throughout her life that she should be reunited with her father and siblings, and her mother (W will also be able to have a relationship with her mother as she can take part in contact with her siblings in due course) to live within her family as she grows up and to take her place among them for the rest of her life. If she remains where she is all those ties with her family of origin will be lost and the advantages of being brought up within her family, seeing her mother will be denied her.[89]The law as it has developed since the ACA 2002 came into force (and indeed prior to that) requires the authorities to put in place advice and assistance to allow a child to remain or be reunited with their family. I have quoted from cases above where this is set out clearly; it has been repeated time and again. I remain concerned however about the commitment, attitude and approach of the local authority in this case. The manner in which Ms Alsop dealt with the father’s employment was cavalier and undermining of the father at best. It is illustrative of the seemingly belligerent behaviour and oppositional stance adopted by this local authority toward the father and by extension his children. I am yet to be convinced that they would approach any reunification openly and offer the family the positive support that it needs and is entitled to; therefore I am pleased that the local authority have indicated that they will fund an independent social worker to oversee the transition and its aftermath during which time it is to hoped that positive professional and mutually trusting relationships can be built.[90]As can be seen from the combined import of the case law and jurisprudence, and from the provisions of statute, the local authority has an obligation, in law, to bring about reunification and to provide the help, support, advice and assistance necessary.

Sibling relationships and the children’s wishes and feelings

[91]It is most regrettable that the three older children were unrepresented during these proceedings as their views were not put before the court. While they would not be parties to the proceedings under the provisions of the FPR 2010 or the relevant legislation their Art 8 ECHR rights are engaged and the court should have had regard to their wishes and feelings under s 1 (4) (f) (iii) of the ACA2002.[92]As was said by the Court of Appeal in T (Children) [2014] EWCA Civ 1369, albeit obiter,it is important for children to know that any applications which may lead to them or their siblings remaining with alternative carers or returning to the care of their family are properly argued on their behalf. There can be little doubt that the eldest child in particular wants W to return home and would have had a view on contact should the court have come to consider contact for W with her family if she remained in the adoptive placement. Their wishes in respect of this or any other matter were just not put to this court. In the case of Mabon v Mabon [2005] EWCA Civ 634 the Court of Appeal considered some ten years ago the need for children and young people to know their wishes are transmitted to the court and, in the words of Lord Justice Wall in Mabon, “to emerge from the proceedings (whatever the result) with the knowledge that their position had been independently represented to the judge and their perspective fully advanced to the judge.”[93]At a time when there is increasing awareness of the dissatisfaction of some young people about lack of access to the courts considering matters directly concerning them these children should have had their wishes and feeling put before the court, at the very least; and as her siblings they are relatives of W the court should have had regard to those wishes and feelings as it is obliged to do so by statute (s1 ACA 2002). In the absence of direct representations from X, Y and Z put to me on their behalf I have assumed that they would want their sister and youngest sibling to live at home with them and their father.

Order

Future Harm), para [34] quoted by Baroness Hale of Richmond in para [198] above), but it is unnecessary to explore that point further…’ 103. … In the Birmingham City Council v S, R and A case, which Sloan suggests is more in line with the policy of the United Nations Convention on the Rights of the Child 1989, Sumner J described adoption as ‘a last resort for any child’ to be invoked only ‘when neither of the parents nor the wider family and friends can reasonably be considered as potential carers for the child’, and he went on to recognise a child’s ‘right to be brought up by her own family’ 104. We were not addressed on this article or on those two cases. However, they all give added weight to the importance of emphasising the principle that adoption of a child against her parents’ wishes should only be contemplated as a last resort – when all else fails. Although the child’s interests in an adoption case are ‘paramount’ (in the UK legislation and under Art 21 of the United Nations Convention on the Rights of the Child 1989), a court must never lose sight of the fact that those interests include being brought up by her natural family, ideally her natural parents, or at least one of them. 105. Hodgkin and Newell, op cit, suggest that, under the United Nations Convention on the Rights of the Child 1989, an ‘adoption can only occur if parents are unwilling or are deemed by judicial process to be unable to discharge’ their responsibilities towards the child. The assessment of that ability to discharge their responsibilities must, of course, take into account the assistance and support which the authorities would offer. That approach is the same as that suggested by Hedley J in the passage quoted in para [67] above, and I agree with it. It means that, before making an adoption order in such a case, the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support.’ "Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child" order: vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be; viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that "the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems." That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious upbringing)[2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.”

Cited in 2 later judgments