X and X & Anor v Lincolnshire County Council [2023] EWHC 3605 (Fam)

Case No LN94/2022

[2023] EWHC 3605 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Monday, 23 January 2023

Strand

London WC2A 2LL

Before

MRS JUSTICE LIEVEN

Between

MR AND MRS XApplicant

THE CHILD (A MINOR)Applicant

(Through his Children's Guardians)Applicant

LINCOLNSHIRE COUNTY COUNCILRespondent

MR PRIESTLEY appeared for First Applicant

MR S COE appeared for Second Applicant, through his Children's Guardian, Ms Morten

MR B DAVIES appeared for Respondent

JUDGMENT

(Approved)

Digital Transcription by Epiq Europe Ltd,

Lower Ground, 46 Chancery Lane, London WC2A 1JE

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(Official Shorthand Writers to the Court)

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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.

[1]MRS JUSTICE LIEVEN: The court is concerned today with an application by Mr and Mrs X for an adoption order in respect of NG, a boy born on 28 June 2021 and therefore, now aged 18 months. Mr and Mrs X were represented before me today by Mr Priestley. The local authority by Mr Davies. The child’s guardian, Ms Morten, by Mr Coe. NG is a child in the care of the local authority, under a care and placement order made by HHJ Hirst on 29 April 2022. NG’s parents both agreed to those orders.

[2]There is a history of parental mental health issues which was referred to by HHJ Hurst in his judgment of 22 April 2022, the father having been diagnosed as suffering from paranoid schizophrenia. NG has presented with developmental delay, but is doing very well with Mr and Mrs X and the delay appears to be improving. He still does have delay in respect of speech and language and some physical health needs, particularly around mobility. There is also some evidence of NG having suffered from attachment difficulties, although he has bonded very well when placed with Mr and Mrs X. I note that he was very distressed at the time he was initially placed with them. He plainly and unsurprisingly, is a child who finds transition difficult.

[3]NG has been placed with Mr and Mrs X since 15 July 2022. Before NG was placed with Mr and Mrs X, conversations were had with the local authority that NG’s mother was expecting another child and if that child, IG, could not remain with his birth family, the care plan would be for the two siblings to be placed for adoption together.

[4]At that stage, Mr and Mrs X were in agreement with those plans for IG to be placed with them, albeit as I understand it, there was no formal agreement to that effect. However, once NG was placed with Mr and Mrs X, and they came to understand the challenges of caring for him, they (for perfectly understandable reasons which no party seeks to criticise) changed their minds and felt unable to offer a home to IG.

[5]On 17 October 2022, the local authority wrote to Mr and Mrs X confirming that its care plan was for NG to be placed for adoption with IG, and therefore saying that they wish to remove NG from Mr and Mrs X’s care. A seven-day period was given before any formal notice under the Adoption and Children Act 2002 would be served. An adoption application was lodged a few days later. There was then significant delay in the application being issued by the court, which was in part due to my failings to do the order quickly enough.

[6]I granted the local authority’s application for a care and placement order in respect of IG on 15 November 2022. Directions for issue on the adoption application in his case had not been given at that time. I heard a case management hearing in NG’s case on 13 December 2022 and gave directions for a final hearing today. All parties agreed at that stage that time was of the essence. At that hearing of 13 December, there was consideration of the issue of an open adoption, in other words one where the boys would have contact with each other. I indicated that there would need to be something more certain and clearer before I could consider taking NG away from Mr and Mrs X. Therefore, the focus after that hearing has been on the adoption agency providing more concrete options for prospective adopters, following a real and genuine interest in adopting both boys.

[7]On 6 January 2023, the local authority served a statement by Ms Fassler (the head of service for the area) which sets out the efforts made by the local authority to identify prospective adopters. A roundtable meeting was held on 9 January 2023 in anticipation of that hearing. By that stage, two searches for prospective adopters had been carried out. At that meeting, both the guardian and the Independent Reviewing Officer (IRO) continued to oppose Mr and Mrs X having an adoption order and said that further searches should be carried out.

[8]Although it is relatively straightforward for the local authority to get details of approved prospective adopters in its immediate area (that is the surrounding local authorities in the East Midlands), it is more difficult to do so nationally. The national database is operated by Link Maker. On 20 January, a statement was lodged by the local authority made by two social workers, Ms Johnson and Ms Clark, who have been engaging with Link Maker, in order to establish the national picture. They are the Adoption Team Manager and the Adoption Team Practice Supervisor.

[9]In that statement, they have explained that Link Maker is an adopter led system, where adopters are fully involved in the family finding. They have worked – I am very grateful for all the efforts that have been made by them – with Link Maker to set out a full position before the court. In their statements, they explain that they carried out an extended search on Link Maker to look at potential adopters who have stated they would be open to these children’s need. The search criteria were two boys, under 18 months old of other white ethnicity.

[10]Having thrown up from those search criteria various possibilities, they then added in the additional fact that NG suffers from developmental delay, there is a history of parental mental health issues, and of attachment issues. Their statement came up with 8 potential prospective adopters and each family is examined in a little detail in the statement. The upshot is that (for reasons that I do not need to go through) each of those families has been discounted for reasons that appear to me to be well-based. I note that even if theoretically there had been a match, there is then of course a long step before there is a practical match. Even on the relatively theoretical level, it is entirely clear that none of those 8 families would match these two boys’ needs.

[11]In the light of that information, which as I have said was only served on Friday through no fault of the local authority’s, the guardian this morning made the decision that she would not oppose an order in favour of Mr and Mrs X. The IRO (whose involvement in this has been somewhat disjointed) in an email to the local authority this morning, made clear that she continued to oppose Mr and Mrs X’s application. She was not represented before me, but was clear in her opposition.

[12]In the light of the lifelong consequences of the order I am going to make, I felt it was appropriate to give a judgment. The statutory position that I need to consider is that set out in section 1 of the Adoption and Children Act 2002. In making or declining an order, I must have regard to section 1(4) of that Act that says:

“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, I any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering, (f) the relationship which the child has with relatives, (with any person who is a prospective adopter with whom the child is placed) and with any other person in relation to whom the court or agency considers the relationship to be relevant, including (i) the likelihood of any such relationship continuing and the value to the child of its doing so,(ii) the ability and willingness of any of the child’s relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs, (iii) the wishes and feelings of any of the child’s relatives, or of any such person, regarding the child.”

[13]The legal principles in a case such as this were helpfully set out by Cobb J in Re RA (Baby Relinquished for Adoption)

[2016] EWFC 47

at paragraph 43. The particular issue in this case is the effect of extinguishing, or seriously impeding a sibling relationship by an order that contemplates the adoption of two siblings separately. I entirely accept that such an order has a very significant impact on a child’s family life and would usually be described as a very draconian step.

[14]There are a series of cases that Mr Davies refers to in his position statement. The most relevant of which are C v C(Custody of Child)

[1988] 2 FLR 291

, where it was held that young brothers and sisters should (wherever possible) be brought up in the same household, so they can provide an emotional support to each other in the breakup of the family unit. However, it is clear from other cases that separation of siblings may be justified.

[15]I also note the important academic research by the Nuffield Foundation in, “Siblings, contact and the law: an overlooked relationship?” produced in 2018.

[16]Conclusions. I have no doubt that the sibling relationship is one that is an extremely important part of family law. For many siblings, it will be the longest family relationship that they have. I am conscious of the degree to which siblings can support each other, particularly perhaps when they have had challenging early experiences. I also fully accept the point that the guardian makes in one of her position statements, which is that contact between siblings is not the same at all as being brought up in the same household as the sibling. The court will always be reluctant to order siblings to be adopted separately, unless there is a very good reason to do so.

[17]However, this is a case where it is important for the court to be careful that the theoretical, and potentially illusory benefits that can be set out, do not end up harming the best interests of the child in question. The particular factors I focus on in making my decision, are firstly, that Mr and Mrs X have been exemplary carers and NG has thrived with them.

[18]Secondly, the evidence of the three placement searches that been undertaken, show beyond any doubt that there is no current option of the children being adopted together. Therefore, it will be extremely difficult and possibly impossible to achieve that end in any event. It is of course not impossible that a family might not come forward to adopt both children, but at this stage that is wholly speculative and without any evidential foundation.

[19]Thirdly, the evidence is that NG has strongly bonded now with Mr and Mrs X. He is already in his second (if not his third) placement and as I have already said, he suffers from attachment difficulties. If he were removed now and placed in foster care, then there would inevitably be two more moves for him, assuming that he could ultimately be adopted. I accept that this undoubted short- or medium-term harm has to be balanced against the lifelong benefits for growing up with a sibling. Equally, such short- and medium-term certain harm has to be balanced against theoretical long-term benefits.

[20]Fourthly, I take into account the fact that at least NG has knowledge of his sibling and a relationship can be preserved through contact over the years. I accept that is not a substitute, but it is still a very important part of family relationships.

[21]Fifthly, I do consider that a case such as this where the siblings have not grown up together so far, and have little consciousness of the relationship, is different from where one is splitting siblings who already have a relationship and are highly conscious of it. That does not mean that the sibling relationship here is not important, but it is different from many of the cases this court faces, where siblings have already got a strong bond.

[22]Taken all those factors into account, I am confident that NG’s best interests are served by making the order in favour of Mr and Mrs X and allowing them to adopt NG.

[23]I turn then briefly to the issue of contact, there being two issues before me. Firstly, whether or not I should make an order for contact within the adoption order and secondly, the frequency. By section 46(6) of the Adoption and Children Act 2002:

“Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose, the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.”

[24]Mr and Mrs X are entirely supportive of contact and have said they will actively pursue it and ensure it. They consider that an order is unnecessary. The local authority and the guardian both support the making of an order. The local authority say it should be 12 times a year, the guardian 8 times a year. I am very concerned to ensure a meaningful relationship between NG and IG, but I am equally conscious that whatever I put into an adoption order, will be to some degree, write in stone for the next 16 years.

[25]I have concluded that there should be an order because I am conscious that inevitably over those years, things will change and views may change. Mr and Mrs X may themselves change their mind. IG’s adopters (assuming he is adopted) may change their minds. Also, people may move and to quote a famous phrase, “Stuff happens.” Having an order in place sets out clear requirements for Mr and Mrs X, but also on any prospective adopters for IG, so there can be no possible misunderstanding.

[26]However, in my view, the order should set contact at a minimum of 6 times per year. I very much hope (and I am happy for it to be recorded in a recital) that there will be more contact than that. I also very much hope that everyone involved will focus on the quality of the contact, rather than simply a tick box of the quantity. I do not want to make things too difficult and complicated, and burdensome for Mr and Mrs X, and for the prospective adopters of IG. I think 6 times a year of good quality contact is the appropriate amount to fix as a minimum. That is the order I will make.

[27]I note finally that a roadmap for contact has been agreed between the parties, which seems a thoroughly sensible document, although of course not legally forceable. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk This transcript has been approved by the Judge