W (A Child : No 4) [2017] EWHC 1760 (Fam)

[2017] EWHC 1760 (Fam)Case numbers omitted
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10 July 2017
Published: 12 July 2017
Before
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
In the matter of W (A Child) (No 4)
Hearing Hearing date: 6 July 2017
Ms Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells) for W’s father
Mr Frank Feehan QC and Ms Madeleine Reardon (instructed by Osbornes) for W’s adoptive parents
Mr Andrew Bagchi QC and Mr Martin Downs (instructed by Brighton and Hove City Council Legal Services) for the local authority (Brighton and Hove City Council)
Judgment Approved
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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.
Sir James Munby, President of the Family Division :
[1]I circulated my judgment in this matter on 6 March 2017 and published it on 12 April 2017: Re W (A Child) [2017] EWHC 829 (Fam). For the sake of completeness I mention the two further judgments I handed down on 17 April 2017 and 5 May 2017 respectively: Re W (A Child) (No 2) [2017] EWHC 917 (Fam) and Re W (A Child) (No 3) [2017] EWHC 1032 (Fam). For present purposes I need not refer to them further. The same day, 12 April 2017, I made an adoption order. It was sealed on 18 April 2017.[2]I take my judgment as read, referring here only to those passages most directly relevant to the matters now before me. I identified the issues as follows (para 57):
“There remain, therefore, two issues for me to determine: i) Should I grant Mr and Mrs A’s application to adopt W, their application including an application pursuant to sections 47(2)(c) and 52(1)(b) of the Adoption and Children Act 2002 to dispense with the consent of her father and mother, or should W be returned to the care of her father? ii) If the former, should I make any order in relation to post-adoption contact?”
[3]I set out (paras 95-99) the differing submissions I had had about Mr and Mrs A. I set out (para 100) my conclusions as follows “This is an issue about which I have thought long and carefully, but in relation to which, at the end of the day, I have no hesitation in coming to clear conclusions. Mr and Mrs A’s commitment to W, and to her well-being, throughout her life, is absolute. Their journey through litigation which has subjected them to appalling strain (just as it has the father and the mother) has been reflected in a gradual development and positive movement in relation both to their understanding of the father and of their recognition of the need for and willingness to facilitate contact, both indirect and direct. I accept Mr Diver’s assessment, which agrees with my own, of Mr and Mrs A being willing now, whatever may have been their stance in the past, to work towards direct contact, and moreover, direct contact sooner rather than later…”[4]There followed a very long section in which I quoted extensively from the expert evidence. Included were extracts from the experts’ evidence in relation to post-adoption contact: see for example Dr Blincow (paras 113, 118-119), Mr Hatter (para 132), Dr Willemsen (para 142), Dr Helps (paras 160, 162, 164, 166) and Mr Diver, the children’s guardian (para 176).[5]My discussion was lengthy (paras 224-253). I said (para 233) that:
“The starting point has to be W’s current reality. As far as she is concerned, Mr and Mrs A are her daddy and mummy. They are her parents, emotionally, psychologically and socially. They and their son are, and, so far as she can remember, always have been, her family. It may be that she has the implicit memory referred to by Dr Willemsen, but she has no actual memory of her birth family or of any other family. She may be familiar with the words “tummy mummy”, but she has no real understanding of what they mean or of their significance. Given her age and stage of development there is little that could be done to prepare her for a move to her father’s care, nor would it be possible to explain to her, in a way which would have any real meaning for her, what is happening to her, whether before, during or after the move.”
[6]I posed (para 245) the question, “How then is the overall balance to be struck?” The remaining part of the judgment must be read in full, and as a whole. For present purposes the key passages are these:
“249 I am, at the end of the day, driven to the conclusion, which in the event I arrive at unhesitatingly, that W must, for her own good, for her own happiness and for her welfare, now, in the years to come, into and through adulthood, indeed for the whole of what I appreciate may be a very long life – she may well live into the 22nd century – remain with what for her is her family, that is, with Mr and Mrs A and their son … 250 Drawing the statutory threads together, the sad reality is that W does not now have, did not at the time of the hearing before me have, any meaningful relationship with her birth family; the most important, indeed from her perspective the dominating, relationship for W is and has for some time been with Mr and Mrs A and their son. The value to W of that relationship continuing is enormous. And while I recognise – how could I not? – the strength of the father’s wishes and feelings, and his absolute commitment to W and unconditional willingness to provide for her every need, one has to question his ability to do so; not because of any failings or limitations on his part, because for all practical purposes there are none, but because what would be demanded of him would probably be almost too much for any parent in his situation. 251 … the stark reality here, in my evaluation of what the future in all likelihood holds, is that the future for W if she returns to her father is not one of merely short-term or transient problems; far from it. The risks of moving W from Mr and Mrs A are simply too great, and potentially so unmanageable, as to demand that they not be run. 252 Given that analysis, given my conclusion that W’s welfare demands that she remains with Mr and Mrs A, I am also driven to the conclusions (a) that W’s welfare requires that she be adopted – for her long-term welfare cannot otherwise be secured – and, a separate matter, (b) that her welfare “requires” (in the sense explained in the authorities) that her parents’ consent to her adoption be dispensed with. Adoption is demanded by the overriding necessity of W’s interests and welfare. Nothing else will do.”
[7]I then addressed the issue of contact (para 253):
“There was a clear consensus among all the experts that, if W is to remain with Mr and Mrs A, it is in her best interests that there should be increased contact leading to direct contact with her birth family as soon as is practical. There was general agreement that W’s long-term psychological wellbeing – her ability to understand her status as an adopted person and to put her particular ‘narrative’ in context – would be best safeguarded if contact with her birth family took place sooner rather than later. I agree with that. I also agree that there should be no order for contact, something which no expert recommended. If Mr and Mrs A are to be W’s adoptive parents, and this is the hypothesis on which the question arises, it must be for them to decide when, how and in what circumstances contact should begin and develop. And, quite apart from that, it is quite impossible at this point to spell out any of these matters with the kind of precision which would be required in an order. All that said, I agree with Dr Blincow’s view, expressed in answer to questions from Mr Bennett, that Mr and Mrs A need to “commit themselves” to making such contact work and that “it is very, very important … that [they] adopt that course of action wholeheartedly.””
[8]I should add that, during the proceedings, Mr and Mrs A had made two joint statements relevant to what is now in issue, one dated 16 June 2016 and the other dated 23 August 2016. In the first, under the heading “Our family as a British based family,” they said this:
“[The father] has expressed fears that, as a family with American and Italian heritages and extended families in both those countries, we may move permanently from England to either Italy or the USA once an adoption order is made in our favour. It is impossible for any family to know exactly what the future will hold but as a family we have put our roots down in this country and our son has always been educated here and lived here since he was one year old. Mrs A is about to submit an application for British citizenship and her “Life in the UK” test is scheduled for [date]. Apart from this being an acknowledgement of our settled residence here, it will mean that Mrs A has the same nationality and connection with this country as W.”
In the second, they said this:
“Our position in relation to our future living arrangements is as follows. It is correct that we have ties to other countries (indeed this was, we believe, one of the main reasons for being matched with W in that her birth family had asked the local authority to look for adopters who could reflect her part-Italian heritage). However we have built our lives together in the UK and established careers and friendships which now go back many years. We keep in frequent contact with our family members abroad and they visit us, and we them, on a regular basis, but the UK is our home. Our family is rooted and settled in our local area. … Mr Hatter suggested during the experts’ meeting (although not in either of his reports) that he was concerned by our failure to offer a ‘guarantee’ that we would not move abroad during W’s minority. We have never been asked to offer this, by Mr Hatter or by anyone else, so it is not right that we have refused or failed to do so. It is our view, however, that such a guarantee would be meaningless. We have no plans or intentions to move abroad and something significant and unanticipated would have to occur before we would contemplate doing so; in those sorts of circumstances, if there were some real imperative compelling us to move, it is hard to see what weight we could give to a guarantee offered before the unforeseen event took place.”
[9]Mrs A, followed by Mr A, gave evidence on 13 September 2016. So far as is relevant for present purposes, it is the evidence that Mrs A gave in answer to questions from the father’s counsel, Ms Bazley (Transcript, pp 23-26), which is significant:
“Q … needing to move abroad was something you envisage might happen in the future? A I think I said it was a possibility, so that is why we did not have a special guardianship order, we can move freely as a family without having to ask permission. Q That must remain a possibility? A No plans. … Q … you also said that you may have to move a family to the States? A I did not say we would, I said it is a possibility, because we are both foreigners you never know if circumstances arise, my husband is Italian but it was also an issue if some family member was sick and we might have to spend extended time, we wanted to be able, that is a good thing for us to be able to have that flexibility.”

Q That must remain a possibility?

[10]The father’s application to the Court of Appeal for permission to appeal against my order was refused by McFarlane LJ on 26 May 2017 – this was the Friday before the Bank Holiday weekend. So far as concerned the litigation, that marked the end of the road for him. I was notified of the Court of Appeal’s order that afternoon.[11]Later the same afternoon, at 16.01, I received an email from Ms Bazley, copied to other counsel, forwarding an email that had been sent by the local authority, at 15.28, enclosing a MASH referral received by the local authority earlier in the day. The MASH referral, dated 15 May 2017, referred to what had happened in clinic on 12 May 2017 when W’s hearing had been tested:
“W was seen in … on 12th May with prospective adoptive parents … They informed a colleague that they plan to move to the US but that we should not mention this in any letters. They were advised that the hearing aid that we planned to fit was government property and would have to be returned on leaving the UK.”
As Ms Bazley points out, the context of what is said to have happened on 12 May 2017 was that an order I had made on 10 May 2017 recorded Mr and Mrs A’s agreement to:
“provide to the parents and to the local authority a copy of any letter(s) received from any health professional in relation to W’s hearing problems and the treatment to be undertaken.”
In her email, Ms Bazley said this:
“… If this is correct, this is wholly contrary to the assurances given to the court that Mr and Mrs A would remain based in England … and committed to direct contact … If in fact, Mr and Mrs A were intending to leave the jurisdiction permanently and concealed this from the court, we would argue that this goes to the heart of your decision … We ask that you grant a short further stay of your adoption order and permit the matter to be restored urgently for further directions …”
[12]When I received this email I was on a train returning home for the weekend, having been sitting at Chester. I replied to Ms Bazley (16.15) inquiring whether the adoption order had been sealed. The answers which I got from Ms Bazley and others were not absolutely clear on the point, so I contacted the court office by email seeking clarification. Eventually, after the court files had been located, I was emailed (17.23) a copy of the adoption order showing (rather faintly) that it had been sealed on 18 April 2017; the date was confirmed in a further email (17.36) from the court office. Having received that information, and by now on the platform at Reading waiting for my connection, I emailed Ms Bazley and the others (17.42):
“I have just received confirmation from the court office that the adoption order was sealed on 18 April. I am therefore functus officio and can do nothing absent an application to set aside the AO.”
Ms Bazley’s response (17.45) was that:
“We will take instructions in light of any information to come from Mr and Mrs A on Tuesday.”
[13]There was then correspondence between the parties. Mr and Mrs A’s solicitors wrote to all the parties on 31 May 2017. The father’s solicitors responded with an email on 1 June 2017 seeking disclosure of eight matters. Mr and Mrs A’s solicitors responded by letter dated 7 June 2017 with certain enclosures. The local authority wrote on 12 June 2017 with details of a conversation on 9 June 2017 between Mrs A and the social worker, Ms Reains.[14]This material revealed the following key information upon which Ms Bazley particularly focused: i) In November 2016, during the course of a regular review with his employer, which has offices in the USA, the company’s HR department raised with Mr A the possibility of a transfer to the USA. ii) In February 2017, Mr A was offered and accepted a US-based role. iii) On 1 May 2017, Mr A started his new job, although, as it was put in the letter from his solicitors dated 31 May 2017, “he is continuing with aspects of his UK based job in parallel with the new role. At present the family remains based in the UK and Mr A is commuting between the two jurisdictions.” iv) As reported by Ms Reains, Mrs A’s stated position on 9 June 2017 was that “… they remained dedicated to contact … they had made no plans as yet to undertake the move and have not made any plans for W or the A’s son to start school in the US … if [they] were to move to the US at some time in the autumn, it would be most practical for them to return to the UK in the Easter period next year …”[15]On 21 June 2017 the father lodged two applications with the court: one, an application under the inherent jurisdiction seeking the setting aside of the adoption order and an order to prevent the removal of W from the jurisdiction; the other an application seeking a post-adoption contact order under section 51A of the Adoption and Children Act 2002. The applications were put before me by the court office for directions. The same day, 21 June 2017, I made the following directions:
“Issue both applications immediately List both applications before PFD on Friday 23 June 2017 at 10.30 for directions and (if appropriate) urgent interim relief (elh 1 hour).”
The applications were formally issued the following day, 22 June 2017.[16]In accordance with my directions, the matter came before me on 23 June 2017. The father was represented by Mr Chris Barnes, Mr and Mrs A by Mr Frank Feehan QC, and the local authority by Mr Andrew Bagchi QC. I also had a position statement dated 23 June 2107 on behalf of X prepared by Ms Deirdre Fottrell QC. The mother was present in person.[17]Mr Feehan submitted that I should summarily dismiss both applications then and there. I declined to do so. But I also declined to make W a ward of court as Mr Barnes had sought. I confined myself to making an order that the father was, by 30 June 2017, to file and serve(i) a fully pleaded schedule of allegations relied upon, and(ii) a skeleton argument in support of his applications setting out the legal and factual basis for those applications. I directed that the proceedings were to be listed before me “for case management or summary determination of the applications” on 6 July 2017. The father’s schedule and skeleton argument were in fact served on 3 July 2017.[18]In accordance with those directions, the matter came before me on 6 July 2017. The hearing, listed to accommodate the fact that I was sitting earlier in the day in the Court of Appeal, started at 4.30 and lasted for almost three hours. The father was represented by Ms Bazley and Mr Barnes, Mr and Mrs A by Mr Feehan and Ms Madeleine Reardon, and the local authority by Mr Bagchi and Mr Martin Downs. At the end of the hearing I indicated that I needed time to think overnight about the various submissions I had heard and that I would notify the parties of my decision the following day, with reasons to follow. On 7 July 2017 I sent the parties the following email:
“I have decided to DISMISS both the application under the inherent jurisdiction seeking the setting aside of the adoption order and the application seeking a post-adoption contact order under section [51A] of the Adoption and Children Act 2002. My reasons will follow on Monday. Can you please agree, and email me, a form of order to give effect to my decision. The order will be dated 10 July.”
I now (10 July 2017) give my reasons.[19]There was no dispute between the parties as to the law. All recognised the very high bar against any successful challenge to an adoption order which has been regularly made. All were content to proceed on the basis of the summaries in In re C (A Child) (Adoption: Placement Order) Practice Note [2013] EWCA Civ 431, [2013] 1 WLR 3720, [2013] 2 FLR 1393, para 44, and In re O (A Child) (Human Fertilisation and Embryology: Adoption revocation) [2016] EWHC 2273 (Fam), [2016] 4 WLR 148, paras 26-28. I do not need to set these passages out, because Ms Bazley’s sheet anchor was the judgment of Sir Thomas Bingham MR in In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, page 252:
“An adoption order is not immune from any challenge … The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud (emphasis added).”
[20]Both the father’s ‘Schedule of Allegations’ dated 30 June 2017 and Ms Bazley’s skeleton argument dated 2 July 2017 are quite explicit: Mr and Mrs A’s non-disclosure was “deliberate”, done with “the intention of enhancing the prospect of the court granting the adoption order they sought and refusing to make a contact order, which they opposed”, “dishonest” and “fraudulent.” The ‘Schedule’ contains two core allegations: i) One was that Mr and Mrs A had “formed a settled intention” prior to circulation of the judgment on 6 March 2017 “to remove W from the jurisdiction permanently”. ii) The other was that Mr and Mrs A “knowingly withheld” their plans from the court and the parties prior to 6 March 2017 “to ensure that their plan to relocate would not prejudice the position they had advanced.”[21]Ms Bazley’s case focuses on two matters: i) The failure to disclose in February 2017 (at a time before I had handed down my judgment) Mr A’s acceptance of the job offer in the USA. ii) What was said to the audiologist on 12 May 2107.[22]These are exceedingly serious allegations. It is only fair that I set out Mr and Mrs A’s explanation as given in the letter from their solicitors of 31 May 2017:
“My clients are conscious that a potential move to the US has been raised within these proceedings before (at a time when there was no such possibility) as a complicating factor. They accept that they asked the audiologist not to mention their conversation because there is no certainty around this issue and, frankly, they wanted to avoid just this scenario. This was certainly a mistake and they also accept that. Apologies are offered.”
[23]Ms Bazley submitted that this was not a situation in which I should summarily determine the case against the father. She referred to the important observations of Butler-Sloss LJ, as she them was, in Re B (Minors) (Contact) [1994] 2 FLR 1, 5-6, endorsed by Wilson LJ, as he then was, in Re C (Contact: Conduct of Hearings) [2006] EWCA Civ 144, [2006] 2 FLR 289, paras 30-33, and to what I had said in Re C (Family Proceedings: Case Management) [2012] EWCA Civ 1489, [2013] 1 FLR 1089, paras 14-15.[24]This being, as she would have it, a case of fraud, Ms Bazley also relied upon what Baroness Hale of Richmond had said in Sharland v Sharland [2015] UKSC 60, [2016] AC 871, [2015] 2 FLR 1367, paras 32-33:
“32 … a party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality. Furthermore, the court is in no position to protect the victim from the deception, or to conduct its statutory duties properly, because the court too has been deceived … 33 The only exception is where the court is satisfied that, at the time when it made the consent order, the fraud would not have influenced a reasonable person to agree to it, nor, had it known then what it knows now, would the court have made a significantly different order, whether or not the parties had agreed to it. But in my view, the burden of satisfying the court of that must lie with the perpetrator of the fraud. It was wrong in this case to place upon the victim the burden of showing that it would have made a difference.”
[25]It will be appreciated that, in part, the father’s complaint is based upon allegations of non-disclosure during the period between the end of the hearing and the handing down of judgment. Ms Bazley relied upon Practice Direction: Case Management [1995] 1 FLR 456, para 4, issued by Sir Stephen Brown P on 31 January 1995:
“It is a duty owed to the court both by the parties and by their legal representatives to give full and frank disclosure … in all matters in respect of children.”
Whether, formally, that Practice Direction is still force may be a nice question (it no longer appears in the Family Court Practice), but there can be no doubt as to the continuing vitality of this fundamentally important principle. Nor can there be any doubt that this duty of disclosure continues, in a family case just as in a civil case, until the handing down of any reserved judgment: see CPR 31.11(1) as explained in Vernon v Bosley (No 2) [1998] 1 FLR 304, 318, 321, 343, 345.[26]It is necessary to return at this point to what I said, and, equally important, did not say, in my judgment. There were, in my judgment, three key elements: i) I had accepted the evidence of Mr and Mrs A. It is important to recognise that they had not, either in their written or in their oral evidence, ruled out the possibility of a future move to the USA. And I had not (judgment, para 100) made any finding to the effect that they were going to remain in this country. ii) My decision in relation to the fundamental question of adoption, yes or no, was not expressed as being contingent on my decision in relation to contact. Of course, as Ms Bazley observes, the possibility of future contact was something I had to have regard to – see sections 1(4)(f) and 51A of the 2002 Act – as I did (para 249). But the fundamental basis of my decision in relation to adoption was as set out in paras 250 and 252 and there is nothing there to suggest that my decision was contingent – because it was not – upon an assumption that there would be contact. iii) There is nothing in the judgment to show that the direct contact which I envisaged (paras 100, 253) was necessarily to take place in this country, let alone that it was contingent on Mr and Mrs A continuing to live in this country. As Mr Bagchi put it, and I agree, my decision was not based on issues of geography.[27]Returning to Ms Bazley’s case there are, in my judgment, two fundamental difficulties standing in the way of the assertion that Mr and Mrs A have acted fraudulently or dishonestly. i) In relation to the non-disclosure of Mr A’s acceptance of the job offer, this is not something fundamentally inconsistent with anything they had said in their evidence, or, as it turned out, with any assumption articulated in my judgment. ii) Their deliberate decision to conceal what had been said to the audiologist on 12 May 2017 was after I had given my judgment and, more significantly, a reaction not so much to the judgment as to the terms of the order made two days before, on 10 May 2017.[28]In my judgment, the father has not established a prima facie case of fraud or dishonesty, and in these circumstances it would be quite wrong to require Mr and Mrs A to give further disclosure or to answer further questions put by the father’s representatives, whether orally or in writing. Even in the Family Division, the normal principles apply. A claimant who cannot establish a prima facie case of fraud or dishonesty is not to be permitted to interrogate the defendant, embarking upon a fishing expedition in the hope that enough my turn up to make the charge ‘stick’. This being so, the principle in Sharland v Sharland has no application, for, as Baroness Hale’s formulation of the principle makes clear, it bites only if fraud has been established.[29]Quite apart from that there is, as Mr Feehan has correctly submitted, no basis upon which it can plausibly be suggested that any fraud or dishonesty there might have been has actually impacted upon my decision that W must be adopted. I repeat what I have already said in paragraph 26 above. The point is fundamental. It is not enough to show, even assuming one can, that there has been fraud, dishonesty or perjury. What has to be shown, to adopt Sir Thomas Bingham’s words in In re B, is that the adoption order was “obtained by” the fraud. And that, as Mr Feehan submits, the father cannot possibly show given what I said in the judgment. As he puts it, and I agree, the adoption was not dependent on Mr and Mrs A following through on contact but rather upon the severe detriment to W were she to be taken away from the care of her adoptive family. Mr Bagchi puts the same point in other words when he submits, and again I agree, that what is complained of even if taken at its highest cannot amount to a valid ground for setting aside the adoption order.[30]There being, therefore, no arguable basis of challenge to the adoption order, and no justification for keeping the father’s application alive in the hope that additional material may turn up, it is, in my judgment, a plain case for disposing, as I do, of the matter summarily. I shall therefore dismiss the application to set aside the adoption order.[31]The fate of the other application, for a contact order, does not necessarily fall merely because I have dismissed the application to set aside the adoption order. But in the particular circumstances as I have described them, and given in particular what I have said in paragraph 26-27 above, I see no reason to revisit my decision, as explained in the judgment (para 253), that this is not a case for a contact order. I shall therefore also dismiss the contact application.