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Home > Judgments > 2013 archive

Re DF and GF [2013] EWHC 2607 (Fam)-1

Hearing to decide whether a placement order or a special guardianship order should be made in relation to a family placement.

In 2011 Mrs Justice Pauffley found that the father had inflicted serious injuries on GF's (born in 2010). At the disposal hearing, GF was returned from the maternal aunt and uncle to the mother.

In 2013 the matter was returned to court, following concerns that the mother had had contact with the father and had allowed GF and DF (born 1998 and a half sibling to GF) to come into contact with him. Both children initially were placed with the maternal aunt and uncle. At the conclusion of a fact finding hearing, Mrs Justice Pauffley found that the mother had put the children at risk of great danger; she had been aware of the consequences of such contact with the father, had lied to the court and had encouraged DF to become involved in these issues. 

By the time of the disposal hearing DF had moved to foster care and there was little disagreement that there should be a final care order with a care plan of DF remaining in the current foster care placement. GF remained with the maternal aunt and uncle who sought to adopt her, supported by the Local Authority. The mother, supported by the children's guardian proposed a special guardianship order being made to the maternal aunt and uncle. It was proposed that a section 91(14) order also be made indefinitely. The mother did not accept the findings made that she had been having contact with the father and that she struggled with the reasons as to why the children could not live with her.

Mrs Justice Pauffley considered the case law and guidance on deciding whether to make a special guardianship order or a placement order:

The court has the power to make a special guardianship of its own motion and against the wishes of the parties (s.14A(6)(b) and Re S (No1) (supra), Wall LJ (as he then was) at paragraphs. 73 and 74). 

The court cannot make a special guardianship order of its own motion unless it has received a report from the local authority dealing with a number of specified matters pursuant to s.14A(8). The local authority could however should be asked to file a report, cross referencing as necessary from existing material and supplying any missing information (Re S (No2) [2007](supra), Wall LJ at paragraphs 10, 14 and 15).

It is incumbent upon judges to give full reasons and explain their decisions with care.

Mrs Justice Pauffley also considered the conflicting best interests of GF and DF. She reminded herself of Re T and E (Proceedings: Conflicting Interests) [1995] , Wall J (as he then was) commented, obiter: …. "where a number of children are all subject of an application … in the same set of proceedings, and where it was impossible to achieve what was in the paramount interests of each child, the balancing exercise described by the Court of Appeal (in the Birmingham case) had to be undertaken and the situation of least detriment to all children achieved." This approach was considered and expressly endorsed by the Court of Appeal in Re A (Children) (conjoined twins: surgical operation) [2001].

Mrs Justice Pauffley made a placement order, dispensing with the parents' consent on the following basis:

- GF needed certainty, consistently and security for the rest of her minority, given the various changes and disruptions she had had in her life.

- She found that the mother was untrustworthy in her evidence. Mrs Justice Pauffley was unable to gauge what the mother would do in the future, but found that she was profoundly unreliable in relation to securing the child's security.

-Too much emphasis had been placed by the mother, DF and the Children's Guardian as to the effect on familial relationships if adoption were to take place. What was critical was that an explanation be given to GF as soon as possible to explain why she was not living with her mother and why she had become a full member of the maternal aunt's family. This would ensure that there was less opportunity for any confusion or problem.

- The maternal aunt and uncle required the most permanent and impregnable order. A s.91(14) order does not provide the maternal aunt and uncle or GF with the permanency and legal security that they require.

- She did not believe that the Children's Guardian had considered the mother's unpredictability and her dishonesty, nor had he adequately considered the needs of the maternal aunt and uncle to have unimpeded authority for GF. She found that his analysis of GF's welfare needs lacked an appreciation of the obvious risks presented by the parents and had failed to take account of the evidence as it emerged, in particular the mother's.

- Mrs Justice Pauffley considered DF's welfare needs but stated that these could not take priority over GF's. GF was the much younger of the two children and far more emotionally vulnerable, DF in contrast was approaching adulthood.

Laura McMullan barrister, Coram Chambers
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Neutral Citation Number: [2013] EWHC 2607 (Fam)
Case No: PX13C00027

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 22/08/2013

Before :

MRS JUSTICE PAUFFLEY
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Re DF and GF (Children) (Placement Order or Special Guardianship Order)
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Roma Whelan for the applicant, A Local Authority
Will Tyler
for the mother, MF
The father of DF
did not appear and was not represented
The father of GF did not appear and was not represented
Sara Davis for DF
Ray Pritchard
for the Children's Guardian, Mike Cain

Hearing dates: 13th and 14th August 2013
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Judgment
This judgment is being handed down in private on 22nd August 2013. It consists of 98 paragraphs.  The judge hereby gives leave for it to be reported.

The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

Mrs Justice Pauffley:
Introduction and issues
 
1. Just over a year and a half year ago, in December 2011, I made 'final' welfare decisions relating to these two children at the conclusion of the first set of proceedings. Now, in the almost surreal circumstances which have emerged since March this year, it is necessary once more to decide welfare questions, in particular, for the youngest child.

2. The key issue is as to whether in relation to her, a placement order or a special guardianship order should be made. There are also questions to be resolved about the level of contact between the youngest child, her mother and older sister.

3. The orders involving the older child are very largely uncontroversial. A full care order will be made in favour of the local authority on the basis that she will continue to live with foster parents and have separate contact both with her father and her mother. The only issue in relation to the older child is as to how much contact she should have with her younger sister.

4. In brief summary, the local authority urges me to make a placement order leading to eventual adoption by the younger child's aunt and uncle and to set a framework for contact with the mother and older sister at what might be termed a fairly minimal level. The mother and her older daughter strongly resist adoption and seek levels of contact at frequencies greater than those proposed by the local authority. The aunt and uncle who are and have been looking after the youngest child are firmly of a mind that adoption would be the eventual appropriate order; they invite me to set a framework for contact in which they would be able to make decisions from time to time as to frequency – to take account of the child's ability to settle to rather than being adversely affected by the arrangements.

Essential background – parties' participation
5. The two children are DF, born in 1998, so 15 years old, and GF who is just three, born in 2010. MF  is the mother of both children.

6. GF lived with her mother and GJ, her father, from birth until she was admitted to hospital in early November 2010 when she was only a few months old. When discharged from hospital in late November she went to live with her maternal aunt and uncle, NG and LG and their three sons, who were adopted by the Gs in 2000. The three boys, a sibling group, are now all teenagers. NG and LG looked after GF until, as the result of my decision she was rehabilitated to her mother in mid December 2011. When the children were removed from the mother's home on 3rd March this year, both of them went to stay with the Gs.

7. DF's father is AB with whom it had been thought she had no relationship because that was the version of history which the mother presented to the local authority and the court throughout the first set of proceedings. In fact, DF does have and has had a relationship with her father as well as her paternal grandmother; and there is no disagreement about the appropriate level of his continuing contact. He and his mother, the paternal grandmother, will continue to have approximately monthly visits which, subject only to satisfactory checks as to his criminal record, will enlarge to encompass staying contact.

8. The younger child's father is GJ who has been an occasional participant within the two sets of proceedings. In April 2011, at the first substantive hearing, when findings were made about his responsibility for GF's serious injuries, inflicted when she was a three month old infant, he had Solicitors and Counsel. He retained a legal team for the purposes of firstly his appeal and then the 'welfare' hearing in December 2011, though absenting himself from the second and third days of the fixture, ostensibly because he had work commitments.

9. When, in March this year, the second application was made for care orders, GJ participated fully, at first with a legal team and then unrepresented for the three day fact finding hearing in late April. On 1st May, he came along to listen to the judgment and entered into a dialogue with me immediately thereafter. Since then, GJ has failed to engage at all with the local authority, lawyers or the court process. Moreover, whereas in the past he has been an occasional correspondent both with the local authority and with me, there has been no recent message of any kind. The trail has gone cold. I note, in passing, that no one seemed in the least surprised. Clearly he was not expected to take part.

The judgment of 1st May 2013 – relevant findings
10. In the judgment of 1st May this year, I summarised the litigation history between paragraphs 3 and 13 and the catalyst for renewed intervention between paragraphs 15 and 20.

11. It was my overall finding, without hesitation, that the local authority had established its claim of illicit contact between MF and GJ. I was in no doubt.

12. As for the results of the mother's actions, I went on to find she had been "not only incredibly foolish, she has placed each of her children in situations of great danger. She knew full well what the consequences would be of established clandestine contact and she has taken calculated risks with her eyes wide open. I have no alternative other than to view her persistent denials as shameless attempts to deflect me away from the truth. And I find it particularly unpalatable to record, as I must, that she has allowed and probably encouraged (DF) to become involved in a way which will have done her no good at all."

13. In relation to her likely motivation, I said – "(MF) has done what she has because, almost certainly, she believed she would get away with it and that with (DF's) help she would be able to dupe the local authority. On the basis of what is known there is no shred of support for the notion that (GJ) had pressurised or controlled (her) so as to account for what has happened. I am convinced that they have acted together as willing participants, believing it would be all too easy to deceive the authorities. There is, after all, a very charming side to (GJ), revealed by the way in which he participated at this hearing. There was none of the menace apparent at court in April 2011. It is altogether easy to follow why (the mother) has behaved as she has given what I have previously described as her "powerfully loving feelings" for him and the investment she and (DF) have in the continuation of the relationship."

14. I expressed this view of the mother – "I do not now, if I ever did, view her as a victim. She is an articulate, feisty and extremely determined woman. She is, if anything, overly confident about her own abilities and judgment in any decision making. She is artful and cunning. It must follow from my overall findings …, that (the mother) has been not only incredibly foolish; she has placed each of her children in situations of great danger. She knew full well what the consequences would be of established clandestine contact and she has taken calculated risks with her eyes wide open. I have no alternative other than to view her persistent denials as shameless attempts to deflect me away from the truth. And I find it particularly unpalatable to record, as I must, that she has allowed and probably encouraged (DF) to become involved in a way which will have done her no good at all.

15. In conclusion, I found that "Both (children) have been exposed to very considerable physical, emotional and psychological risk as the result of their mother's actions. It is entirely necessary, in the circumstances, to make interim care orders in relation to each child because there is no sign that (the mother) has an ability to protect them from harm. No lesser form of intervention would operate so as to ensure the children's wellbeing."

In the immediate aftermath of the May judgment
16. In the immediate aftermath of judgment, I asked GJ if he wanted to say something. From the back of the court, he asked me to consider allowing him to see his daughter. I asked if that was because he had been seeing her. He said he had. I asked him to specify whether there had been any gap between December 2011 and March 2013 when he had not been in contact with her and he replied, "No." Asked to describe how extensive contact had been, he said, "every couple of weeks."

17. In response, I invited the local authority to convene a meeting between the allocated social worker and GJ so as to "settle upon a narrative" as to what had been happening so as to gauge his interaction with and affection for GF. Reacting to a suggestion that he might also wish to apply for contact with DF, GJ said, "Yes, please," he would like the local authority to consider that question and, as far as he was concerned the "slate (was) wiped clean" with social services.

18. When the mother left court after those events, she looked utterly shell-shocked; as she stood up to walk towards the court doors, it was as if she could hardly put one foot in front of the other.

Events since May 2013
19. The chronology since the May judgment is notable for only a very few events of significance.

20. DF, who had been living together with GF at the home of her aunt and uncle NG and LG, asked to move to foster parents, expressing what the Children's Guardian has described as "a degree of anger and frustration" and against a background of deteriorating relationships. On 9th May, DF moved to live with foster parents in the area close to her school.

21. The mother who had moved away from the home prior to the April hearing, has moved to a new property, about 20 miles from DF's foster home. She has been there since June 14th and before that had been staying with her sister and brother-in- law. The mother did not know, she maintains, until she heard it at court during one of the interlocutory hearings that GJ has moved to an area which is reasonably close to where she lives.

Lack of engagement in relation to the findings
22. Perhaps the most notable matter in the period between the last hearing and this has been the complete lack of engagement between the mother (as well as GJ) and the local authority so as to discuss the findings. No narrative has been created either in discussion with social workers or, indeed, as the result of statement preparation.

23. There is nothing about her response to my findings in the mother's 5 page statement of 2nd August. She said in evidence she had not read the judgment since May when it was handed down. When, on 6th June, the mother met with social workers she said she was unable to discuss the findings because she was still digesting them and needed to consult with her Solicitors.

Mother's position in relation to the findings

24. The mother's stance at this hearing is of significance. In his position statement for the 17th May interlocutory hearing, Mr Tyler made clear that his client did not wish to appeal. He said that although the mother does not accept the findings, she bears in mind the evidence on which they are based and acknowledges they are unassailable.

25. In evidence, the mother elaborated saying she accepted the court had the right to make the findings and that the girls would not be returning to her care but she does not agree with the accuracy of what was found. She said she is "damned if (she does) and damned if (she doesn't)." The reason she has not sat down and discussed the findings with the local authority is that she "can't give (the social workers) the answers they want … short of writing in blood that (she's) been seeing GJ … and that is never an answer (she) can give."

26. The mother continued by saying she does not accept what GJ had said on 1st May about coming to the house fortnightly; and she had 'phoned him after the hearing, in the presence of her brother-in-law, to ask him why he had said that. GJ's "exact words," according to the mother were, "Because it was what she (i.e. me) wanted to hear." Asked by Ms Whelan whether she had been living with GJ in the house in Rutland, the mother said she had "nothing further to add." It remained her position that she had only had contact with GJ when they attended court hearings, so in December 2011 and then not until March of this year.

27. The mother also said she "struggles with the court's reasons for why it is that the children should not live" with her. She has had to "accept the consequences of the findings" and has to "focus on the future". A phrase she uses a lot with DF is, "we have to make the best of the situation we're in and find positives."

28. It should also be noted that DF's position is that she had no knowledge of any contact between her mother and GJ. DF has filed no evidence in advance of this hearing. Ms Davis has simply relayed her instructions from which I am asked to conclude that DF was wholly ignorant of whatever it was that occurred. The suggestion runs thus, because GJ was only seeing GF "every couple of weeks," it was happening at times when DF was absent from home and she knew nothing about it because she was not told.

29. I am bound to say those contentions are altogether unreal against the background of my unequivocal findings – but that is what Ms Davis is instructed to say on behalf of DF – and I am not at all surprised given DF's seemingly unshakeable loyalty to her mother.

Parties' positions in relation to the key issue
30. So I turn to consider the parties positions in relation to the single most important issue, that of the most appropriate orders to govern GF's placement with her aunt and uncle, NG and LG.

The mother
31. The mother said in evidence she wants DF and GF "to remain sisters" and she wants to remain "their Mum." She said she knows DF wants to remain GF's sister and that's what she would want for them as well. The mother added that "in time, with help and support, and with (her) trying to be a positive influence in both their lives, as allowed, (DF) would come to accept (that GF's future does lie with (NG and LG)." Through her tears, and in a very small, gentle voice, the mother said "the last thing" she could do for "these girls is to (try to persuade me they should) legally remain sisters (for the sakes of) their own identities." Her priority is, she said, "the sibling contact."

32. The mother explained that one of the other reasons she opposes adoption is that because it would skew the dynamics of their family. She also worries that when she is older GF, if adopted, may ask why that had happened when her birth mother did not want it. Of her role in GF's future life, the mother said she "wants to be a mother but in a different way." She wants to be "a presence in her life" and does not want GF to have "abandonment issues."

33. It also worries the mother that NG and LG can be "very insular and very focussed on their nuclear family." It is, she said, "not often that they will come and see you … and if it is adoption, that kind of puts a stamp on it."

34. If an adoption order is made, the mother does not know "how in all honesty (she) would cope" and she "would worry about DF." She would have to "advise DF accordingly."

35. In his final submissions, Mr Tyler emphasised that one of the situations for which Special Guardianship Orders were created was so as to maintain placements within the wider family without resort to adoption. He asked me to consider what this arrangement would look like; how the mother, with the agreement of NG and LG will remain as part of GF's life; and how she will be kept informed of the significant as well as the trivial events.  In circumstances where, suggests Mr Tyler, GF will always know her mother as her birth mother and continue to see her, it would be both a "legal and social nonsense" for her to be adopted. It is also a consideration, said Mr Tyler, that NG and LG will accept a Special Guardianship Order if I were to decide that is the right order, so any such order would not be forced upon them; and they would be very capable of dealing with the disappointment of having failed to achieve adoption.

36. In relation to potential risks posed by the mother, Mr Tyler candidly accepted he is in some difficulty given my 1st May findings and because of his client's inability to accept the facts as found. However, argues Mr Tyler, the principal safeguard would be the ability of NG and LG to exercise parental responsibility to the exclusion of her parents; and there could also be an indefinite s.91(14) order  which would have the effect of putting the parents in the same position as natural parents post adoption. In both situations, it would be necessary to surmount the leave 'hurdle' before being permitted to make an application.

37. Overall, it is Mr Tyler's submission that GF does not need to be adopted in order to be nurtured and cared for by her uncle and aunt; and the skewing of family relationships will only add to her confusion rather being of any benefit.

LG and NG, GF's aunt and uncle
38. LG and NG are united in wishing to be able to adopt GF. In their email to me of 12th August, they describe it as "their deepest wish" that I should make a placement order rather than a special guardianship order. It is not a decision they have reached lightly or without the benefit of legal advice and they appreciate that special guardianship was put in place for inter family placements. They refer to the three "gorgeous boys," adopted by them in 2000 and the resulting understanding they have of "the importance of attachment, permanence and emotional stability." GF they believe deserves the "same peace of mind and assurance" of her place within their family; and if they are not able to adopt her, they foresee "issues for her around her own feelings of self worth and importance" in their family.

39. They know, say NG and LG that "where there is no blood tie, issues of identity and name take on a different importance. GF deserves no less, they say, than to share their surname and "feel a treasured part of (their) family." NG and LG point out that they have been "involved in GF's upbringing and care for the last three years, have agonised over her physical injuries and nursed her in hospital, have actively supported her recovery and rehabilitation back to (her mother). However, they "now face the findings of two sets of court proceedings and have to distance (themselves) from any loyalty to anyone other than (GF)." Given "everything that has happened, (they) cannot share parental responsibility and face being undermined, or more to the point, (GF's) permanence and safety being compromised." LG says she's been asked about family dynamics but, "it goes without saying, that it can never be the same again. (Their) priority is (GF) and the boys."

40. "From a selfish point of view," NG and LG point out that they have had "three years of their lives on hold (with) uncertainty and disruption." LG has given up her job and NG has put back any retirement plans. They say they surely deserve to raise GF "with some peace of mind; that a letter will not drop on the mat for a change in contact arrangements, or change of circumstance." They need, they say, to raise GF "with peace of mind" and "put all this behind (them). All they want "is to be allowed to adopt her" and give her, their boys and themselves "the chance of a normal family life together."

41. NG and LG gave evidence together, in the sense that they were both in the witness box at the same time, and expressed themselves simultaneously sometimes after a very small amount of discussion. For the most part, LG was the spokesperson. It was clear that in almost everything, they agreed with one another.

42. At times, LG was very emotional especially as she reiterated the reasons she'd given in writing for wanting to adopt. Asked about any perceived deficiencies in a special guardianship order, LG said "it's about permanence and (she) would feel compromised in relation to safeguarding (GF)." They acknowledge DF's need to see GF and "would always want to promote the relationship between them." They would make that a "positive experience" for both girls but would have to "be careful if (DF) is angry because she does (have a tendency) to vent and make accusations."

43. In relation to GF's perceptions, NG said she would not be too concerned until she's about 16 as to how she is viewed legally. LG said GF might well ask, "What did I do wrong, why didn't you adopt me." NG added, it would not make a difference to the way in which GF is treated whichever order is made.

The local authority's stance

44. The local authority's position was extraordinarily well-described by Mrs J, the team manager of the 'Looked After' team. She reflects the view of the Independent Reviewing Officer, JM, which is that the Gs will   be required to be vigilant about a range of well evidenced manipulative behaviour on the part of GF's parents which might, at the worst extreme, undermine the emotional stability of her carers and by default cause a risk to the stability of the placement.

DF's position
45. DF's views have been expressed by Ms Davis on the basis of her instructions. DF places a great deal of importance upon her relationship with family members and believes that NG and LG are intent upon eradicating her sibling relationship with GF. A very recent Twitter exchange between DF and her 16 year old cousin, the son of NG and LG, has reinforced DF in that view. She has not, said Miss Davis, had the reassurance of knowing that GF will still be her sister whom she adores.

Children's guardian, Mike Cain

46. The children's guardian, Mr Cain, is of the view that an adoption order is not necessary "to secure GF's permanency with NG and LG." He believes "a special guardianship order will secure her long term placement with them, allowing them to make all the key decisions in respect of her upbringing … such an order will also allow GF to maintain her links with her mother and sister, who in any case will be having contact with her."

47. In his oral evidence, Mr Cain said it remained his professional view, having heard NG and LG's evidence, that a special guardianship order would safeguard GF without skewing family relationships. In cross examination, Mr Cain said it "did give him some concern, yes" that the mother did not accept the findings made on 1st May but he thought NG and LG would be able to manage with the lesser order. He referred to the skewing effect of an adoption order, emphasised that he is guardian for DF as well as GF and said that in carrying out "the balancing act, by recommending a special guardianship order for GF, he was considering the rights of both girls to remain sisters."

48. Mr Cain also said that since the April hearing, he had "always favoured special guardianship" and felt he was being "up front and honest" in saying that to (NG and LG). He denied he had sought to place any pressure upon them to fall in with his view, saying, "I don't think I did try to persuade them towards special guardianship. In my own mind, I did not."

49. Towards the end of his evidence, Mr Cain answered a number of questions from Ms Davis designed to emphasise the likelihood of a very negative reaction on the part of DF if GF is eventually adopted. I asked Mr Cain whether or not he viewed the arguments in favour of and against adoption / special guardianship to be "finely balanced." He replied that clearly this case is "very finely balanced."

50. In his final submissions, Mr Pritchard floated the suggestion that if I were to decide that special guardianship would better meet GF's needs now, "the day may come when she is older, more mature and if she wanted to belong legally to NG and LG, when an adoption order might be sought." That, he submitted, could be the better time for that to happen.

Legal principles – Special Guardianship and Adoption
51. The legal framework of application when the court is faced with the choice as between adoption and special guardianship is comprised within a series of authorities, notably the two seminal decisions of the Court of Appeal, Re S (Adoption Order or Special Guardianship Order) [2007]1FLR 819, hereafter referred to as 'Re S (No1') and Re S (Adoption Order or Special Guardianship Order)(No2) [2007]1FLR 855. I should say at once that I'm most grateful to Mr Tyler for not only supplying photocopies of the cases but also for what he termed the 'canter' through the principal points for consideration during his final submissions. No one suggested his analysis was defective or wanting in any way.

52. The following factors relating to procedural matters deserve explicit mention –

• Pursuant to s.14A(6)(b) of the 1989 Act, the court has the power to make a special guardianship of its own motion. The statute explicitly envisages an order being made against the wishes of the parties and in a case where the party seeking a different order (e.g. adoption) does not want to be appointed the child's special guardian (Re S (No1) (supra), Wall LJ (as he then was) at paragraphs. 73 and 74). 

• Section 14A(11) is unequivocal. The court cannot make a special guardianship order of its own motion unless it has received a report from the local authority dealing with a number of specified matters pursuant to s.14A(8). The court, however, could adopt a pragmatic approach. If much of the relevant information was already available, the local authority should be asked to file a report, cross referencing as necessary from existing material and supplying any missing information (Re S (No2) [2007](supra), Wall LJ at paragraphs 10, 14 and 15).

• It is incumbent upon judges to give full reasons and explain their decisions with care. In many cases, it may be appropriate to pause for reflection (Re S (No 1) (supra) at paragraph 48).

53. There is then guidance as to the approach to be adopted in relation to the discretionary exercise, as follows –

•  A special guardianship order was only appropriate if, in the particular circumstances of the particular case, it was best fitted to meet the needs of the child concerned. Nothing in the statutory provisions which limits the making of a special guardianship order or an adoption order to any given set of circumstances. There is no presumption that a special guardianship order is preferable to an adoption order in any particular category of case. Each case must be decided on its particular facts and will require careful application of judicial discretion (Re S (No 1) (supra) at paragraph 47).

• The White Paper, Adoption: A New Approach, Cm 5017, contained a helpful summary of the main features of the special guardianship regime, and helpful illustrations of the circumstances in which special guardianship might be appropriate, including with family members (Re S (No1) (supra) paragraphs 41, 42).

• Where a child is adopted by a member of his wider family, the familial relationships are inevitably changed. This is frequently referred to as the 'skewing' or 'distorting' effect of adoption, and is a factor which the court must take into account when considering whether or not to make an adoption order in such a case. The weight to be given to this factor will inevitably depend on the facts of the particular case, and it will be only one factor in the overall welfare equation (Re S (No1) (supra) paragraph 51).

• An essential component of the advantages produced by an adoption order for both adopters and children is that they are in most cases then free from the threat of future litigation. If the same protection is not available in respect of special guardianship orders, this may be a substantial derogation from the security provided.

• Under a special guardianship order, a parent requires leave to reopen the issue of the order itself or of the child's residence but similar considerations do not apply to other forms of order under s.8. The court may invoke s.91(14) to place a filter on further applications and has the jurisdiction to do so indefinitely; but the test for overcoming the leave restriction has historically been seen as relatively low.

• The statutory scheme for making special guardianship orders was designed generally to allow unfettered access to the court thereafter by parents in relation to all s.8 orders apart from residence. In this respect, it must be accepted that special guardianship does not always provide for the same permanency of protection as adoption. This is a factor which, in a finely balanced case, could well tip the scales in favour of adoption (Re S (No 1) (supra) paragraphs 65-68).

• Whilst special guardianship orders may well have been designed to encompass, and in many cases are suitable for, long term familial placements, it is not helpful to approach any given case on the basis that one option is the 'preferred option' unless there are cogent reasons against it (Re M-J (Adoption Order or Special Guardianship Order) [2007] 1FLR 691, Wall LJ at paragraph 17).

• Whilst it may be material for the court to consider which order was less 'interventionist', in the context of whether an order was a 'proportionate' response, no such consideration could be allowed to derogate from the welfare principle (Re M-J (supra) at paragraph 19).

54. I have considered the other cases to which Mr Tyler referred during submissions, namely Re S v B and Newport City Council; Re K [2007] 1FLR 1126; Re AJ (Adoption Order or Special Guardianship Order) [2007] 1FLR 507; and Re I (Adoption: Appeal:Special Guardianship) [2012] EWCA Civ 1217. Though of interest as examples of how, on different occasions, judges have resolved particular cases and also as to various reiterations of the correct approach by the Court of Appeal, nothing emerges so as to significantly add to nor detract from the key principles set out within Re S (No1)(supra) and Re S (No 2) (supra).

Balancing the welfare interests of more than one child
55. The vexed question as to how the court should respond when confronted by the divergent interests of two or more  children has also been the subject of useful guidance most notably from the House of Lords in Birmingham City Council v. H (A Minor) [1994] 2AC 212. In that case, which concerned a 15 year old mother and her baby who were both the subjects of care proceedings the question as to whose welfare was paramount was squarely raised over the issue of contact. The House of Lords reversed the Court of Appeal's ruling that neither child's welfare should be accorded priority over the other holding that it was the child in respect of whom the application was being made – the baby in that instance – whose interests were paramount.

56. Reconciling the interests of siblings is complicated, especially where they are both the 'subject' of the same proceedings, as here. In theory each child's welfare should be the court's paramount consideration. In practice, where their interests conflict, that may not be achievable. In that situation, it may be appropriate to adopt the Court of Appeal's approach in the Birmingham case so as to balance the children's interests and find a preponderance in favour of one or the other.

57. In Re T and E (Proceedings: Conflicting Interests) [1995] 1FLR 581, Wall J (as he then was) commented, obiter: …. "where a number of children are all subject of an application … in the same set of proceedings, and where it was impossible to achieve what was in the paramount interests of each child, the balancing exercise described by the Court of Appeal (in the Birmingham case) had to be undertaken and the situation of least detriment to all children achieved."

58. That approach was considered and expressly endorsed by the Court of Appeal in Re A (Children) (conjoined twins: surgical operation) [2001] 1FLR 1. Ward LJ said, "Given the conflict of duty, I can see no other way of dealing with it than by choosing the lesser of two evils and so finding the least detrimental alternative. A balance has to be struck somehow and I cannot flinch from undertaking that evaluation, horrendously difficult though it is."

Discussion – the key question
59. So I turn to discuss the critical question as to whether an eventual adoption or special guardianship order would best meet GF's welfare needs. I make clear, at the outset, how very useful it has been to take time for reflection. In the few days since the evidence was given, I have had an opportunity to not only ponder what was said at the hearing last week but also to recall the nature, quality and impact of the evidence given by the mother at the three substantial hearings, two in 2001 and the third last April.

60. When the hearing began, on Tuesday of last week, I had no preconceptions as to my eventual decision. The written evidence seemed to me to be almost equally weighted on either side of the dispute. Strong arguments were ranged in favour of adoption by NG and LG, fulsomely supported by Mrs J on behalf of the local authority. Mr Cain and Mr Pritchard advocated in favour of the solution desired by the mother and DF, saying as Mr Cain did in evidence, that special guardianship orders were brought into being so that children who could not brought up by their parents could nonetheless remain within their natural families.

61. As the evidence was given, it became increasingly clear that there are and should be no presumptions or automatic responses to a situation of this kind. It is not and never could be a case of "one size fits all." That would be far too mechanistic an approach and would altogether fail to achieve justice as between the parties and for GF in particular.

62. Ultimately, I have decided – and by a wide margin – that a placement order leading to eventual adoption, rather than a special guardianship order, is the most appropriate solution so as to meet GF's welfare needs. I now turn to my essential reasons for that decision.

GF's needs
63. GF's overriding requirement is for complete security and stability throughout the remainder of her childhood and throughout her life. She deserves to know that there are no circumstances in which she will be required to move from the home of NG and LG; that she belongs with them in every sense; and that neither of her natural parents retains even slight influence as to how she is raised or has a say in the major or minor decisions to be made about her, as she grows. In short, GF requires 'watertight' arrangements and for those who are looking after her to be confident that they exercise full and exclusive authority for her, to the exclusion of all others, notably her natural parents.

64. Against the background of the various changes and disruptions which GF has been required to undergo, there is now no room for ambiguity. She needs certainty, consistency and predictability of the kind that the Gs so fervently wish to provide. As Mrs J, explained in evidence, "it is important for NG and LG to be confident as carers and to have that element of control. Given the circumstances and the history, (Mrs J) has sympathy with that. There has been (she said) … breach of confidence and breach of trust. The Gs have found that difficult. They would like to move forward and 'build bridges' but they are very, very cautious."

The mother at this hearing – potential for harm

65. It is also highly material that the mother's evidence at this hearing, particularly in response to the findings made in the May judgment, reveals her as occupying still a position of complete denial in relation to there having been any contact between herself and GJ in the period since the December 2011 hearing. In summary, she has no option other than to accept the findings were made but inwardly she does not believe the children should be anywhere other than with her, as her evidence about 'struggling' made clear. That, I am quite sure, is not only apparent to NG and LG; it must also fill them with apprehension, if not fear, for the future.

66. The mother's presentation at this hearing mirrored very closely the stance she adopted at the December 2011 'welfare' determination. She was softly spoken, adopted an air of gentleness and of being rather frail. She sought to portray herself as disempowered but anxious only to do the right thing by her daughters. A prime example was when the mother said that her contact with GF, shared on occasion with DF, would be "good for them, good for the rest of her family and good for DF too." She explained, crying and dabbing her eyes as she did so, that was "because she would get to see them as they are – as sisters – they may be two separate entities but they are sisters." 

67. In similar vein, when asked to consider the potential for future applications and a possible s.91(14) restriction, the mother said, in a very soft voice, that she "would not mind s.91(14) at all – this has got to work for everyone. (She is) not going to make any applications." She urged me to believe her when she said she is "not going to disrupt the placement. GF is with LG and NG now and they are her day to day parents, (she knows) that." With the same degree of apparent earnestness, the mother said she "knows GF cannot be returned to (her) care and (she is) more than fortunate" that NG and LG can provide for her.

68. I was far from convinced. At this hearing the mother put on, what I am quite sure was nothing more than, a performance of subdued compliance in much the same way as she did in December 2011. There was none of the feistiness, none of assertiveness nor the single minded determination so readily displayed at the hearings in April 2011 and April 2013. It was, I would have to say, a skilful effort; and if I had not encountered the mother before this hearing, I might well have been taken in. As it is, borne of my now lengthy exposure to her wily behaviour, I was not deceived.

69. I simply do not trust this mother to be true to her own assertions in evidence. Her fine words at the December 2011 hearing turned out to be as empty as space. I have no means of gauging what she plans to do next or in the years ahead. By her own actions, she has demonstrated – in the clearest way possible – how profoundly unreliable she can be most especially in relation to the critical area of ensuring the children's safety.

70. Moreover, the mother was unscrupulous in the way she allowed and probably encouraged DF to become involved in the April 2013 hearing. There are several signs that more of the same dynamic is in play now. DF's case at this hearing has been a mirror image of that advanced by the mother. DF has told Mr Cain she is "concerned she would be written out of GF's life" (if she were to be adopted) and that henceforth she "would be GF's cousin not her sister." I have no doubt at all but that DF has been heavily influenced by her mother.

The potential for distortion of family relationships

71. I consider far too much emphasis, in fact, has been placed upon the potential for distortion or skewing of family relationships by the mother, DF and also Mr Cain. It is significant to consider GF's age, background and sense of reality when pondering the likely effects upon her of becoming an adopted person. Her experience, thus far, has been of living in the G's home and of being looked after by them for long and continuous periods. By my calculation, she has lived for more than half her life with NG and LG. She calls LG, 'Mommy' as well as, more recently, 'Poppy'. She has always, "from Day 1" according to NG, called him 'Dida.' GF calls her mother, 'Moma.'

72. For GF, I apprehend no real problems in understanding the situation as the adopted child of NG and LG who will continue to see and know both her mother and sister, as all agree she should and for what they are – her birth relatives. Explaining the biological and legal relationships, in all probability, presents little in the way of difficulty or confusion.

73. The more problematic area for discussion, in time, will be as to the reasons why GF (and DF) could not remain living with their mother – not least because she does not accept the foundation of that all important decision. Thus, it will be of immense future importance to ensure that the mother and DF are not permitted to communicate to GF their version of events post December 2011. If they were to do so, there would be scope for very considerable confusion in GF's mind.

74. So I reject the suggestion that by reason of the distorting effect upon family relationships, rather than becoming an adopted person, GF should be placed under a special guardianship order. And I cannot agree with Mr Tyler's submission that adoption would represent a 'legal and social nonsense.' As with most things where small, and even teenage, children are concerned, the critically important thing is to be honest, clear, consistent, age appropriate and sensible whenever providing explanations and answering questions. The sooner there is a version of events which can be given to GF as to why she is not living with her mother and has become a full member of the G family the less opportunity there will be for any confusion or problem.

75. The same should be available for DF so as to make sense for her of what will be happening. LG demonstrates a very good aptitude for providing DF with an opportunity to understand why GF should become a full member of their family. The only risk is that the mother may seek to undermine that good work for her own selfish purposes.

Impact upon NG and LG of the mother's actions

76. It is also of considerable significance that NG and LG were scrupulous in evidence not to offend or criticise the mother. They make just passing reference in their 12th August email to the impact upon them of recent history. I am as sure as I can be that they were so polite and reassuring in their stated desire of "moving forward" with the mother for GF's sake because of their interest in preserving, so far as possible, the quality of family relationships. As LG said, she would "always work with (the mother) to do the best for GF." They "are sisters and love each other."  There have been, said LG, "no face to face arguments. (The mother) has not rung up and abused (her) over the 'phone. That's not within her power at the moment. Since all of this happened, she has done everything she can to support (the placement)."

77. But that is not to say there have been no problems. Clearly there have. DF, who LG said she loves very much, has been very angry. LG acknowledges how "very hard" it is for DF. She stressed they have no desire to cut her out of GF's life and that whatever orders are made, they will still be sisters. DF's recent comment, as reported by LG, that she and her husband "would never adopt GF and that (they) were just trying to remove (her and her) Mum from her life" has to be seen for what it was, an angry, immature and impulsive reaction. LG was quite right to observe that DF "has to accept responsibility for her actions." I could not agree more with that sentiment.

78. All the signs are that DF is the messenger for her mother's sense of frustration and irritation at the situation in which she finds herself. I detected no sign whatever that the mother is either surprised or vexed by DF's recent behaviour.

79. The reality is that the Gs have lived through quite extraordinarily harrowing times, as the contents of their email make manifest. Their trust and confidence in the mother to act responsibly, so as to accord priority to the children's well being and need for protection, must have been shaken to the core. They would see themselves I'm quite sure, as vulnerable with anything less than an eventual adoption order. They, like me, have no idea as to what the mother and / or GJ might plan to get up to next or in the medium to long term future. NG's and LG's understandable requirement is for the most enduring, permanent and impregnable order which, in this instance, can only be eventual adoption. Special guardianship falls a long way short in terms of putting the Gs where they should be, for GF's sake, in terms of exercising complete authority.

80. Lastly as to this aspect of the matter, I have considered indefinite s.91(14) orders as well as permitting the Gs to change GF's name. Those measures fall a long way short of providing GF and the Gs with the legal security, the "permanency of protection" they require.

Disagreement with Mr Cain

81. I am conscious that in deciding the key question as I have, I am at odds with Mr Cain. I would hope it is obvious from what I've already said as to the reasons why. In short, it is because I do not believe he has paid any or any real attention to the mother's unpredictability, her lack of sincerity, her dishonesty, her track record of 'riding roughshod' through welfare plans designed to safeguard the children and her ability for deception. Nor has Mr Cain adequately weighed the needs of the Gs to be invested with full authority for GF unimpeded, as far as possible, by the threat of intervention from the mother and GJ.

82. Moreover, I believe Mr Cain decided very early on in this set of proceedings that a special guardianship order would best 'fit' the circumstances here as being one of the situations described within the White Paper  (particularly paragraph 5.8). He agreed he had discussed his preferences with LG at both their meetings, on 12th June and 16th July.

83. His analysis of GF's welfare needs, I am bound to say, seemed to me to be fairly unsophisticated, lacked a full appreciation of the obvious risks presented by the parents and failed to take account of the evidence as it emerged, particularly from the mother. The circumstances of this case do not lend themselves to the simplistic solution suggested by Mr Cain.

Balancing the welfare interests of GF and DF

84. Finally as to this aspect of my decision, I should say I have considered DF's welfare needs but cannot allow them to take priority over those of GF. It is impossible, quite obviously, to achieve an outcome in which each of their interests is paramount.

85. GF is, and by a very long way, the younger of the two children. She is far more emotionally vulnerable, given her life experiences thus far than DF who, by comparison, is fast approaching adulthood. DF is all too aware of her 'rights' and has spoken, though not recently, of an intention to leave care and return to her mother, so soon as she is entitled to – possibly as early as next May.

86. I strongly suspect that if the mother had been able to lend her support to the solution sought by her sister and brother in law, so too would DF. She would have been able, with sensible guidance, to have come to an understanding that no one was trying to exclude her from GF's life, that she would continue to see her regularly and that nothing would be said by NG or LG to persuade her to the view that DF is no longer her sister. The problem is that DF, fiercely loyal to her mother has been unable to listen, thus far, to any rationalisation of the situation.

87. All I am able to do is seek to achieve, as between the two children, the least detrimental alternative in a situation which has been created, I should stress, solely as the result of the mother's own actions.

Welfare Checklists – 2002 and 1989 Acts
88. So I turn to consider the various factors under the two 'welfare checklists' insofar as they have not, thus far, been mentioned.

89. I have said enough already about GF's particular needs, the likely effect upon her of having ceased to be a member of her original family and of becoming an adopted person, her background and the risk of harm.

GF's relationships with relatives - Contact

90. The last matter for discussion under the 2002 Act 'checklist' is the relationship GF has with relatives and with any other person to whom the court considers the relationship to be relevant including –

(i) the likelihood of any such relationship continuing and the value to her of its doing so;

(ii) the ability of and willingness of her relatives, or any such person, to provide GF with a secure environment … and otherwise to meet her needs; and

(iii) the wishes and feelings of any of GF's relatives, or of any such person, regarding the child.

As to the second and third of those considerations, I have said enough already. In relation to the first, the value of continuing relationships, it is most convenient to consider the contact issue. I do so having first observed that the Gs are entirely accepting of GF's need to maintain a relationship with her natural mother as well as DF.

91. A consensus view emerged during the course of the hearing which was that the Gs should have a broad discretion, that there should be some kind of 'framework', rather than an order, to provide for the minimum so that they, the mother and DF all know the parameters and would be able to plan meetings' dates accordingly.

92. I altogether accept there will be real value for GF in continuing to see her mother and DF so as to be able to make sense of who she is, where she came from and her early life story. I agree with Mr Tyler when he suggests the local authority's proposal of one face to face visit and two indirect contacts with the mother annually is too infrequent. I am conscious that the Gs began by advocating only one or two visits a year for the mother and 4 – 6 visits annually for DF.

93. The Gs made it transparently clear that they would intend to be guided by GF's reaction after each visit; that she should be allowed to settle after this hearing and that currently, she is "very confused and unsettled again."  They had read the guardian's recommendation of 6 times a year for the mother, commenting that they'd used the phrase, "at least once a year" on the basis that if contact was positive it could increase. It would all depend, they said, upon how GF was after the visits. At one point in evidence, the Gs indicated they would be guided by me as to the appropriate level of contact. They then went on to agree that they would agree to 6 times a year "providing there is an opportunity for flexibility." Still later, the Gs disagreed with Mr Tyler's suggestion that the mother might have contact once per month, saying they "personally felt that was, for GF, emotionally too much; that it would require her to have 'a foot in both camps'; that she would be "pulled backwards and forwards."

94. As for the framework which should apply to DF's contact with GF, the Gs said that much would depend upon DF's reaction to the outcome of this hearing. If DF has some help, starts to take responsibility for her actions and her anger subsides then the Gs would be able to agree they could work towards and manage contact at monthly intervals. They stressed contact at that level would be "OK so long as DF is behaving well and the visits are successful." Fortnightly visits, as DF suggests, according to NG, would be unsustainable in terms of their own family life. LG added that contact at that frequency would be "really difficult and, for GF, too much."

95. In my assessment, the right plan or framework is for GF to see her mother approximately every two months and DF each month or so. Clearly it would be an advantage for GF to see her mother and sister together on three of the mother's six annual visits and in natural, family surroundings. I leave to the Gs complete discretion whether there should be additional contact; and likewise, if there are circumstances which make it inappropriate for GF to see either her mother or sister at any given time, then the Gs are to have the authority to withdraw a planned visit. Everything will depend upon how, for example, DF is able to manage her emotions and concentrate upon ensuring GF has a good time. 

96. The very last matter for consideration is whether pursuant to s.52(1) of the 2002 Act I should dispense with the mother's and the father's consents to a placement order. I have no real idea as to what GJ would say in response but remind myself it was the gist of his evidence in April that so long as GF was happy and well cared for he would be content.

97. In her written statement, the mother said that if I was "not minded to make a special guardianship order then (she) would wish for GF to remain with the Gs and (she realises) that this would be by way of adoption. The mother does not want GF to be placed outside the maternal family but equally clearly, she does not consent to the making of a placement order.

98. My evaluation of GF's welfare needs results in an unequivocal decision in favour of the making of placement order. There is no alternative, in that scenario, to dispensing with the parents' consents to her placement for adoption on the basis that GF's welfare requires me to do so.