Re W (A Child)  EWHC 829 (Fam)
Complex and extensive proceedings heard by the President in respect of a contested adoption.
The case concerned W, a girl born in November 2012. Following care proceedings brought by the local authority, W was made the subject of care and placement orders in September 2013, and placed with prospective adopters, Mr and Mrs A in January 2014. W's siblings – X, Y and Z – remained with their father under a 12-month supervision order, and enjoyed extensive contact with their mother.
The proceedings that followed were extensive and complex. On 30 October 2013, the father, acting as a litigant in person, filed a notice of appeal out of time, which was rejected on the papers. Subsequently, when Mr and Mrs A made their application to adopt W in May 2014, the father sought leave to oppose the making of an adoption order. This was also rejected. The father then sought to renew his challenge to the original care and placement orders, and sought to appeal against the order denying him leave to oppose the making of the adoption order. The first application (to renew his challenge) was refused, but the second (the appeal) was successful and the re-hearing of the father's application for leave to oppose the making of an adoption order took place in December 2014.
In the interim, however, the father had filed in the Court of Appeal his application for permission to appeal his application to renew his challenge to the original care and placement orders, which was refused on the papers by King LJ on 28 January 2015 but on renewed oral application was granted by McFarlane LJ on 18 March 2015. On 6 May 2015, the father's appeal was allowed on the basis of the inadequacy of the first instance Judge's analysis and reasoning; the Court of Appeal did not express a view on the underlying merits of the local authority. The matter was therefore returned to "be re-investigated at a full hearing" before a High Court judge. .
Ms Justice Russell heard the matter over five days and handed down judgment on 22 July 2015. It should be noted that the local authority's position by the end of that hearing had altered, in that it was no longer seeking any public law orders. As such, the choice for the court was between a child arrangements order in favour of the father or an adoption order in favour of Mr and Mrs A. Ms Justice Russell determined that W should be reunited with her birth family. Mr and Mrs A appealed and their application was granted on 11 December 2015. The Court of Appeal concluded that Ms Justice Russell's had not understood the Court of Appeal's decision in the first appeal. Therefore, the proceedings before her were sufficiently flawed so as to render the outcome unsafe, with the result that her order had to be set aside and the welfare issue determined by a different judge.
The Current Proceedings
The matter ultimately came before the President, who had to consider the two substantive applications before the court: the local authority's application for permission to withdraw its applications for care and placement orders in respect of W; and 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 (ACA 2002) to dispense with the consent of her father and mother. In respect of the first application, which was unopposed, the President held that it was "plainly appropriate"  to give the local authority leave to withdraw its applications, as the continuation of public proceedings had no useful purpose or benefit to W. Therefore, the President was left to determine whether to grant the application for adoption and, relatedly, whether there should be any order in relation to post-adoption contact.
During the course of the proceedings, a number of disagreements between counsel arose as to the appropriate principles to be applied. As such, the President set out at length the relevant statutory and case law that he relied on in making his decision [58-81].
Additionally, the President specifically clarified four legal issues that had been raised by counsel. First, the President that threshold was not an issue, given that the care and placement orders had been set aside and the application for an adoption order was therefore being properly pursued under s.47(2) of ACA 2002. Secondly, the Article 8 rights of W, her siblings, her biological parents, and Mr and Mrs A were all engaged and there was no hierarchy of rights under this provision. Third, notwithstanding the failings of the local authority [also see below], the President would not go so far as to hold that there had been unfairness and a consequent breach of Article 8. Finally, it was not necessary or helpful to consider whether W's proposed return to her father would be a situation so intolerable as to engage Article 3.
The President heard extensive evidence from the parties and a number of experts, including a consultant psychiatrist in child and adolescent psychiatry; an independent social worker, a clinical psychologist; and a consultant clinical psychologist and systemic psychotherapist. The expert evidence in particular is set out in considerable detail at paragraphs 93-176, the President having established at the outset that it was central to the resolution of the case. Likewise, the judgment quotes at length from the parties' final submissions.
The President was faced with a "stark choice"  between two outcomes for W: (a) adoption by Mr and Mrs A or (b) rehabilitation to her father and birth family, each of which carried risks that were difficult to predict or quantify. The argument put forward on behalf of Mr and Mrs A – and supported by the Guardian – was that if W was adopted, from her perspective there would be no significant change in her life; if any difficulties emerged, they would not do so for some years (if at all), were unlikely to be severe, and could be mitigated by contact with her birth family. Conversely, if W were to be rehabilitated to her birth family, the trauma of a move from everything she has known would be immediate, severe, and pose a risk to the placement.
In contrast, the father submitted that if she were reunited with her birth family, W would quickly overcome any initial trauma, thereafter facing an unproblematic future. However, were W to remain with Mr and Mrs A, the placement would be at risk because of the difficulty of creating an honest "narrative" for her to accept, i.e. that she was adopted whilst her siblings remained thriving in the birth family.
After acknowledging that the starting point had to be W's current reality, the President held that there were "considerably" more risks and uncertainties in moving W from Mr and Mrs A to her birth family than in leaving her where she was . Should W be removed from Mr and Mrs A, there was a high probability of fairly immediate and significant levels of distress and trauma and "a very real likelihood that the placement would be put under such pressure that it might break down, which if it were to happen would carry with it a more than fanciful risk of catastrophe" . Further, the risk of the "narrative" putting the placement under unbearable and unsustainable pressure was small.
In contrast, W did not have a meaningful relationship with her birth family; her primary relationship was with Mr and Mrs A and their son. In those circumstances, notwithstanding the excellent care and commitment that the father offered, the President considered that it would be "almost too much for any parent in his situation"  to meet the needs of W. The President held that the risks of moving W from Mr and Mrs A were too great, and potentially so unmanageable, as to demand that they not be run, and that W's welfare necessitated that she remain with Mr and Mrs A. He further found that it was in W's best interests to be adopted by Mr and Mrs A and that her welfare required parental consent to be dispensed with; nothing else would do. As such, the President granted Mr and Mrs A's application for adoption.
The President also considered whether any post-adoption contact orders should be made. He noted the general agreement amongst the experts that direct contact would safeguard W's long-term psychological and that it should be started sooner rather than later. However, the President held that there should be no order as to contact; rather it must be for Mr and Mrs A, as W's parents, to decide when, how and in what circumstances contact should begin and develop.
Postscript: the Local Authority's Failings
Though the President declined to determine whether the behaviour of the local authority constituted a breach of the parties' Article 8 rights, he was scathing about their failings. In particular, he highlighted the deficiencies of the initial interim threshold document, which he held was "both in form and in substance a most unsatisfactory document" , and criticised the local authority for making certain disclosures to the father's employer in February 2015, causing him to lose his job.
This judgment was delivered in private. The judge has given leave for 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 families must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
Case Nos: omitted
Neutral Citation Number:  EWHC 829 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 6 March 2017
Published: 12 April 2017
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
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In the matter of W (A Child)
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Mr Frank Feehan QC and Ms Madeleine Reardon (instructed by Osbornes) for the applicants (Mr and Mrs A)
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)
Ms Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells) for W's father
Ms Catherine Jenkins (instructed by Wannops) for W's mother
Ms Deirdre Fottrell QC and Ms Louise MacLynn (instructed by Freemans) for W's sister X
Mr Jonathan Bennett (instructed by Railton) for W (by her children's guardian)
Hearing dates: 6-9, 12-15, 20 September 2016
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Sir James Munby President of the Family Division :
1. This is a very complex and worrying case. It is, I think, by some margin the most difficult and concerning case of its type I have ever been involved in.
2. I am concerned with the future, the welfare throughout her life, of a little girl, W, who was born in November 2012. She has three older full siblings: a sister, X, who was born in September 2003, and two brothers, Y and Z, who were born in March 2007 and February 2009 respectively. Following care proceedings brought by the local authority, Brighton and Hove City Council, in December 2012, X, Y and Z live with their father but have extensive and now unregulated contact with their mother. W is, and has since January 2014 been, living with prospective adopters, Mr and Mrs A.
3. There are in substance two applications before me: an application by Brighton and Hove City Council for permission to withdraw its applications for care and placement orders in respect of W; and an application by Mr and Mrs A 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.
4. It will be apparent from what I have already said, that this litigation has been proceeding for an unusually long time. To say that it has proceeded in an unsatisfactory manner would be understatement on a grand scale. The simple fact, which demands explicit acknowledgment, is that the system has failed W, her siblings, her father and mother and Mr and Mrs A, on a scale which although, happily, unique in my experience – no comfort, of course, to those involved – must be profoundly concerning to anyone and everyone involved in the family justice system. The delay for W has been deplorable. And the terrible reality, and there can be no shrinking from this, is that this delay – I am referring here to the delay down to the hearing before me, not to the very regrettable further delay, for which I apologise, since I reserved judgment – has, in the event, been determinative of the outcome; an outcome which might perhaps (I emphasis, might) have been different had the case been resolved sooner.
5. I am conscious that this judgment is very long. It is designedly so. The case is complex. The history is both complex and disturbing. At the end of the day, the expert evidence, which is itself complex, lengthy and nuanced in much of its detail, is central to the resolution of the case. As will appear in due course, constructing a truthful 'narrative' for W, explaining – both for now and into and through her adolescence and adult life – what has happened to her and why, is both a crucial necessity and itself a task of no little difficulty and complexity. Inevitably no judgment, if it is to be kept within manageable proportions, can cover everything, let alone all the voluminous evidence I have read and heard. But in this case there is a compelling need, in my judgment, for the expert evidence, both written and oral, to be set out at more than usual length, for this judgment will itself, necessarily and properly, become part of the narrative. The same goes for the parties' submissions. Furthermore, it is important that the detail and nuance of what has been said is not lost, as must always to some extent happen, if the material is paraphrased, however accurately, rather than quoted verbatim. Hence the unusual volume of the material referred to by way of direct quotation.
6. Three weeks after her birth, W was placed in foster care. Care proceedings in relation to all four children were begun a few days later by Brighton and Hove City Council in the Brighton County Court. The local authority sought interim care orders in respect of all four children but was granted such an order only in respect of W. X, Y and Z remained with their father under interim supervision orders. Applications for placement orders in respect of Z and W were made in June 2013. Shortly before then the parents had separated. The mother had certain mental health difficulties which there is no need for me to describe.
7. The final hearing came on before District Judge Gamba in September 2013. By then the local authority's plan was for X and Y to be placed in long-term foster care and for Z and W to be adopted. Accordingly, it sought care orders in respect of X and Y and care orders and placement orders in respect of Z and W. The father's case, supported the mother, was that he should care for all four children. The guardian supported the local authority's case in respect of W but considered that the other three children should remain in their father's care.
8. Why a case which, at that time, was reasonably straight-forward should have taken nine months to reach a final hearing was not explored before me. The District Judge handed down his judgment on 19 September 2013. He rejected the local authority's case in relation to X, Y and Z, making, in each of their cases, supervision orders for 12 months. He made care and placement orders in respect of W. His reasoning in relation to W was, on any view, thin at best:
"I feel that the father does have further work to do in relation to his own situation and that coupled with the care of the three older children will occupy his time fully. I feel that the risk to W of returning to the father's care at this time is too great for the reasons given by the Guardian and [expert], and that therefore the only order to be made in her best interests is as sought by the local authority for a placement order. I also consider that the welfare of the child requires me to dispense with the consent of the parents."
9. The District Judge's judgment was handed down only two days after the Court of Appeal had given judgment on 17 September 2013 in In re B-S (Children) (Adoption Order: Leave to Oppose)  EWCA Civ 1146,  1 WLR 563,  1 FLR 1035. He had, however, had cited to him and indeed referred in his judgment to the judgment of the Court of Appeal in Re P (A Child)  EWCA Civ 963.
10. In his judgment, District Judge Gamba was critical of important parts of the local authority's evidence. One social worker's oral evidence he found "somewhat unconvincing," observing that during her cross-examination it became apparent that there were "defects in the local authority's position." He was exceedingly critical of the evidence of Khrys Kyriacou, a domestic violence specialist. "Her report was commissioned in curious circumstances;" "She had limited access to the papers. She had no real overview of the case;" her conclusion was "startling." He said "I do not rely on her evidence in any way." At the very end of his judgment, District Judge Gamba invited the local authority to
"seriously consider a change in the social work team. It would be better for all concerned if there was a new social worker assigned to the case."
11. On 8 October 2013 the father's then counsel provided negative advice as to the merits of an appeal against the orders in respect of W. On 30 October 2013 – out of time – the father, acting as a litigant in person, filed a notice of appeal. This was considered by His Honour Judge Farquhar on the papers on 14 November 2013. He ruled that there were no grounds for extending time and that in any event the application would be dismissed on the merits. The father's time for requesting an oral hearing expired on 21 November 2013 without him having made any request.
12. In January 2014, W was placed with Mr and Mrs A. In May 2014 they applied to adopt her. In July 2014 the father, by now represented by different counsel, applied pursuant to sections 47(5) and 47(7) of the 2002 Act for leave to oppose the making of an adoption order. His application came before District Judge Gamba on 30 July 2014. It was refused. The District Judge's reasons were brief, occupying less than two pages of transcript. He concluded that the father fell at the first hurdle: he had failed to demonstrate the sufficient change in circumstances required by section 47(7). The father's response was two-fold: first, he sought to renew his challenge to the orders District Judge Gamba had made on 19 September 2013; secondly, he sought to appeal against District Judge Gamba's order of 30 July 2014. Both applications came before His Honour Judge Farquhar on 12 November 2014. The first was refused; the second succeeded, the judge adjourning the re-hearing of the father's application to himself. Judge Farquhar's reasons are set out in a detailed judgment of which I have seen the transcript. Given subsequent events, there is no need for me to explore his reasoning.
13. The re-hearing of the father's application for leave to oppose the making of an adoption order took place before Judge Farquhar on 19 December 2014. For the reasons set out in a very careful judgment, of which again I have the transcript, Judge Farquhar gave the father leave to oppose. He analysed the matter in some detail. I need not go into the detail here, but draw attention to what Judge Farquhar said in a striking passage in paragraph 32:
"Are his prospects of success more than fanciful? As I say, I have never seen a case where a father is looking after three children or a birth parent is looking after three children … where the changes are so positive. It seems to me if leave were not to be granted in this case that it would be very difficult for any parent ever to be granted leave. He is looking after the three children fairly well. There are excellent reports from the school. He has been able to hold down his job. Of course it is only a mid-day supervisor but it does assist him, and for the most part it is accepted that things are going reasonably well."
14. In the meantime, on 3 December 2014, the father had filed in the Court of Appeal his application for permission to appeal against the other part of Judge Farquhar's order of 12 November 2014. That application was refused on the papers by King LJ on 28 January 2015 but on renewed oral application was granted by McFarlane LJ on 18 March 2015. The appeal came on before the full court (McFarlane LJ, Gloster LJ and Sir Robin Jacob) on 6 May 2015. The father's appeal was allowed, the reasons being subsequently set out in a judgment handed down on 11 June 2015: Re H (Children) (Application to Extend Time: Merits of Proposed Appeal)  EWCA Civ 583,  1 WLR 5085,  1 FLR 952. The care and placement orders in respect of W were set aside. The local authority's applications were remitted for hearing by Russell J, before whom the hearing of Mr and Mrs A's application for adoption had already been listed.
15. By the time the case reached the Court of Appeal, the local authority's stance had changed markedly. At the hearing before Judge Farquhar on 12 November 2014, it opposed the father's attempt to appeal root and branch. Before the Court of Appeal, it conceded that the appeal would succeed if permission to appeal were granted.
16. It is important to understand precisely why the Court of Appeal allowed the appeal. Put shortly, it was because of the inadequacy of District Judge Gamba's analysis and reasoning. McFarlane LJ first summarised the submissions made by Miss Kate Branigan QC on behalf of the father (para 22):
"Miss Branigan submits that the three sentence evaluation provided by the district judge in no manner complies with the form of analysis that is now required. Further, she points to the language used by the district judge to submit that even the factors set out in the judgment fail to establish sound findings relating to W's welfare which indicate circumstances making it 'necessary' that her Art 8 European Convention right to family life should be interfered with to such a radical extent. She submits for the district judge simply to 'feel' that the father has 'further work to do in relation to his own situation' and to 'feel' that the risk to W of returning to the father's care is too great is insufficient reasoning."
He then set out (para 24) an extract from the skeleton argument of Mr Andrew Bagchi QC on behalf of the local authority:
"It is accepted by the local authority that these few lines do not meet the standards of judicial analysis identified as necessary in the sequence of decisions beginning with Re B  UKSC 33 and Re B-S or, frankly, those decisions which predated them (for example Re B (Appeal: Lack of Reasons)  2 FLR 1035)."
McFarlane LJ concluded (para 25):
"I consider that the local authority's concession is very well made and is one which accurately describes the view that must be taken of DJ Gamba's judgment with respect to W. As Mr Bagchi states, the district judge's judgment on this point would not have been accepted as an adequate welfare analysis even before the summer of 2013 and the advent of the Re B-S cases … I too am clear that the father's underlying appeal, if he were permitted to proceed with it, against the district judge's determination, must succeed."
17. It was necessary, of course, for the Court of Appeal to explain why Judge Farquhar's rejection of the father's appeal from the order of District Judge Gamba was flawed. McFarlane LJ said this (para 44):
"I consider that His Honour Judge Farquhar fell into error in two respects. He underestimated the underlying merits of the father's appeal, considering that the new grounds of appeal were merely arguable when, as I have indicated, they were in truth unanswerable. That flawed analysis caused him to attribute no real weight to the underlying merits in his relief from sanction analysis … On that ground alone, I would, therefore allow the appeal."
18. Gloster LJ and Sir Robin Jacob agreed.
19. It is clear that the Court of Appeal expressed no views as to the underlying merits of the local authority's case as it had been deployed before District Judge Gamba. McFarlane LJ concluded with this observation (para 45):
"The fact that W's welfare is to be re-investigated at a full hearing before a High Court judge this week indicates to my mind that it is entirely right that this court should now set aside the district judge's welfare determination with respect to W and the consequent full care order and placement for adoption orders that he went on to make so that that erroneous determination and the orders that flowed from it can have no bearing on the unenviable task that Russell J now has to undertake in determining where the best interests of this young child may lie."
20. The hearing before Russell J occupied five days starting on 18 May 2015. Her judgment was handed down on 22 July 2015: Re W (Adoption Application: Reunification with Family of Origin)  EWHC 2039 (Fam),  2 FLR 768. Russell J heard evidence from two experts, Dr Hessell Willemsen, a clinical psychologist, and Mr Mark Hatter, an independent social worker. She also had evidence from two social workers, about which she was scathing (para 50):
"To describe the social workers' written and oral evidence as merely grudging when it comes to the care and security the father has given his children is too generous; Ms Wilkinson was certainly both grudging and defensive when giving oral evidence; their unprofessional attempts at case building are reprehensible. There is no evidence that they have moved on from the social work assessment carried out in October 2012 by the then social worker Ms Hendry who was criticised by the district judge."
21. Russell J was even more scathing about the guardian Mr Madge (paras 53-57), including this:
"54 The lack of any real child-centred analysis within these proceedings is inexcusable …
55 … I found his analysis lacking both depth and balance, bereft of objectivity and of little or no assistance."
22. The local authority's position by the end of the hearing (para 67) was that it did not seek any public law order, so the decision for Russell J was between a child arrangements order in favour of the father or an adoption order in favour of Mr and Mrs A. Her decision (paras 87-88) was in favour of W being reunited with her birth family.
23. Mr and Mrs A appealed. The appeal was heard on 22 October 2015 by McFarlane and Underhill LJJ and Dame Janet Smith. Their judgment allowing the appeal was handed down on 11 December 2015: Re H (A Child) (Appeal)  EWCA Civ 1284,  2 FLR 1173. McFarlane LJ explained why (para 101):
"… the proceedings before Russell J were indeed sufficiently flawed so as to render the outcome unsafe, with the result that the judge's order must be set aside and the welfare issue must now be determined by a different judge."
He went on (paras 102-103):
"102 … the judge was wrong in her analysis of the Court of Appeal decision, which did no more than set aside the district judge's orders on the basis that he had failed to undertake any acceptable analysis. This court did not hold that the district judge's welfare decision was 'wrong' or engage in any analysis of what, if any, orders would or should have been made in September 2013. The outcome of that first Court of Appeal hearing was no more than that which had been sought by the father's junior counsel, namely the removal of the district judge's orders so that they could not be taken as resulting from a valid welfare evaluation at that time.
103 Russell J's erroneous understanding of the first appeal had, in my view, an impact upon her conduct of the hearing, upon the understanding of Dr Willemsen (and in consequence Mr Hatter) and upon her ultimate evaluation of W's future welfare."
24. Given that Dr Willemsen also gave evidence before me (see below), it is important to see how (paras 105-106) McFarlane LJ elaborated this last point:
"105 … Dr Willemsen was allowed to gain an understanding of the significance of the Court of Appeal decision which was erroneous and substantially adrift from the true position. That this occurred may, in part, be explained by the fact that, as I have held, the judge herself had formed a similarly erroneous view. It is clear that Dr Willemsen understood that the Court of Appeal had held that W should not have been placed for adoption and this understanding had a major impact upon his overall analysis; indeed it caused him to change his recommendation to the court. What his recommendation would have been if he had been given a careful, comprehensive and accurate account of the Court of Appeal decision, we do not know, but I am afraid that I regard the errors that led to this key expert being given a wrong account of this, to him, important matter fundamentally compromised the court's ability to rely upon his revised recommendation. This error, and Dr Willemsen's changed opinion, in turn had a consequential impact upon the opinion of Mr Hatter and, ultimately, the guardian.
106 The conclusion expressed in the previous paragraph goes to the root of the case. The expert changed his opinion, which led to a similar change in those who relied upon him and the judge relied upon the view of all three of these professionals in forming her own evaluation of W's future welfare needs. The fault-line at this point is sufficiently serious as to make the judge's ultimate determination unreliable."
25. In the final paragraph of his judgment, McFarlane LJ said this (para 109):
"I am driven to the conclusion that both the hearing itself and parts of the judge's analysis were flawed to such an extent that the outcome cannot safely be relied upon … In so holding, I should stress, I am in no manner asserting that the outcome selected by the judge was either right or wrong."
26. Underhill LJ and Dame Janet Smith agreed.
27. The Court of Appeal's order giving effect to that judgment was sealed on 19 January 2016. On 22 February 2016 the father sought permission from the Supreme Court to appeal. The application was dismissed by the Supreme Court on 17 March 2016.
28. In the meantime, on 23 February 2016, I had given directions in relation to the re-hearing. As the order recited, I indicated that I was not prepared to make any order for interim contact in the absence of expert evidence. Mr Madge's position within the proceedings having, as the order recorded, "become untenable", I removed him as children's guardian and appointed Steve Diver as the new children's guardian for W. I made a further directions order on 27 April 2016 with a view to the final hearing which I fixed for 5 September 2016 (the first day being a reading day).
29. In these circumstances, the task before me is clear. I have to re-hear the case afresh, coming to my own decision on the evidence I have heard and evaluating matters as they stand today (that is, as at September 2016). That being so, I need not spend any time analysing why District Judge Gamba and Russell J came to the conclusions they did. Indeed, given the reasons why the Court of Appeal allowed the appeals against both their decisions it would be wholly inappropriate and potentially dangerous to do so. Nor is there any need for me to rehearse any of the evidence given at the earlier hearings except insofar as it was probed before me in cross-examination.
The local authority's failings
30. There is, however, one aspect of the proceedings before District Judge Gamba that I cannot pass over in silence.
31. The local authority filed an 'Interim Threshold Document' on 31 December 2012. It was, I regret to have to say, both in form and in substance a most unsatisfactory document, exhibiting too many of the vices to which I drew attention in Re A (Application for Care and Placement Orders: Local Authority Failings)  EWFC 11,  1 FLR 1 (approved by the Court of Appeal in Re J (A Child)  EWCA Civ 222) and failing to meet the standards previously spelt out by Black LJ in Re P (Care Proceedings: Balancing Exercise)  EWCA Civ 963,  1 FLR 824.
32. The 'Interim Threshold Document' contained 36 numbered paragraphs. The first two were the conventional preamble. Of the remainder, and ignoring certain paragraphs where the assertion was, in substance, of an admission by one or other of the parents, paragraphs 4, 9-12, 14, 21, 23, 24, 26, 27, 29 and 31 were all framed in the language of "report" or "referral" – A reported to B, A informed B, or a referral was received by B from A – a form of pleading which, as I explained in Re A, para 10, is wrong and should never be used.
33. The only paragraph which referred to W by name and contained allegations against the father was paragraph 13, which read as follows:
"On 2nd December 2012 [the father] took baby [W] to hospital after reporting that she had rolled off of the sofa and hit her head whilst in his care. [W] was a 4 week old pre-mobile baby."
Two aspects of this require attention. First, there was no assertion that W had actually suffered harm as a result of what was alleged to have happened. Secondly, and much more significant for present purposes, the 'allegation' in paragraph 13 was left wholly unclear and, as it were, 'hanging in the air'. The implication in the second sentence of paragraph 13 would seem to be that, in some way, W was 'helped' off the sofa, the insinuation being that it was the father. This is simply not an acceptable form of pleading. Not least in a care case where, as here, the stakes were so high – the local authority was seeking to have W adopted – the applicant must set out an allegation such as this in clear language, making plain just what the allegation is. Here, the local authority was willing to wound, yet afraid to strike.
34. The father's response to the local authority's 'Interim Threshold Document' was dated 4 February 2013. In relation to paragraph 13 the father said this:
"W fell off the sofa accidently, I left her for no more than/less than a minute when I and [X] went into the kitchen believing that I had left her in a safe manner on the sofa. I do not know how she fell but I can only assume that she had moved her arms or possibly pushed with her legs which led to her falling from the sofa. I immediately took her to the hospital to make certain that she was okay and at no point were there any concerns or unusual observations raised by the medical professionals who dealt with her. I informed the Social Worker's manager of this incident the following day (a Monday) and W's health visitor also came to the family home and was satisfied with her condition. I take full responsibility for this incident and realise that I was wrong to have left W unsupervised in that manner. I still feel a lot of regret over the accident and I am still very much relieved that she was not seriously hurt."
35. The local authority's 'Final Proposed Threshold' differed little from the original 'Interim Threshold Document', though some paragraphs were slightly expanded. So far as concerned W, paragraph 12 (previously 13) now read as follows:
"On 2nd December 2012 [the father] took baby [W] to hospital after reporting that she had rolled off of the sofa and hit her head whilst in his care. [W] was a 4 week old pre-mobile baby. [The father] states he left W for no more than a minute and she fell off the sofa accidentally. [He] states he does not know how W fell but can only assume she moved her arms or pushed with her legs."
Just what, if anything, was the local authority actually alleging?
36. The local authority's 'case summary' for the hearing before District Judge Gamba prepared by counsel said remarkably little about threshold. For present purposes it is to be noted that W's fall from the sofa was said to be "unexplained." Counsel's 'written submissions' for the local authority went into somewhat greater detail about threshold. It was asserted that "threshold is overwhelmingly met." Again, it was said that W's fall from the sofa was "unexplained" and although, in a section entitled 'Is Threshold met?', the local authority sought findings against the father in relation to certain other matters, including a bruise allegedly inflicted on Z's ear by the father, nothing was said about paragraph 12 (13). The written closing submissions on behalf of the father conceded that "Each parent has made sufficient concessions for the court to find that the threshold criteria are met." (I record for completeness the father's evidence before me that he had not seen this document in advance nor given instructions to concede threshold.) Consistently with the way in which the local authority was putting its case, the father disputed the 'ear' allegation but said nothing about the 'sofa' incident.
37. In his judgment, District Judge Gamba dealt with 'threshold' very shortly. He noted that the mother "accepts the criteria are met" and that the father had made concessions about the "majority" of the matters alleged, though not, I make clear, that the father had conceded threshold. Having noted that the father did not accept the allegation in relation to the 'ear' incident, he said this:
"… there is no reliable medical evidence and one sees that [Z]'s accounts do in fact differ on occasions. I am unable to find evidence to support this allegation."
He said nothing about the 'sofa' incident.
38. The local authority's cavalier approach to the facts and disregard for precision is worryingly evident from what happened after District Judge Gamba had given judgment. The local authority's care plans for the children were dated 20 May 2013. Paragraph 12 of the plan for Z stated that "[Z] is likely to have been victim of physical abuse from [the father]." Paragraph 9 of W's care plan said this:
"While in the care of [the father, W] reportedly fell off the sofa despite being pre mobile. This and injury to [Z]'s ear increased concerns of physical abuse being perpetrated by [the father] on the children."
39. Following receipt of District Judge Gamba's judgment, revised Final Care Plans dated 19 September 2013 were prepared for the three older children, though not for W. Inexplicably, and quite disgracefully, given what District Judge Gamba had found and, more particularly, not found, paragraph 10 of the revised Final Care Plan for Z now said:
"The Local Authority considers [the father] is likely to have caused physical harm to [Z] and [W]."
This canard, gilded in the case of the other two children with the observation that "the Local Authority cannot rule out that [Y] / [X] may have also been harmed by [the father] when he was under stress", was repeated in the revised Final Care Plans for both X and Y. How a careful and conscientious local authority could have acted in this way is beyond me.
40. The point does not in fact end there. In a statement dated 14 April 2015 put before Russell J, Keli Reains, the social worker responsible for W, asserted that W was placed in foster care "after sustaining an injury whilst in her birth father's care", this being, as the statement makes clear, a reference to the 'sofa' incident. A similar insinuation was made by the practice manager, Gail Alsop, in a statement also dated 14 April 2015. The same misunderstanding as to what District Judge Gamba had and had not found is also to be found affecting – some might say infecting – both the report of Dr Sarah Helps dated 14 July 2016 (see below), where she recorded that "W sustained a non-accidental injury while in the care of her father which led to her being removed to a foster placement" and Mr and Mrs A's understanding (see, for example, Dr Willemsen's account, in his report dated 25 July 2016, of what they had said to him on 24 June 2016).
41. I draw attention to what the Court of Appeal has said about the imperative need for precision in such matters: see Re S (Children, W and T)  EWCA Civ 638,  1 FLR 1072, paras 19, 73-74. I did not mince my words, saying (para 74) that,
"there is, even now, no authentic, definitive, record of precisely what findings the judge made. This is simply shocking."
In the present case, the absence of any such record drove the parties to the expedient of preparing a document, dated 30 August 2016, entitled 'Threshold as at 10 December 2012 (agreed by the mother and the father for the purposes of the hearing commencing on 5 September 2016).' It is no criticism of anyone that this document did not withstand critical scrutiny when the events of 2013 were subjected to further analysis in front of me. As Mr Bagchi was driven to concede in his closing submissions, "there is still confusion as to the precise basis upon which DJ Gamba found the threshold criteria to be established in relation to all the children." I make the point because, in my judgment, it would neither be safe nor fair to hold either the father or the mother to the terms of this flawed document.
42. There is one other aspect of this to which I must draw attention. In February 2015 the local authority made certain disclosures to the father's employer. The disclosure was inaccurate and misleading. It led to him losing his job. The disclosure took place in circumstances which involved significant breach of the principles that the Court of Appeal had laid down in April 2011 in H and L v A City Council  EWCA Civ 403, (2011) 14 CCL Rep 381,  BLGR 590,  UKHRR 599, paras 49-52, 62. The local authority's failure to comply with the law was shocking. The local authority has apologised and said that it did not intend the father to lose his job. This no doubt is true but quite beside the point. What happened was the all too foreseeable, indeed probably the little short of inevitable, consequence of the local authority's actions. And, as the local authority well knew, this was a father who was bringing up three children.
The final hearing
43. The final hearing before me began on 6 September 2016.
44. Mr Frank Feehan QC and Ms Madeleine Reardon appeared for Mr and Mrs A; Mr Andrew Bagchi QC and Mr Martin Downs for the local authority; Ms Janet Bazley QC and Mr Chris Barnes for W's father; Ms Catherine Jenkins for W's mother; Ms Deirdre Fottrell QC and Ms Louise MacLynn for W's eldest sibling, X; and Mr Jonathan Bennett for W.
45. I heard oral evidence from, in this order, Keli Reains, a senior social worker (final statements dated 23 March 2016, 31 May 2016 and 22 August 2016), Dr Blincow (reports dated 18 July 2016 and 15 August 2016; transcript of evidence on 7 September 2016), Mark Hatter (reports dated 24 March 2015 and 18 July 2016; transcript of evidence on 8 September 2016), Dr Willemsen (reports dated 8 April 2015, 25 July 2016 and 15 August 2016; transcript of evidence on 9 September 2016), Dr Helps (reports dated 14 July 2016 and 3 August 2016; transcript of evidence on 12 September 2016) and Jennifer Gander, a senior social worker (final statements dated 24 March 2016, 25 May 2016 and 22 August 2016). There was also a transcript of a meeting between the four experts on 29 July 2016. I then heard evidence from Mrs A, followed by Mr A (final joint statements dated 16 June 2016 and 23 August 2016) and the father (final statements dated 31 May 2016 and 22 August 2016). Finally, I heard oral evidence from the children's guardian, Mr Diver (report dated 31 August 2016; transcript of evidence on 15 September 2016). In addition, I had final witness statements from the mother, one undated the other dated 30 August 2016 and from X's solicitor dated 30 August 2016. The evidence finished on 15 September 2016. As will be noted, there are official transcripts, which I directed, of the evidence of all the witnesses with the exception of Ms Reains and Ms Gander. The parties submitted their final written submissions on 19 September 2016 and I heard oral submissions the following day. I reserved judgment.
46. Before proceeding any further, I need to deal with the local authority's application for leave to withdraw. However, before addressing that issue I must say something about the father and the mother.
47. In their final submissions, Ms Bazley and Ms Jenkins drew pictures of the father and the mother which accord entirely with my reading of all the evidence, both written and oral, and coincide with my impressions of the father and mother having watched them very closely throughout the hearing, including when the father was giving evidence.
The father and the mother
48. The father comes over as an impressive individual and a highly capable and emotionally attuned parent. He is intelligent, articulate and insightful. He has carefully considered the material before the court and listened attentively to the evidence given during the hearing. He has proved to be resilient, resourceful and adaptable. He has risen to the challenge, parenting his children whilst facing a significant number of obstacles, not least the loss of W, the end of his relationship with the mother of his children, the highly negative attitude of the local authority and the near continuous proceedings since the end of 2012 – all matters of which he spoke movingly. He has exceeded the expectations of the professionals.
49. The father had an extremely difficult childhood, the adverse effects of which he has successfully overcome, engaging counselling services at his own expense despite his straitened financial circumstances.
50. He has been able to provide reparative parenting to his children, ensuring, through the quality of his day-to-day parenting and his attunement, that they are each securely attached to him. He is sensitive to the needs of each of his children and is capable of dividing his time successfully to ensure their individual needs are met. He has also managed to ensure that they have been insulated, as far as possible, from these proceedings. He has successfully engaged with therapeutic help to assist with his relationship with X, thus demonstrating his ability to work in partnership with professionals supporting him. He has been able to develop a positive and supportive working relationship with Ms Gander the social worker.
51. Importantly, the father is, I am convinced, intently focused upon W's welfare, now and throughout her whole life, while being impressively realistic about the challenge which a transition for W would present and the need for him to be prepared and aware of the range of potential responses he might encounter.
52. To anticipate one point which I deal with below, I reject Dr Helps' assessment of the father as not capable of 'mentalising'. In my judgment, not least having read and heard his evidence, he is clearly capable of 'mentalising'. And this, as Ms Bazley points out, is likely to assist him in meeting W's needs in the process of transition and in the future were she to be returned to him.
53. Ms Jenkins in her final submissions drew a similar picture of the father which again accords with my impression of him:
"… he is an exceptional father who has managed, despite a very difficult childhood, to overcome those difficulties and provides careful, patient reparative parenting to his children. The lack of anger or resentment for all that has happened to him and to his family is a mark of the kind of man he is. It is the mother's case that he has exactly the skill set and mindfulness that W will need in order to settle into her natural family and form long lasting familial secure attachments. He is acutely aware of the difficulties that W will face and has thought about how to provide her with support and space. Significantly he is also able to work openly and willingly with the local authority and other professionals to ensure that the support package will provide the most effective care for W. His evidence was deeply moving and showed the degree of love and longing that the whole family has in order to ensure that W's rehabilitation plan will work. He is not idealistic but fully recognises the distress and difficulty he is likely to have to deal with.
It is significant that the father has managed to create a favourable impression as to his parenting capacity with every court he has been in front of. It is hard to imagine any more competent parent who could take on the task of reuniting his family."
54. The mother's position is completely supportive of the father's application. Although she did not give oral evidence, she has conducted herself throughout the proceedings, and the final hearing, as Ms Bazley put it, in a dignified manner. She is intelligent, attuned and a very important part of her children's lives. X, Y and Z all benefit from positive relationships with their mother. It is apparent that the parents have been and are capable of very successfully managing the co-parenting of their children.
55. I accept that the mother is entirely realistic about the priority that must be given to ensuring that W's relationship with her father is given paramount importance in any transition. She will be able to provide a level of practical support to the father which is likely to be valuable. She is increasingly insightful in respect of her own mental health. This, coupled with the father's careful approach, has ensured that X Y and Z have been protected from difficulties they might otherwise have experienced. They have, it seems, an entirely age-appropriate understanding of their mother's difficulties.
The local authority's application for leave to withdraw
56. Although the care and placement orders in relation to W have been set aside, the local authority's application for public law orders remains extant though dormant. The local authority seeks leave to withdraw its application. No-one opposes that, and in my judgment it is plainly appropriate to give the local authority leave to withdraw. The continuation of the public law proceedings serves no useful purpose and is of no solid advantage to W: see London Borough of Southwark v B  2 FLR 559, 573. Indeed, given what I have said in paragraphs 48-53 above, there is not the slightest prospect of the court now making public law orders against the father. In the circumstances it is unthinkable that the local authority should be compelled to proceed. The court should face reality and bring the public law proceedings formally to an end.
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?
58. This case is, on any view, most unusual, and there have been certain disagreements between counsel as to the proper principles to be applied. I need, therefore, to deal with the law in more detail than would usually be either necessary or appropriate.
59. I start with section 1 of the Adoption and Children Act 2002, the material provisions of which are as follows:
"(1) Subsections (2)-(4) apply whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the
child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others) –
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, 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."
60. Against that general background, the key principles which I have to apply are to be found in four authorities, the decisions of the Strasbourg court in in R and H v United Kingdom (Application No 35348/06) (2011) 54 EHRR 28,  2 FLR 1236, and YC v United Kingdom (Application No 4547/10) (2012) 55 EHRR33,  2 FLR 332, the decision of the Supreme Court, applying the Strasbourg jurisprudence, in In re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911,  2 FLR 1075, and the decision of the Court of Appeal in Re W (A Child)  EWCA Civ 793.
61. Even though there is no longer any placement order in force, and the local authority is no longer seeking any public law orders, the parties are, correctly, agreed that these are the principles to be applied: compare Re S and T (Intercountry Adoption: USA)  EWHC 1753 (Fam) ,  1 FLR 1011, and contrast Re P (Step-parent Adoption)  EWCA Civ 1174,  1 FLR 1327, and In re JL and AO (Babies Relinquished for Adoption)  EWHC 440 (Fam),  4 WLR 40.
62. I start with R and H, para 81 (citations omitted):
"In assessing whether the freeing order was a disproportionate interference with the applicants' Article 8 rights, the Court must consider whether, in the light of the case as a whole, the reasons adduced to justify this measure were relevant and sufficient for the purposes of paragraph 2 of Article 8 of the Convention … The court would also recall that, while national authorities enjoy a wide margin of appreciation in deciding whether a child should be taken into care, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of access, and as regards any legal safeguards designed to secure the effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between a young child and one or both parents would be effectively curtailed. For these reasons, measures which deprive biological parents of the parental responsibilities and authorise adoption should only be applied in exceptional circumstances and can only be justified if they are motivated by an overriding requirement pertaining to the child's best interests."
63. I turn to YC. The two key paragraphs (134, 135, citations omitted) require to be set out in full:
"134 The court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family has proved particularly unfit; and second, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to "rebuild" the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However, where the maintenance of family ties would harm the child's health and development, a parent is not entitled under Art 8 to insist that such ties be maintained.
135 The identification of the child's best interests and the assessment of the overall proportionality of any given measure will require courts to weigh a number of factors in the balance. The court has not previously set out an exhaustive list of such factors, which may vary depending on the circumstances of the case in question. However, it observes that the considerations listed in s 1 of the 2002 Act broadly reflect the various elements inherent in assessing the necessity under Art 8 of a measure placing a child for adoption. In particular, it considers that in seeking to identify the best interests of a child and in assessing the necessity of any proposed measure in the context of placement proceedings, the domestic court must demonstrate that it has had regard to, inter alia, the age, maturity and ascertained wishes of the child, the likely effect on the child of ceasing to be a member of his original family and the relationship the child has with relatives."
64. The judgments in In re B are long. I start with the anthology set out in In re B-S (Children) (Adoption Order: Leave to Oppose)  EWCA Civ 1146,  1 WLR 563,  1 FLR 1035, para 22:
"The language used in Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215."
65. For present purposes it suffices to go first to the judgment of Lord Wilson of Culworth and then to the judgment of Baroness Hale of Richmond. Having set out what the Strasbourg court had said in YC, para 134, Lord Wilson commented (para 33) that:
"Although in that paragraph it did not in terms refer to proportionality, the court had prefaced it with a reference to the need to examine whether the reasons adduced to justify the measures were relevant and sufficient, in other words whether they were proportionate to them."
66. He continued (para 34):
"In my view it is important not to take any one particular sentence out of its context in the whole of para 134 of the YC case: for each of its propositions is interwoven with the others. But the paragraph well demonstrates the high degree of justification which article 8 demands of a determination that a child should be adopted or placed in care with a view to adoption. Yet, while in every such case the trial judge should, as Judge Cryan expressly did, consider the proportionality of adoption to the identified risks, he is likely to find that domestic law runs broadly in parallel with the demands of article 8. Thus domestic law makes clear that:
(a) it is not enough that it would be better for the child to be adopted than to live with his natural family (In re S-B (Children) (Care Proceedings: Standard of Proof)  UKSC 17,  1 AC 678, para 7); and
(b) a parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (section 52(1)(b) of the Adoption and Children Act 2002); there is therefore no point in making a care order with a view to adoption unless there are good grounds for considering that this statutory test will be satisfied.
The same thread therefore runs through both domestic law and Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word "requires" in section 52(1)(b) "was plainly chosen as best conveying ... the essence of the Strasbourg jurisprudence" (Re P (Placement Orders: Parental Consent)  EWCA Civ 535,  2 FLR 625, para 125)."
67. Baroness Hale said this (para 195):
"It is well-established in the case law of the European Court of Human Rights that "the mutual enjoyment by parent and child of each other's company constitutes a fundamental element of family life, and domestic measures hindering such enjoyment amount to an interference with the right protected by article 8 of the Convention" (Johansen v Norway (1996) 23 EHRR 33, among many others). However, such measures may be justified if aimed at protecting the "health or morals" and "the rights and freedoms" of children. But they must also be "necessary in a democratic society". The court has recently summed up the principles in the context of an order freeing a child for adoption, in R and H v United Kingdom (2011) 54 EHRR 28,  2 FLR 1236 at para 81."
She then set out para 81 in full.
68. At para 198, she said this:
"Nevertheless, it is quite clear that the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do. In many cases, and particularly where the feared harm has not yet materialised and may never do so, it will be necessary to explore and attempt alternative solutions. As was said in Re C and B  1 FLR 611, at para 34,
"Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.""
69. She returned to the point at para 215:
"We all agree that an order compulsorily severing the ties between a child and her parents can only be made if "justified by an overriding requirement pertaining to the child's best interests". In other words, the test is one of necessity. Nothing else will do."
70. I end with Re W (A Child), where the main judgment was given by McFarlane LJ. The primary issue in that case was identified by McFarlane LJ as follows (para 1):
"The approach to be taken in determining a child's long-term welfare once the child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified."
71. So far as material for present purposes, McFarlane LJ's analysis begins with this (paras 64-66):
"64 … Placing a child for adoption is an act of altogether higher significance than arranging a foster home under the umbrella of a care order. Foster carers will seldom expect permanence and, indeed, will have been trained so as to be able to support the child moving on if required to do so in time. Whilst undoubtedly foster carers and fostered children may achieve a fondness for each other, the establishment of a firm and secure attachment is not one of the primary aims of the placement, in contrast with adoption. One of the principal benefits of adoption is to achieve a secure, stable, reliable, permanent, lifetime placement for the child in the adoptive family as the adoptive son or daughter of the adopters.
65 Where an adoptive placement has been made and significant time has passed so that it can be seen that the looked for level of secure, stable and robust attachment has been achieved, the welfare balance to be struck where a natural family claimant comes forward at this late stage to offer their young relative a home must inevitably reflect these changed circumstances. At the earlier time when a placement order is being considered, that side of the balance, which must now accommodate the weight to be afforded to the child's place within the adoptive family, simply does not exist. The balance at the placement stage, therefore, naturally tilts towards a family placement where the relatives have been assessed, as these grandparents have, as being able to provide good, long term care for a child within their family. At the placement order stage, the other side of the scales (against a family placement) are likely to be populated by factors such as the risk of harm and the need to protect the child. The question of harm to the child occurring as a result of leaving their current placement will normally not arise as a factor at the pre-placement stage given that such a child is likely to be in temporary foster care and will have to move in any event either on to an adoptive placement or back to the natural family.
66 In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it …"
72. He then turned to consider, and set out in extenso (para 67), his own judgment in Re M'P-P  EWCA Civ 584, paras 47-51. For present purposes it suffices to quote only a little (paras 50-51):
"50 In the context of 'attachment theory', the wording of ACA 2002, s 1(4)(f), which places emphasis upon the 'value' of a 'relationship' that the child may have with a relevant person, is particularly important. The circumstances that may contribute to what amounts to a child's 'status quo' can include a whole range of factors, many of which will be practically based, but within that range the significance for the child of any particular relationship is likely to be a highly salient factor. The focus within CA 1989, s 1(3)(c) is upon the 'likely effect on' the child of any change. The focus in ACA 2002, s 1(4)(f)(i) is upon 'the value to the child' of any particular relationship continuing.
51 It is not my purpose in this judgment to express a view upon the relative importance of attachment/status quo arguments as against those relating to a placement in the family. Each case must necessarily turn on its own facts and the weight to be attached to any factor in any case will inevitably be determined by the underlying evidence …"
73. Turning to what Baroness Hale had said in Re B, para 215, and specifically the phrase "nothing else will do," McFarlane LJ said this (paras 68-69):
"68 … The phrase is meaningless, and potentially dangerous, if it is applied as some freestanding, shortcut test divorced from, or even in place of, an overall evaluation of the child's welfare. Used properly, as Baroness Hale explained, the phrase "nothing else will do" is no more, nor no less, than a useful distillation of the proportionality and necessity test as embodied in the ECHR and reflected in the need to afford paramount consideration to the welfare of the child throughout her lifetime (ACA 2002 s 1). The phrase "nothing else will do" is not some sort of hyperlink providing a direct route to the outcome of a case so as to bypass the need to undertake a full, comprehensive welfare evaluation of all of the relevant pros and cons …
69 Once the comprehensive, full welfare analysis has been undertaken of the pros and cons it is then, and only then, that the overall proportionality of any plan for adoption falls to be evaluated and the phrase "nothing else will do" can properly be deployed. If the ultimate outcome of the case is to favour placement for adoption or the making of an adoption order it is that outcome that falls to be evaluated against the yardstick of necessity, proportionality and "nothing else will do."
74. McFarlane LJ then turned to consider the question of the natural family's rights. He summarised the correct approach in homely but compelling terms (paras 70-71):
"70 … Putting the correct position in lay terms, the existence of a viable home with the grandparents should make that option "a runner" but should not automatically make it "a winner" in the absence of full consideration of any other factor that is relevant to her welfare; the error of the ISW and the Guardian appears to have been to hold that "if a family placement is a 'runner', then it has to be regarded as a 'winner'.
71 The repeated reference to a 'right' for a child to be brought up by his or her natural family, or the assumption that there is a presumption to that effect, needs to be firmly and clearly laid to rest. No such 'right' or presumption exists. The only 'right' is for the arrangements for the child to be determined by affording paramount consideration to her welfare throughout her life (in an adoption case) in a manner which is proportionate and compatible with the need to respect any ECHR Art 8 rights which are engaged. In Re H (A Child)  EWCA Civ 1284 [the appeal from Russell J in the present proceedings] this court clearly stated that there is no presumption in favour of parents or the natural family in public law adoption cases."
75. He concluded as follows (para 73):
"It may be that some confusion leading to the idea of there being a natural family presumption has arisen from the use of the phrase 'nothing else will do'. But that phrase does not establish a presumption or right in favour of the natural family; what it does do, most importantly, is to require the welfare balance for the child to be undertaken, after considering the pros and cons of each of the realistic options, in such a manner that adoption is only chosen as the route for the child if that outcome is necessary to meet the child's welfare needs and it is proportionate to those welfare needs."
76. He spelt out the corollary as follows (para 75):
"… in proceedings at the stage prior to making a placement for adoption order the balance will rightly and necessarily reflect weight being afforded to any viable natural family placement because there is no other existing placement of the child which must be afforded weight on the other side of the scales. Where, as here, time has moved on and such a placement exists, and is indeed the total reality of the child's existence, it cannot be enough to decide the overall welfare issue simply by looking at the existence of the viable family placement and nothing else."
77. There is, if I may say so, nothing in the least novel or surprising in McFarlane LJ's analysis. As a matter of domestic law it has long been quite clear that, in the final analysis and if there is a conflict between them, the child's welfare, which is paramount, takes precedence over the claims and rights of even an unimpeachable parent: J v C  AC 668, In re KD (A Minor) (Ward: Termination of Access)  AC 806,  2 FLR 139, and In re G (Children) (Residence: Same-sex Partner)  UKHL 43,  1 WLR 2305,  2 FLR 629. And this applies as much where the case involves adoption as in any other context. As Arden LJ said in Re C (A Child) v XYZ County Council  EWCA Civ 1206,  1 FLR 1294, para 15, referring to section 1 of the 2002 Act:
"The result is that s1 is child-centred. It is not 'mother-centred'. The emphasis is on the interests of the child and not those of the mother. As the European Court of Human Rights (the Strasbourg court) expressed it in one case, adoption means 'giving a family to a child and not the child to a family' (Fretté v France (Application No 36515/97) (2004) 38 EHRR 21,  2 FLR 9 at ). The interests of the child will include the child's interest in retaining its identity, and this is likely to be important to the child in adulthood. But identity is only one factor in the balance that has to be struck. Section 1 does not privilege the birth family over adoptive parents simply because they are the birth family."
78. There are many illustrations of this principle in the books. J v C is, at one and the same time, the classic formulation and the classic application of the principle. I was also referred by Mr Feehan to some words of Lord Templeman in In re KD where, shortly after the famous and much-quoted passage beginning "The best person to being up a child is the natural parent," he said, referring to the facts of the case (page 812):
"In November 1986 the welfare of K required that he should no longer see [his mother] because at the age of 3 years he could not cope with two competing mothers. By November 1986 K had been integrated into the family life of his foster-parents who had become mother and father to him; the family life of K and [his mother] was lost beyond recall."
79. In YC, para 141, the Strasbourg court said this:
"… once K was placed with a prospective adopter, he began to establish with her new bonds and his interest not to have his de facto family situation changed again became a significant factor to be weighed in the balance against his return to the applicant's care."
80. Mr Feehan referred me to other examples of the same approach in various branches of family law: see Re D (Intractable Contact Dispute: Publicity)  EWHC 727 (Fam),  1 FLR 1226, Webster v Norfolk County Council and the Children (by their Children's Guardian)  EWCA Civ 59,  1 FLR 1378, paras 202-204, and Re C (Adoption Proceedings: Change of Circumstances)  EWCA Civ 431,  2 FLR 1393, para 37. I record this for the sake of completeness; there is no need for me to go through them.
81. Nor is there any need for me to take up time analysing some of the older cases to which I was also referred, such as Re K (A Minor) (Custody)  2 FLR 64 and Re K (A Minor) (Wardship: Adoption)  1 FLR 57. The law, as I have said, is to be found in the four cases I referred to in paragraph 60 above. There is no need to extend the analysis further; indeed, prudence surely suggests it may be unwise to do so.
Clearing the ground
82. Before proceeding any further and addressing the central issues I need to survey the landscape and clear the ground.
Clearing the ground: threshold
83. The consequence of what has happened in this case, culminating in my decision giving the local authority leave to withdraw the public law proceedings, is that the matter is proceeding, in accordance with section 47(2)(c) of the Adoption and Children Act 2002, as what in Re S and T (Intercountry Adoption: USA)  EWHC 1753 (Fam),  1 FLR 1011, para 23, I referred to for convenience as a private law adoption. Ms Bazley nonetheless contends that I need to consider whether 'threshold' is established as at the relevant date (which she says is 10 December 2012) and submits that it is not. She submits that W's placement with Mr and Mrs A was an 'agency placement' and, therefore, that, absent parental consent, an adoption order can be made only following a placement order, so that 'threshold' accordingly has to be established: see section 47(4).
84. I do not, with respect, agree. Proof of threshold is, as she correctly submits, a pre-requisite to the making of a placement order: see section 21(2)(b) of the 2002 Act. But that is beside the point in this case, where, prior to the hearing before me, the care and placement orders had been set aside, so that W's continuing placement with Mr and Mrs A was not by the local authority but by the court exercising its powers in wardship. Hence, the application for an adoption order is now properly pursued under section 47(2). Proof of threshold is not a pre-requisite in such a case. Section 31(2) of the 1989 Act has no application in the case of a private law adoption application under section 47(2) of the 2002 Act. In any event, although she is rightly critical of District Judge Gamba's analysis, threshold, subject only to certain specific matters, was in effect conceded before him. It is, in the circumstances, far too late to be taking the point and in any event, as Mr Bagchi comments, the forensic difficulties in trying the issue some four years later are manifest. The court he submits, and I agree, should not be engaging in mental gymnastics seeking to unpick what is now an historical question of risk which is irrelevant to the only live application.
Clearing the ground: Article 8
85. W's rights under Article 8 are plainly engaged. So are the respective rights under Article 8 of the father and the mother (and, indeed, of X, Y and Z) on one side, for they have not lost those rights, and of Mr and Mrs A on the other side, for it is plain, given the time W has been with them, that they have by now acquired such rights. But none of this really advances matters. The impact of Article 8 is already incorporated as an integral element in the analysis underpinning each of the four key authorities, so a proper application of the principles there set out will necessarily give proper effect to each party's Article 8 rights. Despite any suggestions to the contrary, it is quite clear from the authorities I have referred to that there is in a case such as this no hierarchy of rights under Article 8.
Clearing the ground: unfairness and breach of Article 8
86. Ms Bazley submits that in various respects down the years the local authority has treated the father, and thus also W, unfairly and in such a way as to amount to breaches of Article 8. In addition to the matters to which I have already drawn attention above, she complains in particular, and not without some justification, that the local authority should have responded much more positively than it did to what Judge Farquhar had said in his judgment on 19 December 2014. At that point, she submits, and Ms Fottrell makes the same submission, the local authority should have re-considered its whole stance, and with an open mind. It ought, she suggests, to have galvanised the local authority. As it was the local authority's stance seems not to have changed until very shortly before the hearing in the Court of Appeal on 6 May 2015.
87. Ms Bazley referred me to the decision of the Grand Chamber in K and T v Finland (Application no 25702/94)  2 FLR 707, paras 155, 177-179. The focus of her submissions was on the following passages in particular:
"178 The Grand Chamber, like the Chamber, would first recall the guiding principle whereby a care order should be regarded as a temporary measure, to be discontinued as soon as circumstances permit, and that any measures implementing temporary care should be consistent with the ultimate aim of reuniting the natural parents and the child. The positive duty to take measures to facilitate family reunification as soon as reasonably feasible will begin to weigh on the responsible authorities with progressively increasing force as from the commencement of the period of care, subject always to its being balanced against the duty to consider the best interests of the child.
179 … The minimum to be expected of the authorities is to examine the situation anew from time to time to see whether there has been any improvement in the family's situation. The possibilities of reunification will be progressively diminished and eventually destroyed if the biological parents and the children are not allowed to meet each other at all, or only so rarely that no natural bonding between them is likely to occur."
She also referred me to Görgülü v Germany (Application no 74969/01)  1 FLR 894, para 45:
"… effective respect for family life requires that future relations between parent and child not be determined by the mere passage of time."
In short, she submits that there was a plain breach of the requirement laid down in K and T, para 179.
88. I am far from unsympathetic to the father's complaints. It is quite plain that in a number of respects, indeed in too many respects, he has been treated very badly by the local authority. And I bear very much in mind the deliberately strong language I have used earlier in this judgment to characterise the local authority's conduct. But at the end of the day I do not think I need or should go further than I have. I am not conducting a general inquiry into the local authority's conduct. There is no claim before me for damages or other relief under the Human Rights Act 1998. And, most important of all, even an adverse finding against the local authority and the grant of relief under the 1998 Act would not, of itself, ultimately affect the outcome of the proceedings under the 2002 Act which are before me. The local authority's behaviour is not irrelevant, nor its impact on the father or W. But the fact is that we are where we are. Ultimately, and in the final analysis, this case has to be determined in accordance with the requirements of section 1 of the 2002 Act and the principles laid down in what I have referred to as the four key authorities. The law, both our domestic law and the Strasbourg law, has long recognised that there may be cases where the outcome is determined, to the prejudice of an unimpeachable parent, by the passage of time and consequential change of circumstances, even where this has been brought about by the actions, or lack of action, or the 'fault' of a public authority.
89. As Mr Bagchi correctly submits, to give effect to an 'unfairness' argument offends against the statutory principles and runs the risk of the welfare analysis being skewed and diverted from what must be its paramount focus – W's welfare. Mr Feehan puts the point very pithily: any extra weighting in favour of the father's case because of any unfairness, whether actual or perceived, would be wrong and run the risk of acceding to an argument that two wrongs do make a right. 'Unfairness' in the process is part of W's life history and therefore appropriately part of any 'life-story' work, but that, for present purposes, is as far as it goes.
90. This apart, fairness is relevant, as Mr Feehan correctly submitted, only if and insofar as it has, or may have had, an effect on the evidence put before me at this hearing. And on this point the simple fact, in my judgment, is that the father has not been able to show that any of the unfairness and inaccuracies of which he complains have actually had any impact on the thinking of any of the experts. All the experts made clear that they were working on the basis that the father is a good parent and that X, Y and Z are well cared for. Insofar as Dr Helps had an adverse view as to the father's ability to 'mentalise', I am satisfied that this was based on clinical interviews rather than prejudicial matters in the papers. In relation to her misunderstanding in relation to the 'sofa' incident I am likewise satisfied that it did not distort her analysis or conclusions (see further below).
91. In fairness to the local authority I should make clear that, albeit late in the day, it has formally acknowledged and apologised for the mistakes it has made and is sorry for the distress this has caused the father in particular. In a document dated 7 September 2016, it said this:
"the local authority accepts that:-
(i) it was in error in not ensuring that the actual findings as opposed to the original allegations were removed from the documents about the family;
(ii) with the benefit of hindsight it was in error having too pessimistic a view about [the father's] parenting capacity and willingness to work with professionals;
(iii) the social workers erred by offering opinions as to his psychological make up which they were not qualified to give;
(iv) with the benefit of hindsight, in overall terms [it] misjudged him."
I should also record that, at the end of the hearing, the local authority filed documents setting out how in future such system failures might be avoided.
Clearing the ground: Article 3
92. Mr Feehan suggests that if W were to be returned to the care of her father she would be put in a situation so intolerable as to engage Article 3. Given the applicable principles I have to apply as set out in the four key authorities to which I have referred, to analyse a case such as this in terms of Article 3 is neither necessary nor helpful. In any event I do not accept that the underlying proposition is made out. I therefore say no more about it.
93. Before coming to the crucially important evidence of the experts, I need at this point to say a little more about W and about Mr and Mrs A.
94. I agree with Ms Bazley's and Ms Jenkins's characterisations of W. She is, as Ms Jenkins put it, a normal resilient child without any particular vulnerability or fragility. Ms Bazley in her final submissions made the same point in somewhat greater detail:
"W is a child without any noticeable special needs which would impact on the court's decision. She is noted to be developing entirely normally. Her noted preference from structure could not be said to be beyond the normal range of behaviour a child rising 4 might exhibit.
She is appropriately and securely attached to her prospective adopters. In the view of all experts this secure attachment represents an important protective factor in managing adverse or stressful events such as a move to her father's care. Her age means that W is unlikely to be able to anticipate what is to happen to her and she would not, therefore, have the same anticipatory feelings as the adults around her."
No-one has suggested the contrary. I agree.
Mr and Mrs A
95. I have had differing submissions about Mr and Mrs A.
96. Mr Bagchi submitted that, although she did not give evidence for very long, I could not fail to be impressed with Mrs A, who gave an emotional and moving account of how her and Mr A's relationship with W has grown to embody the strong and secure attachment so clearly described by the experts. She is, he said, plainly deeply devoted to W and the strength of her commitment to W is palpable. He invited me to accept, as a genuine expression of their intent, what he called the coherent and convincing account of the development of their thinking in relation to post-adoption contact. He suggested I may have been struck by how difficult it is likely to be for Mr and Mrs A to be involved in transitional arrangements should W be removed from their care.
97. Mr Bennett's submissions on behalf of the guardian were to similar effect.
"As Mr Diver said in his oral evidence, no one could help being considerably moved by the oral evidence of [the father]. The same could be said about the evidence of Mr and Mrs A. Both are, as all have accepted, placed in an extremely difficult situation because of what has happened in this case.
… Mr Diver's assessment of Mr and Mrs A are that they are willing now to work towards direct contact happening sooner rather than later. This is something which Mrs A said that Mr Diver had discussed with them in detail. He believes that this will significantly reduce the risk of difficulties in W's adolescence in the way which the experts accepted it would."
98. Perhaps unsurprisingly, Ms Bazley and Ms Jenkins adopt a different stance. I start with Ms Bazley. She articulated a number of concerns: what she said were their skewed perception of the process and of the father's conduct (reflecting what she suggested was hyper-sensitivity on their part); their belief that W is with them for her safety; their inability to see anything positive in the father; their anger and upset that the father "has not allowed closure"; and what she says is their emotional fragility (Mrs A has been receiving therapy). This, she submitted, raises serious questions as to how they might manage contact and as to how they will be able to manage the 'narrative' for W over the years. She says:
"If, as seems likely, Mr and Mrs A will be unable to meet W's needs for really attuned parenting in relation to the narrative, the high risk of psychological disturbance and even placement breakdown will not be mitigated."
99. I turn to Ms Jenkins, who submitted that Mr and Mrs A's expressed willingness to encourage direct contact is very recent and remains heavily caveated:
"It may seem that Mr and Mrs A have had to move on the issue of contact following the experts recommendations, and in order to bolster their case for adoption. However there is concern that this is not something that they truly desire or welcome for W … Mrs A in her evidence was clearly unhappy about the delay and heartache caused to her family by these proceedings. She sees W as their child, themselves as her family, and the father's application to have W rehabilitated to her natural family as unwelcomed and unjustified. Mr and Mrs A told Dr Helps that there had been too much focus on the wishes and feeling of [the father] and not enough on the needs of W. There is, it is submitted, a lack of empathy for the parents, and the father in particular who has sought to have his child returned to his care from the moment she was removed. If this is their view about the father that he is not putting W first, there is a risk that they will not be able to protect W from their own views about the unfairness to their family in the future. Their understanding of the father's actions is at times somewhat skewed – for example their references to keeping her safe."
100. 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. The only additional point to be made, and this is absolutely no criticism of them, is that, although I am sure they would do their very best for W if she were to be returned to her father, I suspect they would struggle in facilitating any interim arrangements – and who could possibly blame them?
The evidence: the local authority social workers
101. The evidence of the social workers, Ms Reains and Ms Gander was, by the end of the case, of limited significance.
102. Ms Gander gave cogent evidence about the continued good progress made by the father in his care of the children and their continued good progress at home and at school. It fitted in, as Mr Diver made clear in his oral evidence, with his own observations and assessment, just as it accords with my own conclusions in the light of all the evidence. Ms Jenkins suggested that, albeit in matters that may seem minor, Ms Gander exhibited continued hostility to the father. That does not accord with my impression and, even if she did, it had no effect on my overall conclusions about the father as I have already set them out.
103. Ms Reains gave oral evidence about the nature and quality of the relationship between Mr and Mrs A and W, providing an objective insight into W's life and about the capacity and willingness of the As to promote direct contact. Mr Diver accepted this evidence without reservation, as do I. She expressed concerns about W's capacity to withstand a move from Mr and Mrs A but the reality is that, insofar as she recommended the status quo, she relied greatly on the experts.
The evidence: experts
104. I shall take the expert evidence in the order in which the experts gave their oral evidence: Dr Blincow, Mr Hatter, Dr Willemsen and Dr Helps.
The evidence: experts – Dr Blincow
105. Dr Derek Blincow is a Consultant Psychiatrist in Child and Adolescent Psychiatry and a Visiting Fellow at the University of Brighton. His first report is dated 18 July 2016.
106. Dr Blincow was instructed to address the following issues:
"To assess the nature and quality of W's attachments with Mr and Mrs A and their son.
To consider and give my opinion as to the potential risks to W (in the short, medium and longer term) of removing her from the care of Mr and Mrs A and their son.
To consider and give my opinion as to the potential risks to W (in the short, medium and longer term), of ceasing to be a member of her family of origin. In particular, to give my opinion as to the risks to her of becoming aware:
that she has 3 full siblings living with her father and having contact with her mother;
of the history of the proceedings.
When considering risk in either situation, are there particular risks or implications in W's case in terms of her neurodevelopment?
To assess the father's ability, with the appropriate professional input, to support W emotionally, in the event of a reunification."
107. In relation to W's attachments with Mr and Mrs A and their son, Dr Blincow said this:
"W comes across as securely attached in the care of Mr and Mrs A. She is able to separate from and reunite with her carers without any undue anxiety and without showing any avoidant reaction. The interactions I observed were warm and appeared mutually rewarding for all concerned, that is throughout the time I was present in the household. This included with the carers' older son. I noted that W moved around the household very freely. She was somewhat shy with me, although she did make eye contact later when she was in the arms of her carer. These observations are corroborated by other accounts in the documentation.
The only possible indication of some insecurity of attachment is that she is reported to be more dependent upon routine than most, perhaps at the upper end of the normal range. I would express it no more strongly than that. There is nothing to indicate that she shows any other abnormalities in terms of her attachment at this point in time."
108. In his second report dated 15 August 2016, Dr Blincow added this:
"The current carers are her primary attachment figures. I do not consider the contact that W had with her father constitutes a significant attachment relationship on any level, except to state that the regular contact W had with the father during her time in foster care would have kept up to the potential for that to become a significant attachment relationship if and only if she had been placed with him fairly immediately thereafter.
… She shows a secure pattern of attachment in her current placement. It is a positive factor in terms of the key aspects to her development in the short, medium and longer term. Included in this is that it will help her in terms of being able to manage adversity in the future.
However, the level of protection it affords her cannot be relied upon in terms of her move away from their care. This is for 2 main reasons:
The first is her young age, given she must be considered to be still vulnerable in terms of her pattern of attachment.
The second is the scale and nature of the change that would be involved in moving away from their care. She would be removed from the care of those people she is most familiar with to a situation and carer she will have no familiarity with at all. Hence, she will lose her secure havens under threat when her experience will be of major threat."
109. Addressing the potential risks to W of removing her from Mr and Mrs A, Dr Blincow said:
"This would represent a major change in fundamental aspects of W's pattern of care, involving separation from the only significant 'parents' and 'family' that she has known. She was in foster care from her 2nd month to 14 months of age, but it is unlikely that she would have much by way of explicit memory or knowledge of that period of her life and the significance of that period pales in comparison with the now 2½ years she has been with Mr and Mrs A.
To remove her from their care would impact significantly on her trust in adults and it is highly likely that this would be accompanied by considerable and prolonged emotional distress and attendant challenging behaviour. The likelihood is that she would become withdrawn or hostile or both sets of reactions being shown in relation to future carers, in this case her father.
In the light of my comments above concerning 'attachment', removal would undermine the security of her attachment and it would represent a high risk to her emotional development in the short, medium and long term."
110. Turning to address the risks to W of ceasing to be a member of her family of origin, Dr Blincow said:
"This also represents a risk to her future emotional development, including her sense of identity and personality formation, in the way it would do for any child who has been adopted at an early age. The risk is significant in the longer term, probably from the time she reaches secondary school age and increasingly significant thereafter. It is likely to reach a peak in early to mid-adolescence.
It may be further added to by the complications concerning how and why decisions have been made, when these become known to her. In order to mitigate the adverse impact of a child's awareness of a complex and potentially emotionally charged history, it is very important that children are given narratives of their life-story that not only fit with facts, keep a positive as possible a view of those who have cared or not for her but also stress the endeavours of the adults who have made those decisions to take her overall needs into account. In general, it appears that the earlier they are given such a narrative, the better the outcome. Of course, the narrative needs to be geared to their developmental level, becomes more detailed as the child matures and in relationship to their need and wish to know more.
Lastly, the issue of contact can make a significant difference to the outcome in the short, medium and long term. The findings here are mixed. There are undoubtedly cases where adopted children have substantial contact with the birth family and that goes well. There are also cases where it creates major complications for their development, notably in terms of the stability of the adoptive placement, the child's emotional development and their sense of belonging. A clear sense of belonging appears to be a strong factor in terms of a number of indices of adult outcome, such as resilience, personality formation and stability of close relationships.
Key factors in terms of the impact of substantial contact on a child and their placement appear to be the following: The adoptive parents committing to and managing the contact arrangements, whether the birth family accepts, supports or undermines the adoptive placement through any contact that does take place as well as the nature and level of that contact."
111. Turning to the father's ability to support W emotionally in the event of a reunification, Dr Blincow said:
"The father is doing well in terms of his care of his 3 older children. There is nothing to indicate that he would not be able to manage a younger, 4th child in his care, although he may need to have additional external support. However, the task in terms of taking on W's care now is much more complicated and therefore more challenging to his parental capacities.
It is akin to him taking on a foster care role in the short term and working at major issues of loss over the medium term. The benefits of succeeding are in the longer term, but there is a long way to go before that is achieved and a high risk that it may be significantly undermined by these short and medium term difficulties.
The likely scenario for W is that she will experience a period of what could be described as shock at removal from Mr and Mrs A's care, including losing day to day contact with their son. This is probably no matter how such a transition is carried out, although how the transition is effected, should it occur, has the potential to ameliorate some of the impact on her. She is also likely, when that shock dissipates, to feel considerable distress, anger and confusion over the change. There is a likelihood too that she will withdraw from those caring for her and become unresponsive to nurturing influences. She is also likely to feel insecure with them, given the profound change that has taken place in her life and distrusting that the placement will persist.
These are likely features of the early months to a year or so following the change. If this persists for longer, then she may actively attack her carer in order to promote a return or engineer a breakdown in order that this is in her control rather than that she is the victim. Control over the adults may be particularly important for her to exert, given the distrust she is likely to have developed due to the disruption in her care.
The father needs to be able to deal with these likely reactions as her immediate and sole carer. The distrust she feels and any hostility that arises on the basis of this is likely to be directed at him. While external support is important in supporting, it will be his capacity to contain, work with and provide the necessary remedial actions that will be key if those long-term benefits are to be realised. Clearly, also, the older children need not to lose out as a result.
To date, he has cared for children who have been with him continuously and who have that reservoir of shared experience. They are open and receptive to his parenting. They have a strong sense of belonging with him. If there are any perturbing influences, they do not see these of his making and what there has been should be seen as considerably less in terms of scale and nature than would be the case with W.
Therefore, rehabilitating W to his care represents largely untested waters as far as [the father] is concerned. The positives concerning his parenting are as detailed in Mr Willemsen's report and I would agree with these. [He] shows commitment, has cared for the older 3 children well and under, at times, difficult circumstances. He has done work on himself in terms of impact on him of the adversities in his own family background and has some appreciation in what he has stated as to the scale of the task of rehabilitating W to his care entails. He appears to have worked increasingly well with those offering external support and advice.
What concerns there are relate to how [he] will cope on a day to day basis with the challenges I have detailed above on as well as managing alongside the needs of the older children. This is without a great deal of family type support and where he will need to work in with a great many others and some time to come (over years rather than months, albeit intermittently) in the process of settling W into his household."
112. In his second report, Dr Blincow added this:
"I do not see him as fully appreciating the degree of change it would involve for W as well as the scale of the task for him and particularly for her in overcoming the impact of such a change."
113. Returning to the issue of contact in the event that W stays with Mr and Mrs A, Dr Blincow added:
"I am not in favour of contact being decided pre-adoption and would consider it important that there was a period of time for the family to settle free of proceedings, uncertainty and dispute before contact above and beyond letter box was contemplated.
I already opined above as to the kinds of factors that there are most likely to help W's adjustment in the longer term. I would see indirect and even direct contact as forming part of an ameliorating package, but I see problems in this being ordered. How ameliorating and not undermining it proves to be is dependent upon relationships between the adults post-adoption, most notably whether there is general support for W being cared for where she is."
114. In relation to life-story or therapeutic work, Dr Blincow commented:
"The reality is that one cannot predict how she will react later to the fact of her adoption and deal with the complexities over how that decision was made. Too much anticipation of problems that may not be so significant can be as harmful as not anticipating that such issues will indeed be important for her. Hence, what is most important is the carer's sensitivity to a point when the issue does need external intervention."
"There are many uncertainties involved in predicting the long-term outcome for children with complex care histories. There are multiple variables to take into account. 'Attachment', however, has stood the test of time and does have significant predictive power. That predictive power stretches only as far as the likelihood of a particular outcome and is far from certain. For example, there are many children with insecure attachment who do flourish on many dimensions of adolescent into adult functioning. However, those with insecure or disorganised attachments are so much more likely to be compromised on these dimensions that it remains our best guide to their outcome in the longer term."
115. In his second report, Dr Blincow returned to the fundamental issue:
"… there are risks to W's emotional development at all stages should she move from her current care situation. There are risks only at the medium and longer term stages should she remain in her current care situation, presumably as an adopted child. There are more uncertainties involved at all stages if W moves, some uncertainties in the medium and long term should she remain. Overall, therefore, there are considerably more risks and uncertainties with moving her from her current situation.
I consider the threat to her attachment to be the main mechanism that leads to the differential pattern of risks and uncertainties."
116. During the experts' meeting on 29 July 2016, Dr Blincow expressed his risk evaluation in numerical terms:
"I think it is difficult to be hard-and-fast about calculating. What I've broken it down in my own mind to is short, medium, and longer term; though longer term I'm meaning by adolescence, breaking it down to her age now, short-term for the next year or two, and then during her primary school years, and then into her adolescence.
When I start adding up what I think the risk levels are at each age of the different courses of action, reunification or adoption, it seems to me whichever way I look at it and whatever variables I put in, the immediate risk to her of the change to her birth family outweighs everything else and will continue to throw up uncertainties in the longer term. I know there are risks with regards to adoptive placements, especially with complications, although I'm not sure those complications are particularly relevant for the longer term, but they don't weigh up to be the same level of risk, in my mind, overall when you break it down."
117. He continued:
"In the sense of just trying to explain what I was just saying, in the short-term, it seems to me the risks to – if I put this in sort of levels, really rough levels I understand, but something that might help to just quantify it a bit. If we said naught to three, three being the highest risk level, it seems to me reunification, if we're just looking at that, the risk to her of her wellbeing in all sorts of ways and any harm done, and how she's going to be distressed and the level of difficult emotion that she'll go through, I would put that as three in the short-term.
I think that may reduce over time, but would still be an issue for her into the medium term, and it may well still be an issue for her in the long term, but there are clearly uncertainties around it dropping considerably during that time. So I do think the risks in the medium-term I would consider to be two and in the long-term one with some uncertainty because of course how she gets through those first few years is going to be absolutely key, so there are some uncertainties. So if you added that up you'd get a score of six overall with a couple of uncertainties.
If one looked at the short-term in terms of the adoption, I think you wouldn't be looking at a risk to her, a negligible risk to her. In the medium-term that risk might slightly go up because of the issues of contact, how she starts to make sense of things, if there is any contact and how that goes. And the long-term of course that's where the major risk comes up, but I still can only convince myself that we're in the level of risk of about two with perhaps some uncertainty around that.
So if you added up those risks in terms of adoption, it's considerably less in my estimation, half the kind of level of risk one would be looking at in terms of reunification, in terms of her emotional adjustments. On the dimensions of her identity, personality developing later, it seems to me the risks are considerably greater with regards to reunification, to her wellbeing overall."
118. Later in the experts' meeting, responding to Dr Helps' observations in relation to contact (see paragraph 162 below), Dr Blincow said:
"I agree with what Dr Helps is saying.
… this is something you have to leave up to her adopters, but you'd want them to be thinking about it actively as part of their overall care of W as she grows up. So I wouldn't want to rule anything out as far as contact's concerned, indirect and direct."
119. Addressing the question of whether there should be a contact order, he said:
"I don't think it would be helpful in the situation; I think you'd be undermining what would happen in the adoptive placement to such a degree. Especially given the history, I think the adoptive parents need to actively consider this and from what they told me, they would be doing that. What the outcome would be I think is very uncertain at the present time, but I don't think it would be helped by having an order for contact. I think that would just increase the complications in terms of the relationships in the family that exist at the present time."
120. Answering questions from Mr Feehan, he said this:
"… she has had a good experience, a secure experience, better than good enough and therefore she will notice the disparity and differences in a marked way. It is the scale and severity of that change that one is looking at. It is attachment plus, if I can put it that way. You really are taking away from her the structure, the psychological structure that she has grown up with and developed up until this time, she is three and three-quarter years of age and that is at a time when it would be very difficult to explain to her in a rational way and compare because of her cognitive abilities why this is going on.
A You would not be able to. You would be able to physically comfort her. You would be able to be there for her in the moment. I have no doubt her father would want to do that and be able to do that to a great degree. But the problem for her is that she would still be in this marked distress. Because of her age and experiences she has had that would be quite difficult to get to the root of with her in that short-term period. That is why there is so much uncertainty running on into the medium term.
Q So, do I summarize it correctly by saying that what you do is you give her the worst shock of her life so far while taking away the structure by which she would ever be able to deal with?
A Yes, that is a very dramatic way of saying it, but that is the gist of what I am saying, yes."
121. And a little later:
"… she is at an age where it is very difficult to explain that to her in any consequential manner that she would take on board. I mean, you will be talking about your forever birth family you are going to, as one might well do with adoption, but it is seriously going to go against the kinds of experiences she has had already and the experience I think would be a shock to her no matter how well it is put, how quickly it is done, how effectively everybody behaves because it is an unusual situation. She has been with these carers as prospective adopters for so long and she has very little, if any, knowledge of her birth family apart from what she has been told more recently."
122. Then, in answer to a question from me:
"Q … your concerns are that the immediate reactions are likely to be, as you described it, very severe indeed and that it is very difficult to predict with confidence that she will work through it beneficially in the 6 to 12 month period?
A That is my concern, yes."
123. Then, in answer to questions from Ms Bazley:
"… at this age, in her circumstances as she is moving to where she would without any of that structure and support there, it would seem to me that is a very high risk situation as far as her emotional health is concerned and attachment development.
… I think it is almost inevitable. I have to say this. I think it is almost inevitable that she is going to go through a period of distress. How that distress manifests itself and what it leads to is uncertain. How long it lasts, severity, those things are uncertain. So that, it seems to me, is almost inevitable in the first weeks and months of her having moved. How that pans out over a longer period of time is certainly associated with a great deal of uncertainty, I would agree.
… Prolonged temper tantrums, periods of not wanting to be comforted, withdrawing into herself.
… probably all of them I would say, at different times alternating."
124. Ms Bazley continued:
"Q … if, in that period, and you said within 6 to 12 months one would have a pretty good idea how well it was going, but if it was going well and W came out at the other end, I think is the term you used, one then would not worry significantly about the medium and longer term in that scenario?
A Yes, I would agree with you. I think that would help to really determine those uncertainties that I have said for the medium and longer term.
Q … I get the sense, and perhaps wrongly, that when you talk about your hierarchy of risks, you are looking at this as a fairly ordinary case where a child is adopted. But I want you to think perhaps how extraordinary this case is that this child has four well-adjusted siblings living with her father who is a very competent father and that would be what would prevail at the time an adoption order were made. Does that not put this case into a wholly different category when one is looking at ---
A No, I do not think it does put it in a wholly different category. I think it loads it, but I would not say it puts it in a wholly different category. Adoptive children have to come to terms with this throughout their lives and particularly around adolescence in terms of where they belong.
… I think that is mitigated considerably by the experience that she would have had in her adoptive placement if that is where she grows up.
… Whether it would lead to a major emotional reaction qualitatively different from that that a lot of adoptive children have I am not so sure."
125. In re-examination by Mr Bennett:
"Q … Are you saying that those necessarily apply to W even in the care of Mr and Mrs A moving forward?
A No, I am not. They are risks but they are not the highest risks, far from it it would seem to me, and highly dependent on the quality of care she receives in the interim.
Q And you just said that one of the pluses about that situation is the care and ongoing …. the high quality care that you believe she will receive from Mr and Mrs A?
A Yes, and therefore it gives the possibility of that situation being workable with …
Q … the reverse situation with W leaving, if she were to return to her birth family. You accepted that medium or longer term risks would not apply if she were able to manage the transition in the short-term successfully?
Q What is your best assessment of her ability to do that given what you know about her history and her age?
A I think it is unlikely. I think this will have a long-term effect on her development emotionally this transition at this stage of her life from where she has been to where she is going to, the scale and nature of that change."
126. And a little later, in answer to me:
"Q … you are saying the risks of a move back are so great and so difficult to manage that in a sense no parent in his position would be able to manage it?
A That is my view, yes.
Q So that in a sense the father's abilities, although they are obviously a very important part of the picture, are not determinative on what you see is the absolutely fundamental core of this, the handling of this difficult transition if W returns home?
A No, I think that is independent of my view.
Q So that if it strips it down to the absolutely core of this, because she is where she is, I assume, am I right or am I wrong, she will have no conscious memory of life before she arrived?
A That is my view, yes.
Q So the only family she will have any memory / understanding of is Mr and Mrs A, but because of the time she had been there, the state she is at, the fact that she is very well attached to them and so on and so forth, it is all of that which produces the trauma, the shock if she is to be transferred out and that is effectively unmanageable even by the best birth ---
A Well, it may be manageable but there is a considerable amount of damage involved in that process.
Q … the risk, the level of risk at that third stage on the hypothesis that W remains with Mr and Mrs A is a distinctly lower level of risk than the risk you see immediately if she was to be transferred?
A That is correct, yes, that is my view."
127. And finally, in answer to further questions from Ms Bazley:
"The point is the highest risk is at this point of transition and in the short-term it may not reduce a great deal over time if that does not go well, but the highest risk to her development is to make the change at that time. There are risks. There are risks later on clearly but they are not as high to her long-term development as it is at the present time.
… it is a very high risk for a child in their development to be doing this at this age."
The evidence: experts – Mr Hatter
128. Mr Mark Hatter is an independent social worker with long and varied experience since qualifying as a social worker in 1986: over 28 years' experience of working with child protection matters as senior social worker, child protection coordinator and team manager; a multi-agency child protection trainer; an assessor of prospective foster carers for a private fostering agency; and for 7 years a self-employed children's guardian working in both public and private law proceedings. He had previously reported on 24 March 2015 and given evidence before Russell J. His report prepared for the hearing before me is dated 18 July 2016.
129. In his latest report, Mr Hatter described his observations in the father's home:
"During my observations of the children in the care of their father I did not observe any behaviours on the part of the children that gave me concern. On a physical and practical level [the father] continues to appear to be meeting their needs and the children respond well to him.
… It is evident from my observations of the home environment that [he] continues to prioritise the care of the children above his own needs.
… Given the level of anxiety he is currently experiencing due to the Court proceedings [he] has demonstrated a level of resilience that has impressed me. He appears to have been able to contain his own emotions and anxieties and ensured that the current proceedings do not have an undue effect on [X, Y and Z]'s care. Both [Y and Z] are making good progress at school and whilst there are some ongoing concerns with regards to [X]'s peer relationships, generally she is doing well. The children's school attendance is noted to be excellent and school to home communication with both schools is reported to be good."
130. On the crucial question, Mr Hatter's opinion is to be found in the following passages in his latest report:
"… should W be placed with her father she will have been removed from carers with whom she has a secure attachment to. Such a move will not only be distressing for her she will also be placed with her father whom she has no memory of and with siblings who last saw her as a small pre-mobile baby. Given her age W will initially have no understanding of her relationship with [her father] or her siblings and could easily become overwhelmed by her experiences.
… it would take an exceptionally skilled and emotionally attuned parent to manage the return of a child to the family unit after such a long time and to still be able to emotionally support the other children.
… Whilst [the father's] capacity to meet the needs of [X, Y and Z] has been extensively assessed and the Local Authority have no concerns about his parenting capacity of these children, it is clearly much harder to assess his future care of W, given that she has not been in his care since she was a baby. [He] understands that W will not have any meaningful concept or understanding of who he and her siblings are in relation to herself and he acknowledges that she may be suffer trauma at being taken from Mr and Mrs A, who she looks to to meet all her needs, including when she is in emotional distress. I agree with the Local Authority that W will require empathetic, sensitive and reflective parenting.
… [The father] has shown a level of understanding that would suggest he will be able to empathise and respond appropriately to any distress that W may display. Whether this will be sufficient to mitigate her distress cannot at this time be measured."
131. This analysis needs to be compared with Mr Hatter's analysis in his first report, which was markedly bleaker:
"Whilst it is possible that [the father] would be able to manage a return of W to his care and to meet her needs in the short and longer term, given that the last time he cared for her was when she was a pre-mobile baby the placing of her in his care will not be without the risk of her being once again removed from his care in the future. Should this occur the consequential significant harm to her emotional and psychological functioning cannot in my view be underestimated.
In my opinion it would take an exceptionally skilled and emotionally attuned parent to manage the return of a child to the family unit after such a long time and to still be able to emotionally support the other children. In such circumstances the ability to accept Local Authority support and to listen to the advice given is essential and the Local Authority questions how able [he] would be in accepting this support.
… On balance, I am of the opinion that given the past concerns, the current concerns of the Local Authority and the impact on W of removing her from carers with whom she has formed a secure attachment to, the risks that [he] will be unable to meet her overall needs are too high to justify the inevitable harm that will occur to W's emotional wellbeing should be removed from her current placement."
The weight that Mr Hatter there attached to what he referred to as "the past concerns" and "the current concerns" will be noted.
132. At the experts' meeting, Mr Hatter considered the question of contact:
"… part I'll guess of the court's decision-making process will be to consider whether or not they feel that Mr and Mrs A will promote and support future contact if it's in W's best interest.
For me, that's fundamental. It's an integral part of whether or not they can be seen as people that should be adopting W because for me, and I've said this earlier, if they are not going to be supportive of contact for W with her birth family, then that may have disastrous consequences for her. It will have disastrous consequences for them because it may well lead to a placement breakdown and may well lead to extreme disruptive behaviour."
133. In answer to questions from Ms Bazley, Mr Hatter said this:
"I have serious concerns about the placement long term. That is not reflecting upon Mr and Mrs A in any way. I fully acknowledge the care that they have given to her. However, I have significant concerns for her at the critical times between the ages of 12 and 14 and the narrative that she will receive and her understanding of what has happened to her on that journey.
It may well be that she chooses not to make those enquiries or considers that what has happened to her has happened and that she is content and secure in her placement and it goes no further. I bear in mind what Dr Blincow has said, you cannot presume it is going to cause difficulty. However, looking at what I have looked at, I have significant concerns.
It is an incredibly hard decision to make for W because if she goes home it could be a success for her; if she goes home it could be disastrous for her emotionally. If she is to remain with Mr and Mrs A it could be really successful for her and her outcomes throughout her life are really good. But, equally so, she may reach a point when she is a teenager when it starts to break down."
134. And a little later:
"Q And his commitment is certainly not in doubt?
A No, no.
Q Do all these things give you as much confidence as you can have that he will make it work?
A So much of this is about W, is it not? It is about whether or not she can make it work in respect of her own ability to form an attachment if she is moved away from who she regards as her parents.
A If she is unable to do that, with the best will in the world there is going to be significant difficulties for W emotionally and psychologically and what her future may bring her."
135. I then asked him this question:
"Q I think I have got the impression that you would not want to predict the likelihood of either of those things happening? You have more than once said you do not know?
A I think it would be fair and I will say this for the record that in 30 years of practice this is the case that has troubled me the most. I think the outcome for this child and the decisions that are made for her are so significant.
… I think my opinion would be that we have a long-term potential risk with her remaining with Mr and Mrs A and a more short term risk which is she moves over to her family, she is unable to make that attachment that she has wanted to do and then one sees a number of behaviours that are symptomatic of that as reported by Dr Blincow, which leaves her potentially damaged for a significant period of time and in need of significant therapeutic support. So from my perspective I found it very hard when looks at both the scenarios to try and balance. I think in the short, my Lord, I do not know."
136. In answer to Mr Feehan, he said:
"Q … But in terms of the move now and the potential frightening, overwhelming, distressing experiences that W would suffer, you have not changed in terms of your concern about that from the last time you wrote a report except to say that because of the passage of time they may be more acute in themselves?
A Yes, yes, I would agree with that."
137. Finally, in answer to Mr Bagchi:
"… I have not been asked to do any sort of balancing exercise between that and a potential breakdown of the placement.
A But clearly in the short term if the placement with her father breaks down because of her attachment, being unable to form a secure attachment to her carer, that is going to cause significant problems for her, yes.
Q Do you want to be drawn on my question though? That would be the worst of all available outcomes for her at that particular time?
The evidence: experts – Dr Willemsen
138. Dr Hessell Willemsen is a Clinical Psychologist. He had previously reported on 8 April 2015 and given evidence before Russell J. His reports prepared for the hearing before me are dated 25 July 2016 and 15 August 2016.
139. I start with his report dated 25 July 2016:
"In respect of the attachment development of W, the court is faced with a binary decision which is characterised by an assessment of risk of attachment development and development of identity.
… the court is to consider the risks related to two scenarios. The first scenario would be the placement of W with her father. This would entail a separation from Mr and Mrs A and a placement with her father and siblings."
140. He continued:
"W will have to deal with a loss, that of Mr and Mrs A, their son and their extended family and friends, as well as her familiar surroundings such as her house, childminder, playgroup, et cetera. The manner in which she may deal with this loss remains unclear. She could by now have developed adequate internalised objects, representations of stable care in her mind, which could present the possibility to mourn her losses when she is removed. This would be a significant bereavement for a young, three years and ten months old, child (the age she will then be). We know that the impact of bereavements for young children is related to environmental factors. The manner in which the child is supported by the surviving parent, the manner in which the surviving parent is able to keep the deceased in mind, the manner in which other psychosocial areas in the child's life respond to the loss of the child. This keeping-in-mind work that needs to be undertaken by people around the bereft child would, in W's case, necessarily be undertaken by her family and professionals, and could be supported … by Mr and Mrs A.
In contrast to the child who might lose a parent … W is to lose the life as she knows it. Every possible support, should the court decide that W is to return, from Mr and Mrs A would be important. They could give W the permission and encouragement she will need, apart from many other forms of support, such opening up W's thinking about the existence of another family that will love her.
W could, in this scenario, be helped to attach to [the father] and her siblings. She would possibly be able to suffer the loss, the trauma she suffered, and re-adjust to the family. It is an important factor that there was contact for a year, during the first year of W's life. Although not known to W, implicit memories of her family may support her in her re-attachment to her father …
It is also possible that W's separation from Mr and Mrs A will be the straw that broke the camel's back. If she would give up on reattaching, having suffered the trauma once too often, she might find herself unable to relate to [the father]. W's bereavement process, I think, is likely to be on the continuum between a bereavement in which she can suffer the loss, which will be significant in itself, and a trauma in which she withdraws from her internal objects. She might protect herself by not making new relationships."
141. There is then a long passage which I must set out in full:
"The long-term consequences, in relation to this first scenario, a placement with the father, are that she may have lasting attachment problems which may cause problems particularly during her adolescence, and later as an adult. It is also possible that she will relate to her biological family, and develop new attachments based on the resilience which she appears to have.
In both scenarios, the issue of a secure attachment over the long-term is the crucial factor of success. This is the premise for adoption, but would of course also be the premise of a placement with her father.
The second scenario is one which is related to a risk of loss of identity, effectively felt as feeling a sense of belonging, and could have adverse consequences in the long-term. The possible consequences of confusion about identity will need to be seen against an existing background of early separation trauma as W has suffered. She would not grow up with her biological family and would, in time, become aware of her adoption and of there being a family elsewhere, to include three siblings.
It is entirely unclear how W will develop in this adoption. There is ample evidence that adoptions are not always successful. On the basis of the available evidence, and the age at which W was placed, it is unlikely that a placement with Mr and Mrs A would breakdown, but this does not preclude developmental problems years down the line, on as a result of the early traumatic separations in W's life, particularly the separation which took place when she was moved from her foster carers to her prospective adopters, which fell in a critical period of attachment formation (6 months to two years).
The risk of identify confusion also plays a role when W grows up. It is more and more accepted that contact between birth and adoptive family is important and helps to develop a narrative that holds both families in mind and in which both families speak positively and benignly of the other family. Such contact also helps with teenagers who are adopted and begin to seek their biological roots, through social media without the knowledge of the adoptive family.
The adoptive parents' openness is very important if not crucial in the identity development of the child. Allowing themselves to speak freely of the biological parents and siblings, benignly, is important for the development of a narrative that will protect against eventualities such as the adoptive child finding her biological family without the adopters knowing. Significant splits could develop in the adoptive family, but also in the mind of the child or adolescent.
The confusion about identity could, in its worst form, lead to the child feeling a cuckoo in the nest of both families, and have significant ramifications for lasting long-term adult relationships. W could end up feeling that she does not belong, or only partly belongs, to the adoptive family and not, or only partly, to her biological family.
Both scenarios describe an accumulation of risk which would affect how she will later on in life develop. The accumulation of risk will affect W's risk of managing the separation, should she live with her father, but also how she will manage the risk of the possible confusion of her identity as she grows older when she stays with Mr and Mrs A.
The case is exceptional in that Mr and Mrs A longed to have this child in their family and received her wholeheartedly with a view to W being part of their family, a situation which is entirely different from a child who is waiting to be placed with another family, while being placed with foster carers. The question for the child would be: 'When can I go to daddy?' W does not have this question.
W will need a parent, in the scenario of being placed with her father, who can cope with the significant separation W will suffer with a risk that she might not reattach. This task would be immense, as Mr Hatter pointed out in his first report, and would require significant attunement, as he said, but also an environment, the family as a whole, where she is received and where she can experience that she has been thought about, that she was alive in the mind of the family. It will take months and months, if not a couple of years, before she might have found herself settled in the new family. She will need to let go of her previous family, yet be allowed to have them in her mind. I consider that [the father] will be able to keep Mr and Mrs A in mind. [He] could be supported by a professional network that monitors the re-introduction and considers interventions that could be made at any possible juncture.
Consideration will also need to be given to how the [birth] family will respond to the child, particularly when she may be withdrawn, distant, rejecting, not wish to interact, unhappy, angry, disappointed. When I visited the family this time, I thought that there was less excitement and cautiousness. This may partly have been because I saw the children on a Friday afternoon after a week's school, but I also thought that the calmness, and indeed the sadness I could feel when I left the home, was related to the disappointment of the Court of Appeal's recent judgment. W was missed.
It may be possible that the family may respond with depression and frustration: 'We have done all this work and now you do not want to be here; we have been thinking about you all this time and now you don't want to play with me'. This may be very disappointing. W may reject [the father] in the first instance. W will need to be allowed to have these feelings and the family may need support to understand them, so that they can attune to her. She may also be reminded, perhaps not consciously, of the contacts, of the perceptual sense memories of the first year."
142. In relation to contact, were W to stay with Mr and Mrs A, Dr Willemsen said this:
"Contact may, in this particular case, raise issues for W, should she stay with Mr and Mrs A. She could ask her adoptive parents: Why did you not let me go to my family; did you ever contemplate that possibility?' Contact may be perceived as threatening. Mr and Mrs A would need to be empathic about such questions and may end up having to do some soul searching on their part.
… I think that W and the siblings will benefit from contact. I consider that contact of twice a year will be helpful to support W's identity development and to foster her relationships with her siblings. I think that one contact could be joined by the father, and one by the mother.
The risks will be ameliorated by Mr and Mrs A being open and honest about W's life, her biological origins, the love her biological parents have for her and her siblings have for her. The knowledge of having family elsewhere supports the development of identity and the child's life narrative. A coherent and true narrative of life and events, with the appropriate emotions and affects, make for a secure attachment, as a basis for strong long term relationships"
143. In relation to the father, he said this:
"I consider that [the father] has a realistic view, acknowledging that he can idealise, of the difficulties he may encounter, and his children may encounter. I consider that he has dealt with a significant level of distress as received from critical professionals and continued to care for his children nevertheless. He is evidently attached and attuned to his children who are, reported by other agencies, doing well.
I acknowledge Mr Hatter's comment once more, with which I agree, that there need to be high levels of attunement, but this would need to be to the case for anyone. The case is most exceptional, and certainly also because he managed the three children he has so well, including finding time to begin work, to support his family better.
I have found [him] able to engage and let me know about his disappointment, his ability to be with his children and his ability to engage. My concern would not be about his abilities, but rather with W's ability to suffer the separation from Mr and Mrs A."
144. Commenting during the experts' meeting on Dr Blincow's risk evaluation, Dr Willemsen said this:
"I would say I do agree to some extent with the assessment of risk that Dr Blincow. I certainly agree with the immediate risk because I think that is quite high and indeed one could see if she is placed back with the father, I would certainly agree there is still a medium risk. I was really thinking about early adolescence and so on and how that might possibly affect her.
But I think that this whole discussion of risk can't actually now take place without looking at all the factors around W and how these risks are going to be carried, i.e. by the father, if she gets returned back home, how the family will respond, how the particular set of siblings will respond to this child. They are all factors that make this very important to estimate how that risk is going to be carried and played out."
145. He went on:
"Dr Helps in her reports speaks about slight risk, if I remember that well, and I just don't agree with that. I think it is very unknown and I am not so sure. It is very difficult to know because of course I'm not so sure how Mr and Mrs A are going to respond after the court hearing.
… What I really mean to say is I think it is quite difficult to put something quantitative to that risk around identity. I think it is and I fully agree much easier to do that with the reunification scenario because it's clear enough and so in the face that there is going to be a trauma and that that is going to be a high-risk trauma."
146. In his second report dated 15 August 2016, Dr Willemsen returned to the potential impact on W of a return to her family of origin:
"It is frankly hardly possible to predict how W's behaviour will develop and how the family will respond to her. It is not only her level of disturbance that will dictate whether reunification will be successful, but also the manner in which the disturbance is dealt with, is contained.
… Consideration need to be given to the moment the distress is likely to show itself: would that be immediately after placement with the father, or, more likely, in the weeks and months after placement. Assuming that W has a reasonably secure attachment, she may not react with significant trauma upon separation from Mr and Mrs A and their son.
… The experience of trauma will be significant for the adults, for Mr and Mrs, at the point of separation, because they can anticipate the loss, whereas W will be less able to comprehend he loss. As Mr and Mrs A said during the interview when their son asked 'What if W asks for you at night', it is more likely than not that W will initially hold on to Mr and Mrs A in her mind, as her attachment objects, and slowly lose these connections in her mind.
It is at that point, when she cannot hold the connections with her internal objects, the mental representations of Mr and Mrs A, that she will need to reattach and form new attachments with her father and her siblings. This is where I think, when I spoke of 'void' during oral evidence in the previous proceedings, there is a risk that she withdraws and may develop an avoidant attachment, may be more self-sufficient and less reliant on others, in order to avoid the painfulness, and the emptiness of the previous separations, and the early separation from her mother.
The manner in which W's distress is held and responded to by her father and her siblings will be determined by the level of resilience the father and the siblings will have in relation to W's distress.
… Should this be successful, W will find a new home and a sense of belonging with this new family, but should the distress escalate, she might find herself an outsider in the family of her father. She might also cut-off from her feelings, as in an avoidant attachment, and develop problems in adolescence. She might feel rejected. W's likely response is probably not one of the extremes but somewhere in between the two scenarios."
147. In his oral evidence in answer to Mr Bennett he said:
"I agree that you can wait a bit of time but I think I would also not wait too long. Again I will be picked up on it but Mr and Mrs A speak a great deal about when W is ready. They do not define what they actually mean with that statement. For me I think it is more important to take an approach I think where [the father and mother] and the children are seen as some sort of extended family, that is just going to be a part, it is not their family, Mr and Mrs A's family but visiting in that way so that they become something that is actually, it comes part and parcel of what life really is.
I think that sounds very scary. I think the reality is that if the court will decide that Mr and Mrs A would look after W, that they of course, because they will then be the legal parents, always remain in charge about decisions that are made. It is very much in their hands as it is. I would say, I would say begin with that sooner rather than later."
148. In answer to a question from Mr Feehan about Dr Blincow's evidence, he said:
"I am not necessarily sure that that is the case. It is not that I disagree with him that there will be significant levels of distress to endure but it may be that she initially perhaps, even partly responds, wonders what this is. I mean, there is no evidence so far I think that at actual separation, really, the actual moment would be explosive. There is nothing I would say that would suggest that."
149. In relation to Dr Blincow's concern that W might be unable to re-attach:
"Q Is that a concern you share?
A I do share that concern, yes.
… I think it will be a very significant change but it seems to be that what is very important is how this distress is facilitated with her and whether or not [the father] in fact can respond to some of her distress, contain it with her and deal with it."
150. Then a further question from Mr Feehan:
"Q … There is the risk of her acting out in behavioural terms the stress that she is feeling and the destabilisation of the household as whole. Do you accept that?
Q That it is not at all unusual -- I am going to use a terrible old cliché -- for a cuckoo in the nest scenario, the other children seeing her as difficult, a threat, they are disappointed that this idealised person is not what they expected and that causes difficulties.
Q There is actually the risk postulated by Dr Blincow that the whole thing breaks down and the local authority have to come in and care proceedings are beginning. He sees that as a real risk which cannot be ignored. Do you accept that in that scenario?
A No, I think that, I am not sure that if I share a similar level of concern as Dr Blincow. I think he was, certainly when I had (unclear). I think my scenario is slightly different because I see it much more a sort of regression that is taking place where she can't come out. I can, of course, not exclude his scenario but I think, I am more thinking, I see this child slowly dwindling (?), as it were, and if she can come to be picked up.
I do not see so much that an immediate acting out that will happen. Will she withdraw I wonder? Will she try to cling on to these internal objects that she has? So for me it is a bit too dramatic how Dr Blincow puts it.
Q If she does withdraw in that way, if she does fail to attach, even if that familial breakdown does not happen, the consequences to her development and personality are nevertheless there, are they not?
A I agree, yes."
151. He was questioned by Ms Bazley:
"Q May I ask you in terms of the sort of distress and behaviours she may experience, how you feel this father can respond?
A It is so very difficult to answer that question in the sense that it is very difficult to know how she will in the first instance react. I have to think of one of the earliest statements of Mr and Mrs A where they describe how W was first sitting at the end of the bed and very slowly come by and makes contact and so on.
Part of me has wondered might she indeed withdraw in the first instance on the basis of that kind of observation that might be a likely way of dealing with that distress, i.e. I am going to make sure that I am self-sufficient because, you know, all these changes that I can remember it is too much for me and then of course, if she will be in such a scenario it will be about [the father] being quite inviting towards W and see if he can begin to engage with her. I think the children being at school in many ways will be very helpful because he will have time on his hands to just be with her to build that connection, to have this time with W.
There are, of course, different scenarios. There may be stress, there may also be (unclear) sometimes she will get quite cross and she may throw things and may not listen and become disobedient. I think then the process that needs to take place is that he can help her to understand this distress and how this behaviour is in fact of course a representation of some of this distress. He will need to help her."
152. And a little later:
"Q So, you do not agree with the catastrophic reaction that Dr Blincow proposed but there is a range which you would expect to happen, perhaps not first of all, but as weeks go on?
A That is what I think, yes.
Q Again, it may be more serious, it may be less serious?
Q She may adapt quite well, she may have real difficulty?
A She may internalise, she may, you know, more superficially adapt and the suggestion that Dr Blincow makes can, of course, not be excluded that there will also be enactment and anger. I mean there will be anger one way or another because of course there is disappointment? It can come out in many ways. It can come out quite directly, it can come out in an internalised way."
153. Then, in relation to the father:
"In a way, you could say, he put his children's need before his but also adjusted to his own needs as an individual. I do think that he has progressed a very great deal from the start of contact he has made when there were concerns about these children.
Q If one was looking for a parent to be able to do this, one has a very competent parent, very attuned parent?
A My Lord, I think so."
154. Ms Bazley then asked about a possible transition plan:
"Yes. I think that when we worked out the plan last year it was raised that we develop a plan and I was speaking about it and then we were thinking about a year and I think that when I was speaking with Dr Blincow he kind of suggested six months but, of course, I think this is all pending review.
A It will be quite a long process.
Q So, six to twelve months is what you would advise?
Q Do you agree this is a great deal more support of professional input than normally happens when children are moved?
A Oh, yes, that would be quite different.
Q It is vastly different?
Q So what happens when the state moves children, whether securely attached or not?
A It is not to be compared. I think the local authority's offer in many ways is very generous.
Q Yes. It is going to be very supportive of success of the plan?
A Yes, absolutely.
Q You read very carefully what is said by those who feel this will not work or would have a high risk of not working?
Q Dr Blincow and Dr Helps, is it your recommendation that this plan is put into effect?
A If the court decide that the child should live with the father then, yes, I think that such a plan, I think it would work. I think it resonates strongly what we already talked about last year.
Q You think it would work?
A I do. You can never rule out all the risks but I think that this plan, it is the best way forward."
The evidence: experts – Dr Helps
155. Dr Sarah Helps is a Consultant Clinical Psychologist and Systemic Psychotherapist. Her report is dated 14 July 2016, supplemented by a further report dated 3 August 2016.
156. At the outset of her first report, Dr Helps summarised her opinion:
"She has settled well and has made good, secure attachments to her current carers, who had initially taken on her care in their role as adoptive parents … W's biological father, wants to look after W alongside her three full siblings. W has no current meaningful relationship with her biological family although her current carers are working in developmentally appropriate ways to help her develop this. Moving from her current placement to live with her father would involve the traumatic loss of her primary carers, which could have long-term negative implications for her development and well-being. While there may [be] potential gains for her in moving to live with her biological family, I am not convinced that these gains would outweigh the loss that she would experience and the potential damage to her ability to form future trusting relationships. I am also not convinced that [the father] has the ability to sufficiently put his own feelings aside and to consider and meet W's current or future emotional needs."
"He thought that W might experience a move from Mr and Mrs A to his care to be traumatic and that she might have problems that might last for months. He said that despite her advancing age "she is still at an age where I can make it work. I have the right sort of attitude.""
Later, she said:
"While I do not doubt [the father]'s desire and motivation to work to help W deal with the loss of her current carers, I am not convinced that he has the emotional sensitivity to successfully do this, while at the same time meeting the considerable needs of three other children as a sole carer.
Overall, I do not think that [he] presents with the ability to mentalise, that is to think and feel from the position of the other."
157. Assessing W's attachments with Mr and Mrs A, she said:
"Based on the interactions I have seen and read about, W has a warm, engaged, secure, attuned relationship with Mr and Mrs A. Mr and Mrs A are sensitive to her needs and act in attuned, loving and caring ways towards her. They set limits and give praise and encouragement in a very straightforward, ordinary way. There is nothing unusual about the relationship and it seems that the fact of her unclear status within the family unit has not currently significantly impacted on her or their ability to grow and maintain a meaningful ordinary relationship.
There is a wealth of information in the background papers and from my observations to suggest that W is a child who thrives on routine and structure, and who feels safer when she knows what is going to happen. It is possible that this need for certainty and knowledge is linked to her past experiences of being cared for by four different sets of people. It is also possible that this slight wariness is a function of living in circumstances, where there is an unspoken anxiety as her current carers are not able to fully assure her of her place in their family."
158. Dr Helps then addressed the potential risks to W of removing her from Mr and Mrs A:
"In line with the view of other experts, my opinions are finely balanced.
… I appreciate that a great deal has happened in the legal domain within the past three years but want to emphasise that at the very centre of this issue is a small, typically developing little girl whose need for certainty and stability are crucial for her ongoing positive developmental trajectory.
… In developmentally appropriate ways she is keen to emphasise how Mr and Mrs A are her family. In her descriptions of the pictures that we looked through, she at one point emphasised that she wanted Mrs A to be her tummy mummy. Mrs A handled this well and reiterated that [the mother] was her tummy mummy.
While I do not want to make too much of this particular encounter, I think that in trying to understand the messages that she is being given by Mr and Mrs A, she is trying to express what she would like. This is in the context of having a strong, meaningful, loving, caring and secure relationship with Mr and Mrs A.
In the short to medium term, the loss of the relationship with Mr and Mrs A and son A will be akin to a traumatic bereavement for W. Dr Willemsen made this point in 2015. W's relationship with Mr and Mrs A has only grown and developed over the past year and so the loss will be even greater for her now than it would have been then.
Symptoms associated with traumatic loss in young children involve separation distress, reactive distress and personal / social identity disturbance, distress over circumstances. Research suggests that the loss of a primary attachment figure at a young age (and in this context I refer to Mr and Mrs A as the primary attachment figures, although the foster carer … could also be considered as a primary attachment figure), is likely to be perceived by the child as inherently traumatic and pervasively disorganising and destabilising, given the absence of the carer's physical presence. There is not a great deal of evidence to show how young children develop after experiencing a traumatic loss and what the risk and resilience factors are.
There is also not a great deal of evidence to indicate how long such difficulties might last but it is very clear from a wealth of research that early trauma especially that including attachment breaches, has the potential to have a life-long impact on a person.
It is impossible to predict at this point whether and how W might be able to process the traumatic loss of Mr and Mrs A and son A and then start to form meaningful relationships with her birth family."
159. Turning to consider the potential risks to W of ceasing to be a member of her family of origin, Dr Helps said:
"Like most children who do not live with their birth parents, I am sure that as W grows and develops into a child and young person with a curiosity about the world, that her curiosity will also extend to her origins and to her birth family.
She will inevitably ask why she is not living with her siblings. She will inevitably want to understand more about the decisions of the Court. The way in which information is given to her will have the potential to dramatically affect her long-term psychological wellbeing.
The medium to long-term risks that W faces are the same as for any adopted child. In general terms, she will be at slightly increased risk for a range of emotional, behavioural and attachment related difficulties which have the potential to have a life-long impact. However it is in large part the nature and quality of the relationships that she has over her childhood that will determine her precise life-course."
160. In relation to contact, she said:
"Indirect contact with her biological family would be important to enable W to understand her origins and part of her identity. It would be for Mr and Mrs A to navigate this based on how W grows and develops in relation to understanding of her adoption.
I do not think that direct contact would be in the interests of W at present. It is always helpful for an adoptive child to know that there is the option of direct contact. Any carers therefore need to be alive to the possibility that direct contact might at some point take place. This can often feel like a rejection to adoptive carers, so Mr and Mrs A need to be prepared to manage any strong feelings are invoked by a desire by W to have contact with her biological family.
The ability of a biological family to accept and support a placement outside the family is very important in assessing whether and how direct contact might be helpful and supportive to the child in their developing relationships with their adoptive family.
Based on the information that I have I am not convinced that [the father] would be able to manage the incredibly difficult task of accepting and supporting the permanency of the adoptive placement in any direct or indirect contact with W. This may change in time and indirect contact may give an indication that direct contact might be beneficial for W."
161. During the experts' meeting, Dr Helps said:
"… in terms of the two potential routes for W, the route for adoption carries far fewer unknown risks than the route for reunification. I think one of the challenges in this case is what we can't do is test out reunification for W. There's no way of trying out to see if that works. That would not work for this little girl who really does need certainty."
162. Referring to contact, Dr Helps said:
"I think in any adoption situation, this is very difficult to prescribe indirect or direct contact. When the adoption order is finalized I think if the court is satisfied that Mr and Mrs A can be W's forever family then the court need to be assured that Mr and Mrs A will always hold W's best interests in mind. I think Mr and Mrs A are very aware of the importance of direct contact for W and – it's interesting, I'm new to this case compared to the other experts. I was of the impression that they would be able to make a decision that was in her interest in terms of the timing of direct and indirect contact. I was much less concerned that they would find that too difficult to do."
"… any direct contact would need to be very carefully facilitated by the local authority."
163. In answer to questions from Mr Feehan about W's reaction were she to be returned to her father, Dr Helps said:
"I imagine a child in that situation would feel incredibly powerless; they would feel that their emotional needs were being not paid attention to because they were being denied and I think that would be a very challenging, depressing position for a child.
… It is difficult to know. It is likely that, I think children in this situation, their behaviour goes in general terms one of two ways. She would either become extremely withdrawn and turn inwards or she would express her distress and trauma in a very overt way. So, that could involve behaviour that is very challenging, it could involve running away, it could involve trying to seek out what she is looking for.
… I think it will be a gradual process. There will be a very immediate physical longing for her current care-givers and then there will be a gradual experience that they are not there to look after her and that other people are attending to her basis care needs. I think it could take months, if not years, for her to fully appreciate that these changes are permanent in her life.
… This is a child who will be dealing with having lost three people whom she cares about very, very much, that is going to pre-occupy a huge amount of her emotional resource. I think because the arguments are so complicated, she will be well into her teens, if not older, before she can fully grasp the complexities of the way that decisions have been made.
… If she is unable to form a secure, attuned, meaningful emotional relationship with [the father] and her siblings, then the risk for her of going on to develop very significant psychological difficulties and interpersonal difficulties in the future is very, very high. If, as a person, you do not have, you cannot have your emotional needs met by other people in the world, then it is highly likely that you would go on to develop maladaptive ways of trying to get your needs met."
164. In relation to contact, she said this:
"There is a potential for difficulty if direct contact were to start and the reason I do not think that direct contact should be prescribed now is that direct contact, I think, needs to be organised at a time and in a way that suits W's needs and, also, takes into account the needs of, or the positions of the other adults involved and the other children involved."
165. Asked by Mr Feehan about Dr Blincow's view that the risk to W would be less if she stayed with Mr and Mrs A, Dr Helps said:
"Because in future she will have the cognitive capacity to think for herself. She will have had many years of stability that will boost her psychological resources, and that will stand her in good stead to face any sort of difficult information that she is given or that she finds out.
… There needs to be a process of the life-story work getting to a point where W has a level of curiosity that would be satisfied by direct contact, for it to happen.
Q Yes. Is it at all possible to put a broad timescale on that?
A I think it is very, very difficult to put a timescale on that and I would worry that pulling a number of years or months out of a hat would then become some goal to aim towards, which would not take account of her, the way that the next months or years go for her.
Q It was Dr Willemsen's view, and it is a view to a degree echoed by the A's through their social worker, that the sooner it can happily and, probably the better; would you accept that?
A I think it needs to be done in a timely way, but I do not, I cannot see what difference it would make in happening this year or next year for W.
A I can see the difference it would make for [the father], for [the mother], for the siblings, and of course how they cope with direct contact is a huge factor in how direct contact might go further along the line.
Q Yes. So, essentially, it is not something to be rushed into; it is to be taken appropriately and carefully?
166. In answer to Mr Bagchi on the same point, she said:
"I think it is really key that Mr and Mrs A have the power to make decisions about direct contact and that the biological family accept that Mr and Mrs A are the people who are in charge of W's psychological well-being. I think that is what is necessary."
167. Later, in answer to a question from Ms Bazley as to how the father would cope if W were returned to him, Dr Helps said:
"… my concern is how he would be able to be sufficiently emotionally attuned to her, given the immense trauma that she will experience, as well as continuing to be emotionally attuned and provide the quality of parenting he is doing to other three children."
168. And then later, again in answer to Ms Bazley:
"I do not see there as being any benefit for W in returning to her father's care at this point in her developmental trajectory. I think, as we talked about at the experts' meeting, there are risks on both sides. As I have answered earlier today, I think the risks of the move far outweigh the risks of staying where she is.
Q I am finding it hard to reconcile that with your opinion, which you have confirmed more than once in evidence today, that this is a fairly-balanced matter. You see no benefit to this child in being brought up [ … ]?
A It is always, in an ideal world, best to be brought up with one's biological family, if they can meet a child's needs. W has been brought up in another family over the past three or so years. Her attachment needs are such that they are with Mr and Mrs A, not with her biological family.
Q So, can we agree, then, that however attuned this father was, your perception is, "Well, because she has been with Mr and Mrs A and because she is securely attached to them, there are no benefits in returning to her family of birth and family of origin."
A I cannot see the benefits of that over allowing her to remain where she is, where she has been settled for a long time.
Q Yes, that is a different matter. You see no benefits, you can list no benefits to this child being brought up with her three full siblings who everybody says hold her as being part of their family, and with the knowledge that she is growing up without them?
A I can see the benefits in the abstract. I can see the benefits in terms of the love and care that her father and her mother and her siblings would like to give to her. For her, as a child who has been so settled and has grown up in an ordinary way in the past few years, for me, those things are more important in terms of the likely positives for her of doing well in the future."
169. Finally, in answer to Ms Fottrell:
"If W is told as a fact that she was unsafe with her birth family and that is where she was removed from, and then this child is encouraged to have direct contact with her family, that would be incredibly damaging for her. She will have a story of these people as unsafe. I think the narrative about the way in which decisions have been made over time is incredibly complicated and needs some agreement between the parties in order for her to make sense of it."
The evidence: the children's guardian
170. As I have already mentioned, the children's guardian, Steve Diver, was appointed in February 2016. He was therefore able to bring an entirely fresh pair of eyes to the case. He has great experience but made no bones about the fact that for him this case was unprecedented. His report is dated 31 August 2016. He addressed the father's care of X, Y and Z:
"The evidence regarding [the father, X, Y and Z] is consistent that at present he is providing good care for the children. Ms Gander and Mr Hatter provide reports that [he] is responsive to the children and is providing good enough parenting. [Y and Z] are making good progress at school. The issues which [X]'s school have raised are apparently being addressed with [his] support.
Mr Hatter makes a number of positive observations regarding [the father]'s care and abilities. I agree with Mr Hatter's observations regarding [his] ability to meet the needs of [X, Y and Z].
Dr Sarah Helps makes some positive comments about [him] but … questions his ability to "think and feel from the perspective of the other" and for that reason questions his ability to meet W's needs if she were moved from her current home to his care. Based on my conversation with him, I do not have evidence that [he] would not be able to have sufficient understanding of W's emotional needs.
In his report, Dr Willemsen makes a number of positive observations in relation to [his] abilities … "My concern would not be about his … abilities, but rather with W's ability to suffer the separation from Mr and Mrs A".
In his report … Dr Blincow states "The father is doing well in terms of his care of his 3 older children. There is nothing to indicate that he would not be able to manage a younger, 4th child in his care, although he may need to have additional external support". He goes on to say "However, the task in terms of taking on W's care now is much more complicated and therefore more challenging to his parental capacities".
I am therefore in accord with the experts instructed in this case that [he] is providing good care to [X, Y and Z]."
171. Turning to Mr and Mrs A, Mr Diver said this:
"My observations are that Mr and Mrs A are very good parents to W and their son. They are responsive to W on an emotional and practical level. They will pause our conversations to respond to her needs, whether that is for food, someone to play with or just because she needs a cuddle. They recognise her requests for attention and they have an instinctive understanding of how to respond. They also support their son's relationship with W. They are able to balance the needs of the two children in a manner which fairly supports their relationship with each other.
Mr and Mrs A have a good understanding of the development of W's attachment in the light of her history. They are able to describe how her early moves may have affected her and what they are doing and what she needs to feel secure with them.
Mr and Mrs A also have a good understanding of the importance to W's identity needs of her knowing about her birth family and her background. I have observed Mr and Mrs A beginning the process of supporting W in her understanding of her history. W is already able to talk about her "tummy mummy" and "[her father's name]". They have made photographs of W as a baby available to her to support this understanding. The photo albums were well used and W easily recognised the photos of her birth parents.
I have also spoken to Mr and Mrs A's son. He showed me a letter that he had written which states that he would be very sad if W left the family and he would like her to stay. He told me that these were his feelings and that he did not need to say anymore. Due to his distress when he was seen by Dr Helps I did not ask for any more from him."
172. In relation to W's attachment to Mr and Mrs A, he said this:
"In their respective reports, Dr Helps … and Dr Blincow … make positive comments about Mr and Mrs A and W's attachment to them. This is in accordance with my observations. When I first met W she looked to Mr and Mrs A for reassurance in a manner which is appropriate to her age. When given permission and reassurance from Mr and Mrs A she relaxed and within a few minutes she interacted with me and showed me pictures of her at kindergarten. When she was in need of attention she behaved in a manner which showed that she expected to be attended to. She easily came to Mr and Mrs A for attention and affection. This is an indication of the good quality of care she receives from Mr and Mrs A and her secure attachment to them."
173. Mr Diver then turned to consider each of the possible scenarios for W's future care:
"Firstly I will consider the scenario whereby W is removed from Mr and Mrs A and is moved to the care of [the father]. The experts who have reported in this case acknowledge that [he] is providing a good standard of parenting for [X, Y and Z]. I concur and have no criticism of [his] parenting. He is able to respond to the needs of his children and he is a good father. This scenario would have the benefit that W would grow up within her birth family. She would have a good understanding of her background and would have a relationship with her siblings.
However, when considering this scenario I have been most heavily influenced by Dr Blincow. In his report Dr Blincow describes W having such a significant negative reaction to being removed from the only family she knows or is able to remember, whom she views as her Mummy, Daddy and brother, that it would have a lifelong negative influence on her. Her distress would cause short term effects that could become long term effects because she would be so unhappy she would not allow herself to be parented. This would test [the father] to a level which he has not been tested before and therefore becomes an unknown. The effects on [X, Y and Z] are likely to be negative in the short term, caused by the distress of the little girl that they have wanted to live with them for so long. This could affect W's ability to make a place within the family and could lead to significant negative reactions for the whole family. As Dr Blincow suggests it would be a high risk to her emotional development in the short, medium and long term."
174. He continued:
"The second scenario is that W remains in the care of Mr and Mrs A. In this situation there are not the same short term risks. In most respects her life will continue as it has been. The life story work which she needs can be furthered if there is certainty for her future. She will continue to live in her secure home with what she knows as her family.
The risk is that at some point in the future she will want to know why she is living with Mr and Mrs A, why she is not living with her birth father and full siblings, and why she doesn't see her mother. In this scenario the risk is that W will not feel part of Mr and Mrs A's family and will reject them leaving her without security. This is described by Dr Willemsen in his report. This is a possibility and is a risk, however, it is my opinion that this situation can be ameliorated by direct contact. If W has direct experience of her father, her mother (when [she] is well), and [X, Y and Z] this crisis is less likely to happen. She will still have questions but she will also have the ability to get answers."
175. Mr Diver then addressed the balance:
"In my view, the risks of the first scenario are too great and are not able to be lessened. Social work and CAMHS will be able to do a limited amount to help but they can do little to change the distress of a little girl removed from her primary care givers at this stage in her childhood.
The possibility discussed by the experts that W could be removed to foster carers as a bridging placement before moving to the care of [the father] would, in my view, multiply the risks described above and would be the worst of all possible scenarios.
As I have said, it is my view that direct contact would support W's future wellbeing if she continues to live with Mr and Mrs A. In my view direct contact should begin as soon as W is emotionally ready for it. The provisos would have to be that the birth family accepts that W will be growing up with Mr and Mrs A and will not undermine her home with them. In order to test this I would recommend a period following the end of these proceedings when both families are able to come to terms with the future. [The father, the mother], and Mr and Mrs A should then meet. My experience of them is that they are reasonable people who are able to put W's needs first. With social work support, thought should then be given to direct contact taking place. If necessary further CAMHS support should be employed to advise on the timing.
Remaining with Mr and Mrs A represents the least amount of risk for W. Adoption is the only situation in which W will have the security that she needs. For this reason I recommend that W is adopted by Mr and Mrs A and that direct contact takes place as described above."
176. Mr Diver's oral evidence was helpfully and accurately summarised by Mr Bennett in his closing submissions:
"He was able in his oral evidence to accept, when put to him by [the father's] Counsel, that there were many positives in his report and assessment of the Father's care of the three children at home with him – he described them as lovely children. Had he not been visiting for work, he would have seen nothing of concern. He formed a different view from that of Dr Helps about [the father]'s ability to understand and anticipate the problems which W would have were she to move to his care. When asked about Dr Blincow's evidence being based on a theory, Mr Diver said that this was so but that theories are there for a reason and inform social work.
It was not Mr Diver's recommendation in his oral evidence that [the father] would be able to manage the transfer from W into his care despite accepting that [he] had shown emotional intelligence and great sensitivity. Despite it being suggested to him that Dr Willemsen had said that he considered that the plan would work, Mr Diver said that Dr Willemsen was not saying that it would not be without difficulties, and Mr Diver said that he found Dr Blincow's evidence very persuasive and that it chimed with his own experience.
His recommendation would not go the other way if there were no direct contact. He accepted that there were difficulties in constructing a narrative but believes that even a child can understand the idea that three judges all thought different things and that because W was so happy and doing so well, the last judge decided that she should stay where she is but get to know Tummy Mummy and Daddy [father]. He expressed the hope that by the time W began to ask questions, contact would be taking place, he envisaged at once or twice a year.
Mr Diver accepted that he had placed much reliance upon Dr Blincow's evidence but did not accept that his own analysis of risk was based purely upon his acceptance of Dr Blincow's evidence but he found that the most persuasive. He considered that the risks could not be ameliorated by the support package because no one can get into a mind of a child of this age and simply tell her that it is going to be OK. The wraparound support would assist but would not address the distress for the child of the strange situation, the loss of her primary carers and the stress of not knowing where she was.
Mr Diver accepted that the Re B/Re B-S test was a high one. He accepted in answering questions from the President that W would have no conscious memory of life before the As, that she sees the As as mummy and daddy in the same way as any 4 year-old and said that she relies upon mummy and daddy for all of her needs – it's a question of survival and a move would be taking all of that away from her. Mr Diver considers that problems would emerge very soon, perhaps the first morning of waking up in a strange bed, or at the end of the second day, not weeks or months down the line.
Mr Diver spoke of the importance of direct contact and how that would, he believes make it much easier for her. It might be a positive that she wants to spend time with her birth family, whereas Mr Diver said that Mr Hatter was speaking as if she were going to be cut off from them forever, which is not the case."
Closing submissions: Mr and Mrs A
177. Mr Feehan's central submission was clear and simple:
"As the case has continued it has become very clear that the choice for the Court is between two outcomes which each carry risks, however it is submitted that although the balance to be struck is in some senses a fine one there are numerous reasons to arrive at the view that a choice of W remaining with the As is undoubtedly the better outcome for her at this stage and into the future.
The risks are of the likely outcome of the impact on W caused by a move now from her primary attachment figures to her father versus the impact (probably in her early teens) of those questions of identity which will arise for her as an adopted child.
In short, it is submitted that the risks of the former so greatly outweigh those of the latter that an objective analysis makes the risk of a move now quite insupportable. The gravity of the present risk is very plain and although the father asserts that he will be able to manage it our submission is that he clearly cannot see the implications for himself and his children of such a course."
178. He sought to make that good by reference to a carefully prepared 'balance sheet' setting out the 'pros and cons' of each of the only two viable options and, in relation to each matter, identifying the degree of harm or benefit (ranging from 'low to moderate' to 'catastrophic') and the likelihood of it happening (ranging from 'possible but unlikely' to 'very likely'). Thus, he submitted that, if W were to be adopted, there would be a 'possible to likely' risk of challenging behaviour in adolescence giving rise to a 'moderate' degree of harm. By contrast, if W were to be rehabilitated to the father, there was a 'real possibility' of a breakdown leading to 'catastrophic' harm.
179. In relation to Dr Blincow, Mr Feehan's submission was:
"Dr Blincow is a medical professional of very considerable expertise and experience who was firmly of the view that a move would be severely damaging. His assessment of every relevant person, including all of the children, was thorough. His sympathy for the father and appreciation of his parenting skills was clear, nevertheless he would not be shifted from his view that to move this child would be quite wrong."
He submitted that some of the criticism of Dr Helps was unjustified and unfair. He characterised Dr Willemsen's evidence as "plainly thoughtful, even agonised" but suggested that "he seemed to be at pains not to make a firm recommendation either way." Likewise, he said, Mr Hatter had given evidence "in the same understandably anxious vein", but again without making any recommendation either way.
180. In relation to contact were W to stay with Mr and Mrs A, Mr Feehan submitted:
"… all the experts also felt if W were to stay with the As then contact between W and her birth family should take place and would mitigate, perhaps very significantly, any risk of identity problems in adolescence. Dr Willemsen described it as "the best thing for this child" in terms of addressing that risk. None of the experts doubted the genuine commitment of the As to that process. The experts and the Guardian all accepted that in so far as such problems may occur to W in future her firm attachment to the As coupled with that contact would give her the best chance of overcoming any emotional or psychological difficulty. In short, those were risks for which she could be prepared unlike the risk of an immediate move for which she cannot be prepared and which it may be impossible to reverse."
181. By way of overall conclusion, Mr Feehan submitted it is:
"… clear that the great weight of the expert and social work opinion favours the status quo. It does so not in a lazy or ill-considered way but in a way that is measured, quantified and specific. A move now carries a risk of very serious psychiatric injury to this child … W cannot be prepared for that move: it would simply happen to her and no amount of loving help may allow her to recover. On the other hand if she remains with the As there will be years of loving care from her primary attachment figures, contact and careful preparation for the possible difficulties ahead. All of the experts had some measure of confidence that such would have a significant effect in reducing her likely problems. It is submitted that the balance is firmly in favour of an adoption order and that the As can have the confidence of the Court so that a contact order is unnecessary."
Closing submissions: the local authority
182. On behalf of the local authority, Mr Bagchi drew attention to the degree of agreement between the experts on many of the issues, for example, that W had formed a secure attachment with Mr and Mrs A, that if she were to move to her father it would be a question of forming an attachment rather than a re-attachment (Dr Willemsen's view about an "implicit memory" not being shared by Dr Blincow or Dr Helps), that the father was providing good parenting to X, Y and Z, that the mother and the father, despite their past differences and difficulties, have found a way of working with each other, and, to a greater or lesser extent, that there was potential benefit in contact were W to stay with Mr and Mrs A, albeit, as he pointed out, that no expert was recommending a contact order. Conversely, as he pointed out, Dr Helps was alone in her view that the father could not 'mentalise'.
183. Mr Bagchi submitted that neither Dr Willemsen nor Mr Hatter had at the end of the day made any recommendation. In relation to Dr Willemsen, he made an important point: Dr Willemsen's conclusion that the father was attuned despite his adverse experiences was "pivotal" in his change of view. But, Mr Bagchi submitted, this may not be determinative if I decide that the pivotal issue is how W responds to any change of carer regardless of how skilled the new carer is. In relation to Dr Helps he submitted that her evidence, for example in relation to the potential significance for W of her loss of attachment to Mr and Mrs A, was not affected by her misunderstanding about the 'sofa' incident. In relation to Mr Hatter, Mr Bagchi drew attention to his acknowledgement that the uniqueness of this case renders the research on which he relied less useful.
184. Dr Blincow's evidence, he submitted, was balanced and in overall terms persuasive; Dr Blincow, he said, was an impressive and persuasive witness whose opinions should carry weight.
185. In conclusion, Mr Bagchi submitted that:
"… the balance of risk firmly militates against W's removal from the As and her placement with [the father]. Each of the experts to a greater or lesser degree agree that if she were to move away from the As to her father:-
a) W will suffer initial shock, distress and confusion;
b) This would develop into a sense of loss of the As akin to a bereavement;
c) Cognitively she would not be able to understand the reasons for such loss;
d) Notwithstanding the quality of care and support she receives there is a clear risk that she would not be able to form a secure attachment to her father;
e) If that were to be the case she could retreat within herself or manifest rejecting behaviour towards the father and family;
f) There was a risk of the 'emotional void';
g) If she were not able to form a secure attachment to her father the consequences for her emotional development would be serious and life-long;
h) Some of the experts agreed with the notion that if her placement with her father were to fail this would be a catastrophe for W and render the identification of a further placement to be very difficult and in and of itself fraught with risk because of the loss of the As.
So it is submitted that there is a clear but unquantifiable risk that W's attachment with [the father] would not be secure and that if that were to be the case the implications would be devastating for W.
Furthermore, the court cannot be confident that in this scenario that the mitigating feature of the As involvement in the process of transition would be available.
This scenario is to be contrasted with the assessment of risk if W were to remain with Mr and Mrs A. Here the risks to W's emotional wellbeing measured over the short and medium term are small. Over the longer term, once again it is difficult to predict whether W will question her placement as she begins to gather an understanding of her personal history. The court is invited to accept Mr Diver's analysis of the statistics of adoption breakdown in preference to those of Mr Hatter whose evidence seemed confused on this aspect. Even if the incidence of breakdown is as high as 9% (which it does not appear to be), self-evidently this means that 9 in 10 placements succeed.
What is known, however, is that there are a series of factors which mitigate against the risks of adoption breakdown. In particular:-
a) W will be in a stable loving household with parents who are attuned to her emotional needs, have heard and digested the expert evidence and read the relevant research and would thereby be prepared for any difficulties;
b) W will have the benefit of a generous package of support from the Adoption Service to include private therapy and support for W should she ever need it as indeed will Mr and Mrs A. The guarantees of support offered by the local authority will be included on the face of the court order;
c) W will benefit from a coherent narrative of how she came to live with Mr and Mrs A. The narrative will be prepared with the best available advice from legal and other sources drawing upon the judgment to be delivered and the chronology of events. It will be a comprehensive document which can be drawn on in the early part of W's life to relate her life-story in an age-appropriate way;
d) There is a very good chance that there will be indirect and direct contact between W and her siblings and [the father], who, if they are able to support her placement, would become part of W's life sooner rather than later thereby enabling her to better sense of her story and mitigating the risk of confusion and distress as she gets older.
In this way it is submitted that the risks are smaller and more manageable for W if she remains with Mr and Mrs A.
This evaluation of risk provides the most weighty factor in the balance of W's overall interests. It renders the making of an adoption order 'necessary' in her best interests and proportionate to the risks she faces in either scenario."
Closing submissions: the father
186. Ms Bazley submitted this overview of the expert evidence:
"A number of themes emerge from the expert evidence:
a) All but Dr Helps consider that the father is a highly attuned parent who is able to 'mentalise;'
b) All but Dr Blincow consider the ability of the receiving carer (with appropriate support) to manage W's distress is crucial;
c) All agree that this is a unique situation, in which there is no template to draw upon;
d) All agree that it is not possible to calculate or even predict with any precision, the likely reaction of W in either situation;
e) All agree that there is risk in either scenario;
f) All agree that, with reunification, the likelihood is that W would experience considerable distress, probably not immediately but on realising that she was not going to return to Mr and Mrs A's care;
g) All agree that, if she can be helped to make a secure attachment to the father, the medium and long-term risks disappear.
h) All experts agree that, if adopted, W would require a truthful narrative as to why she was the only one of her siblings to be removed from and brought up outside her family.
i) All experts agree that this is a very troubling case.
j) All but Dr Helps consider that it would be very hard to devise a narrative which W could accept in relation to how she came to be adopted in all the circumstances of this case."
187. As a preliminary to her evaluation of the experts' evidence, Ms Bazley submitted that the unfairness to which I have already referred:
"… has three key effects: (a) it has skewed and continues to skew assessments of the father by the local authority and others to disproportionately favour the placement of W outside of her family, (b) it is an indelible part of her life, her story and her narrative which adds to the complexity and risk of making an adoption order and (c) the court must be particularly cautious to ensure that orders are necessary and proportionate against the backdrop of such unfairness where that unfairness will have, in material – albeit perhaps subtle – ways, distorted the evidential picture.
188. She also made this important point:
"It is common ground that it is not possible to calculate or even anticipate with any certainty how W would react to her story if adopted or to removal from Mr and Mrs A's care if reunited with her family of origin. All the experts can do is speak in terms of probabilities and likelihoods."
189. In relation to the experts, she dealt first with Mr Hatter. She submitted that:
"Mr Hatter's evidence was thoughtful, balanced and professional. He is the only independent expert with significant practical experience of moving children and has the benefit of very significant experience of adoption, including adoption breakdown. He was clear that the problems for children who suffer placement disruption or breakdown are severe and life long. It will be submitted that the court is able to attach significant weight to Mr Hatter's evidence … Mr Hatter gave invaluable evidence from the social work perspective, which chimed very much with Dr Willemsen's evidence. It will be submitted that in light of the extent and breadth of Mr Hatter's relevant experience, considerable weight should be attached to his opinions."
She pointed out that Mr Hatter had not gone so far as to postulate a "catastrophic" outcome if W were returned to the father. On the contrary, he had identified a number of protective factors in respect of a reunification. He was, she said, very clear that the trauma and risk involved in a reunification had to be balanced against significant risks if she remained with Mr and Mrs A – the risk of an adoptive placement breaking down and significant concerns as to how direct contact could or would work.
190. Turning to Dr Helps, Ms Bazley relies upon her mistake in relation to the 'sofa' incident, and her characterisation of this as simply "inaccurate language", as demonstrating what Ms Bazley calls her "careless approach." More seriously, Ms Bazley continued:
"… the most serious error in Dr Helps' assessment is her dismissal of the father as someone who lacks the 'emotional sensitivity' to successfully 'guide W through the transition to living with him and her siblings' and is unable to 'mentalise'. This sets Dr Helps apart from all the other experts and professionals, who are unanimous that this is a father, who is very capable of seeing things from the point of view of others; most say he has demonstrated highly attuned parenting of the older three children over a significant period of time. No one who witnessed this father giving evidence could doubt his emotional intelligence and ability to 'mentalise'. It is submitted that there are only two alternative conclusions to be drawn from Dr Helps' assessment in this regard and generally:
a) Her assessment was careless and incompetent; or
b) Having closed her mind to the task in hand, she was seeking a basis for justifying a conclusion reached before she had met the father.
The father submits that the latter is more likely and fits with the slant, which the father said Dr Helps has given to what he had said. His example of her missing the point of what he said and putting a negative spin on his remark that 'failure is not an option for me' is indicative of a close-minded approach. Similarly, it fits with an approach that, if she remains with Mr and Mrs A, the 'medium to long-term risks that W faces are the same as for any adopted child'.
191. Finally, Ms Bazley invites me to conclude that:
"Dr Helps approached her assessment with a closed mind, failing to perform to the standard which parties are required to expect of independent experts … The approach of Dr Helps to her task was dogmatic and closed-minded. Her contribution was shallow and singularly unhelpful in such a unique, complex and difficult case. The father will submit that the court cannot safely attach weight to her opinions."
She characterised the approach of Dr Helps as "fundamentally flawed" and submitted that "no weight can be attached to any of her opinions" and that she had "acted in breach of the duties of independent experts reporting to the court." In this connection she referred me to what Dame Elizabeth Butler-Sloss P had said in Re U (Serious Injury: Standard of Proof); Re B  2 FLR 263, para 23(iv).
192. In relation to Dr Blincow, Ms Bazley submitted that what set him apart from all the other experts and professionals was his opinion that, although it was not possible to calculate the risk to W if she were reunited with the father, it was not manageable. Also problematic, she said, was his insistence that the qualities and characteristics of the father as the receiving carer are irrelevant and what she said was his almost complete failure to engage the difficulties surrounding any attempt to create a truthful narrative for W. She summarised matters as follows:
"Dr Blincow's evidence is … problematic. He clearly relied on pure attachment theory and regarded everything else as irrelevant. This meant that fact that W would be returning to her family, the highly attuned, reparative parenting which the father is capable of and all the factors which other experts considered would mitigate W's distress were to be ignored. This result is that, in order to prefer Dr Blincow's evidence, the court would have to accept both his analysis of likely harm in the event of a reunification as being at the top end of the scale and his apparent belief (although his evidence was somewhat confused and contradictory about this) that nothing could be done to mitigate that harm, the nature and qualities of the receiving carer being irrelevant. It is respectfully submitted that the court is unlikely to find such an illogical, theoretical approach to be persuasive."
193. She added:
"… the court would require cogent evidence of the 'catastrophic' impact anticipated at some points in his evidence by Dr Blincow, in order to be satisfied that W's welfare required that she be adopted. There is here no credible evidence that W would so wholly fail to make an attachment to the father to the extent that her ability to make any kind of attachment with anyone would be compromised. Accordingly, it cannot be said that the high threshold for this degree of interference is justified on the basis that 'nothing else will do.'"
194. Unsurprisingly, Ms Bazley placed the greatest weight upon Dr Willemsen. She drew attention to his view that it would be "extremely difficult" to find a narrative that W could accept, to his evidence in relation to W's implicit memory of positive contact with her parents and siblings – "she has those memories. There is no doubt about that" – and the need to have regard to the biological link when considering the weight to be given to attachment theory, to his very positive views about the father's abilities, and, most important of all, to his view that the rehabilitation plan "would" work and that it was "the best way forward."
195. She went on:
"Dr Willemsen was the only clinician able to provide the court with a proper clinical balance. His evidence was intuitive, thoughtful and reflective. He fully recognises the risks inherent in an adoption and in an unsuccessful reunification. He balanced those risks carefully and persuasively. Although Dr Willemsen did not presume to answer the central question, his opinion was unequivocal that a reunification of W to her family would work. It is clear though that the balance as he analysed the case came down in favour of W's reunification with her birth family: "Q. Do you think it would work? A. I do. You can never rule out all the risks but I think that this plan, it is the best way forward." This is cogent evidence on which it is respectfully submitted the court should feel able to rely."
196. Ms Bazley submitted that the "fundamental flaw" in the plan for adoption is what she calls "the exceptionally difficult narrative", coming to terms with which is, she says, "essential to W's sense of identity and self" and which is "unlikely to be accepted by her as sufficient reason for her placement being away from her family of origin." On the other hand, a return to her father "would give her closure to her story and very little narrative would be necessary in order to explain her absence from the family." Although if W is returned to the father she is likely to (though she may not) experience significant difficulty in the short term, this can be mitigated and ameliorated by the optimal transition plan of professional help and therapeutic support which will be available.
197. Pulling all the threads together, Ms Bazley submits that the making of an adoption order would be "highly problematic", that the expert recommendations can take the court only so far, that Mr and Mrs A have fallen "decisively short" of demonstrating, on the basis of cogent evidence, that nothing sort of adoption will do and, on the contrary, that the welfare balance comes down firmly in favour of W being reunited with her family.
Closing submissions: the mother
198. Ms Jenkins submits that the behaviour of the local authority and the failures of the court system have left W with a "tragic history." The truthful account as to why she is with Mr and Mrs A is, Ms Jenkins says, almost unbearable for everyone, in particular W, to understand and accept. She is very critical of the behaviour of the local authority, submitting that it has done everything it can to shore up the position of Mr and Mrs A and the case for adoption and contrasting its previous behaviour with the belated concessions and the offer of a support package which emerged only after the hearing before me was under way.
199. Ms Jenkins identified a number of issue the experts were agreed on: this is a highly complex unique and worrying case; W's secure attachment would provide some potential benefit to her were she to move to her father's care; the attunement of the carer was an important (in the view of Dr Blincow a mitigating) factor; at some point W would show distress, but one could not predict the extent of it in either the short, medium or long term.
200. Ms Jenkins submitted that I can and should place little or no reliance on Dr Helps. She submitted that Dr Helps's view that the father is not able to 'mentalise', at complete odds with every other professional witness, is a "fundamental clinical misjudgement" which must call into question her assessment generally. She submits that Dr Helps was inaccurate and shallow in her assessment, had made up her mind after meeting Mr and Mrs A, and that I am accordingly entitled to reject her assessment.
201. In relation to Dr Blincow, Ms Jenkins submits that the difficulty with his assessment is that he relies almost exclusively upon attachment theory and that his concerns are based on the view that the immediate risk to W of returning to her birth family outweighs everything else. She drew attention to how little weight Dr Blincow seemed to attach either to the blood tie or to the difficulties of a truthful narrative for W. She submitted that:
"… his theoretical approach to his assessment taking only attachment into account, fails to consider the broader and more nuanced picture for W throughout her whole life. Whilst the more obvious risk to W is the short term risk of removal, her difficult history and life narrative is just as relevant if not so immediately measurable. The assessment of short term trauma is not the only consideration. Caution is therefore urged before accepting Dr Blincow's recommendation that the risks to W are greater if she returned to the care of her father. It is impossible to predict how she will be affected by either outcome."
202. Ms Jenkins invited me to accept Mr Hatter's concerns regarding the long term risk to W of her history (it is difficult to see how she can be given a true account which would not destabilise her), about how difficult it is to predict the risk to her in future, and what he saw as the significant risk of a potential breakdown in her placement with Mr and Mrs A.
203. Ms Jenkins likewise invited me to accept what she referred to as Dr Willemsen's careful and thoughtful evidence:
"… his balanced clinic view based on knowledge of the parties, his detailed knowledge of the background, his knowledge of adoption, his clinical experience and consideration of research is to be preferred to the other psychological/psychiatric experts in this case who paint an unduly pessimistic view of any rehabilitation plan based on attachment alone and short term risk. Dr Willemsen considered all aspects of this case rather than the rather narrow theoretical reliance on attachment theory of Dr Blincow. It was clear that his exceptional understanding and knowledge of all the issues in the case, and his assessment of the parties and W influenced his thinking and allowed him to draw the conclusions and recommendations he made. He was also clear about how he could assist to make sure the plan worked."
204. She submitted that Dr Willemsen took a more holistic approach to the assessment of risk than either Dr Blincow or Dr Helps. She pointed to the importance Dr Willemsen attached to the biological connection and to his concerns about the narrative.
205. In relation to Mr Diver, Ms Jenkins observed that it would have been helpful if his report had contained both consideration of the various 'welfare checklist' matters and a full Re B-S analysis. She suggested that he has simply opted for the status quo without properly considering and analysing the importance of the blood and sibling relationships, the difficulty of W's history, the narrative and how she will be affected by it, and what she suggested was the real potential for adoption breakdown.
206. At the end of the day, Ms Jenkins's submission was that:
"adoption and dispensing with the parents' consent to that adoption is not in Ws best interests throughout her life. In light of all of the above and applying the legal framework suggested, it is hard to see how nothing else will do but adoption for W. Whilst not wishing to underplay the risks to her of a move at this stage to her father's care, it is not clear how significant those risks really are when compared to the longer term risks that arise from her placement, with the A's, her impossible life story, potential difficulties regarding contact, and W's long term sense of identity. The court can be assured that all the experts consider that the package of support is such that it will ensure the best possible outcomes for W in the event that she lives with her father … The sensitive attunement of the father must be the most significant factor in allowing the court to consider that such a plan will work. Importantly, such a move would also bring closure to W's difficult story, that she is now back with her birth family where she belongs. For all these reasons, it is submitted that the welfare decision firmly falls on rehabilitation of W to her father."
Closing submissions: X
207. Ms Fottrell identified the decision for the court as being:
"…in essence is a choice between two families each of which are realistic placement options for W now and for her minority."
The difficulty in making that choice in this uniquely complex case:
"is exacerbated by the lack of clarity as to the history of the case itself and the resulting plurality of narratives which are competing with each other to justify a placement decision. Both families can care for W. She has a connection to each family which is such, that if she is placed with the other family, the continued impact of the connection to the family from whom she has been separated in and of itself will present a risk to her emotional well being and development."
208. Ms Fottrell continued in a lengthy passage which merits citation in full:
"It is clear from the evidence in this case that there are risks of emotional harm to W if the application is granted and risks of emotional harm if it is not. It is common ground between the professionals working with the family and the lay parties that the case is finely balanced. The Guardian noted in oral evidence that 'I have been trying to pull out common themes in other cases, theoretical understandings, there is always a counter-argument, another piece of evidence. Unlike the other experts in these proceedings though, I have to make a recommendation'. This, as well as his more general description of how hard he found this case, exemplifies how finely balanced his view is. The point was also made by Keli Reains in her oral evidence, when she said "this is a really awkward situation for everyone, there are no winners or losers in any case. It's not easy coming to work, I can talk myself into both routes". Mark Hatter said it was the most troubling case he had come across in 30 years of social work practice.
The final positions of the experts are as follows; Dr Blincow and Dr Helps consider that W should remain where she is and be adopted by the As, Dr Willemsen considers that the rehabilitation plan would work and should be put into place, and Mr Hatter did not feel able to come to a view either way but he identified what appeared be equivalent risks from each placement.
On behalf of X it is submitted that the following core issues have emerged;
i) There is a risk of emotional harm to W if she is returned home to her original family
ii) The nature of that risk is short term and it cannot be quantified
iii) It is primarily related to the breaking of her attachment with her primary carers
iv) As to whether it presents a medium to longer term risk is dependent on a range of ameliorating factors including her capacity to transfer her attachment to the father
v) Most prominent is the capacity of the father to provide attuned, sensitive and empathic parenting
vi) An extensive support package is proposed from professionals to assist in the transition
vii) If W remains with Mr and Mrs A she will continue to develop emotionally in their care
viii) There is a risk of emotional harm arising from her knowledge of her life story which is uniquely complex, which may occur as early as 6 or 7 but is highly likely to occur when she is in early adolescence ie 11 or 12 years
ix) This disruption could be so extreme as to result in a breakdown of W's placement with Mr and Mrs A – even at its lowest it is likely to cause her emotional harm.
In evaluating the benefits and detriments of either placement the Court has to weigh the risk of harm attached to each and consider the extent to which it can be quantified and its impact ameliorated. None of the experts have been able to come up with a useful analogy within which to frame the risks in respect of either of the two placement options. The reality is that both options may represent a risk to W's psychological well-being for the rest of her life. In view of the unique circumstances, neither the theory nor the experience of any of the professionals takes the court very far in terms of a conclusion as to what the likely outcome of either option will be for W."
209. In her analysis of the expert evidence, Ms Fottrell began with Dr Helps. Making much the same points as Ms Bazley and Ms Jenkins, she submitted that Dr Helps's evidence is troubling, that there are "obvious deficits" in her preparation and analysis, and that I can attach little if any weight to her opinion. She submits that there is the further problem that other experts and professionals have relied on her conclusions without recognising the defects in her approach (none of them, for example, picked up on her error in relation to the 'sofa' incident).
210. In relation to Dr Blincow, Ms Fottrell pointed out that his evidence was focused on the theory of attachment:
"There are two central issues with Dr Blincow's reliance on attachment theory in this case. The first is the unique nature of the circumstances of this case. There are multiple ways in which the case differs from the more 'normal' adoption case and it is submitted that in itself this diminishes the predictive power of attachment theory. Dr Blincow has not taken sufficient account of this aspect.
The second issue is that attachment theory is not helpful when evaluating the risks to W in the longer-term. In that sense, it makes it very hard to compare the risks of W remaining with the As with the risks of moving back to the care of her father. Dr Blincow however has carried out a direct comparison of risk … which is hugely problematic as it is not a comparison of equivalent risks."
211. She continued:
"The approach of Dr Blincow is flawed for the following reasons;
i) Dr Blincow is over-reliant on a theoretical analysis of risk which leads him to the view that the disruption of the primary attachment to any child of W's age would inevitably lead to a high level of short and long term harm and psychological damage.
ii) He does not identify anything in W's particular make up or functioning which supports that general assertion
iii) His analysis of risk is as to likelihood only and does not include any consideration of how it can be ameliorated
iv) His quantification of risk is speculative
v) He ignores his own observations that if she can 'get through' the first 6 months to a year and develop an attachment to the father the risk can reduce and may disappear
vi) His failure to attach any weight to the capacity of the father to reduce or manage the risk is striking and undermines his overall analysis
vii) Dr Blincow does not undertake a balancing exercise as to risks if she remains with Mr and Mrs A
viii) There is a general sense that Dr Blincow did not grasp or appreciate the unique nature of the case – although he had never encountered a similar set of facts or history."
212. In contrast, she submitted, Dr Willemsen undertook a much broader analysis of risk. She continued:
"A real difficulty in this case is that it is impossible to predict whether a move to the father will cause an attachment difficulty for W, never mind being able to predict which attachment difficulty she may have. Neither Dr Helps nor Dr Blincow appear to have recognized or appreciated this. Both experts by engaging in a reductive analysis as to risk and its manageability which do not assist the Court to weigh the risks and undertake the balancing exercise required by s.1 ACA as per Re BS. There is a linear quality to the analysis by Dr Blincow (and Dr Helps) in that it focuses on her current placement which was considered to be so impressive that the loss of it was viewed as intolerable. This view caused each of the two not to complete the risk evaluation.
In contrast both Dr Willemsen and Mr Hatter engage in a more complete evaluation of risk which includes a proper and full analysis of risk if she remains in placement. This approach is more holistic and provides the Court will a fuller and more careful balancing exercise as to the decision on placement."
213. Ms Fottrell identified the narrative as a key issue in the case, albeit one on which the experts' views differed: for Dr Blincow it did not feature prominently in his thinking, for Mr Hatter and Dr Willemsen it was potentially fatal to her psychological stability in adolescence and adulthood. The factual and legal history of W's case are, she submitted, the uniquely complex feature of it. It will, she says, be a challenge for W at any stage to interpret the narrative of her life – the importance of the narrative for W herself cannot, she submits, be overstated, because she requires a framework within which to interpret the reality if she is adopted. In contrast to the 'usual adoption', the narrative is largely unpalatable, "the central fact being her separation from a good and loving family." As Ms Fottrell put it, "The systematic failure which underpins the narrative is disturbing to any observer never mind the subject child herself." She continued:
"All of the professional and expert witnesses struggled to identify the key elements of W's story. Each was unable to narrow down the core facts which W would need to know and understand. It was striking that they ranged from completely underplaying the significance of the narrative in the case of Drs Helps and Blincow to the sense of deep foreboding expressed by Mark Hatter who considered it largely unpalatable to any child to learn the true and accurate details of how she came to be living with Mr and Mrs A."
214. Ms Fottrell asked "what is the narrative?" before concluding, after a careful analysis, that it is difficult to identify where it should begin and end. She submitted that the risks of damage to W's development and psychological well-being are inherent in the narrative itself. After examination of various examples, she continued:
"The examples illustrate key challenges around the narrative, including the following;
i) The facts remain unclear and are vulnerable to subjective interpretation and recollection
ii) Mr and Mrs A continue to expect that this case is like other adoptions in that W was taken from her parents for her own safety and that in that context consider her 'safer' with them
iii) There is a temptation which is understandable in human terms to retreat to a simpler narrative – if W was removed for her 'safety' and remained 'safer' with them – then the need for adoption can be understood
iv) Dr Helps observed that to an extent a narrative in which W was 'unsafe' was 'easier'
v) It is puzzling but illustrative of the subjective nature of the narrative that Mr and Mrs A did not consider the factual error by Dr Helps to be fatal to her recommendation or that it was not challenged on their behalf
vi) A similar observation can be made of the LA – who distanced itself from the criticisms of Dr Helps by the birth family and sought to rely on her evidence notwithstanding her complete distortion of the key facts
vii) There was reluctance by the LA to criticize Mr and Mrs A's adherence to a false narrative namely that W was 'safer' with them – even if that was oversight or misunderstanding by the applicants
viii) Social workers including Ms Reains who has experience working with adopters struggled to accept that they had a role and responsibility to challenge Mr and Mrs A's interpretation of the narrative.
It is impossible to conceive of circumstances in which subjective interpretation will not contaminate or dilute the narrative. Mr and Mrs A are not robots. They have their own view which are set out above. At times it has been suggested on their behalf in presenting their case that there continue to be deficits in the father's parenting of his three older children. They will be left with a significant burden to convey a 'narrative' where it does not accord with their own recollection or interpretation of history. Whether they will hold on to their own subjective recollection in the fact of anger, opposition and possibly rejection by W is an unknown risk."
215. Having pointed to the concerns of Mr Hatter and Dr Willemsen as to how Mr and Mrs A would 'manage' the narrative, particularly in adolescence, she continued:
"The narrative issue is the unique element of this case and presents a risk to W's emotional well being to the extent that it could in and of itself cause her psychological harm. The following issues are relevant;
i) The temptation to deviate from the 'agreed' narrative will remain present if W has questions about parts of the story which are particularly hard to understand.
ii) A distortion of the narrative would be psychologically damaging to W.
iii) The ISW noted that the two really challenging parts of the narrative are the legal process and the role of Mr and Mrs A in that which W may not be able to accept and how she can be emotionally contained.
iv) W's disquiet is likely to be increased by direct contact rather than reduced by it because of the situation of her siblings who are thriving with their father
v) There is a possibility of anger from W toward Mr and Mrs A, professionals and the 'system'
vi) W will be alone dealing with this issue, as neither her adoptive parents or brother are similarly situated – neither are her birth siblings or her parents.
vii) No professional involved in this case had experience of an adoption in which older children had been 'left' at home and were thriving in the parent's care
viii) No professional had experience of a case in which the decision as to the making of the adoption order was so finely placed
ix) Two of the social work professionals – the ISW and the guardian expressed a view that the local authority should have reconsidered W's case after the Court decided all three older children should remain at home – and before W was placed with Mr and Mrs A
No professional in the case had the experience of working with a child who had this narrative. There was a significant degree of misplaced confidence about the manageability of the narrative for and by W and her adopters."
216. Ms Fottrell pointed to Mr Hatter's evidence that one has to have the narrative for W before any direct contact can take place. Hence, she says, his conclusion that direct contact is in fact very challenging in the highly unusual circumstances of this case.
217. Ms Fottrell's concluding submission was this:
"The risks of harm in the short term if W returns home are greater, but the evidence supports a view that those risks can be ameliorated, and if they are, her medium and longer-term prospects are vastly improved. Crucially, in the context of s.1(2) of the ACA on that analysis, her life-long best interests would be better met by returning her home.
In contrast, if W remains with Mr and Mrs A, the destructive impact of the narrative is more likely than not to have detrimental psychological consequence in the medium and long-term. The bald assertion that those risks can be reduced because she will have spent a longer time in the care of Mr and Mrs A completely minimizes the complexities of the narrative. If the assessment of risk from the narrative as to its likelihood and its consequences is accepted as being flawed, then the balance of harm favours her being returned to her birth family.
Return to her birth family is the only outcome that addresses properly the risk posed by the narrative. As such, it is the better remedy for W."
Closing submissions: the guardian
218. Mr Bennett summarised Mr Diver's overall position as follows:
"He was … quite prepared to accept in evidence that there had been failures by the Local Authority, by the system, and that the Court had found that there had been deficits in W's representation by her previous Guardian. He accepted that it was not right to ignore the history but his focus has been upon W's welfare, as it has to be. Despite considerable cross-examination, having considered the position carefully for his report, and having continued to reconsider the position after hearing all the evidence, Mr Diver remains firmly of the view that W's interests and welfare are met by the making of an adoption order to Mr and Mrs A, and, should this be the conclusion of the court upon the law, only met by an adoption order, to the extent that he believes that "nothing else will do". He is also firmly of the view that there should be direct contact between W and her birth family, but not with a contact order in place. He does not have any reservations about Mr and Mrs A's ability to promote and put into place contact with the assistance which the Local Authority has made clear it will offer."
219. He continued:
"Mr. Diver is clear, supported by the evidence of all the experts, that Mr and Mrs A are W's social and psychological parents. They are viewed by her as her parents and their son as her brother. She will have no real memory of her birth family and Dr Willemsen's belief that she has some type of implicit memory was described by Mr Diver as somewhat controversial. In any event, Dr Willemsen said that he could not really put weight to it, could not be certain that it would assist in the transfer to the Father, but merely said that it should not be ignored.
… "nothing else will do". If that is the test Mr Diver is clear that it is satisfied and that W's welfare requires an adoption order to be made having dispensed with the consent of her parents. In short, the reason, in Mr Diver's view, why nothing else will do is because the risks of a transition to her Father's care are "too great and are not able to be lessened" (… his report … confirmed in oral evidence)."
220. Mr Bennett summarised Mr Diver's views of the experts as follows. First, Dr Blincow:
"… as the only child psychiatrist instructed in this case, and given his experience, considerable weight should be placed upon the evidence of Dr Blincow, who was effectively warning against the removal of W from Mr and Mrs A because of the high risks to her emotional development and wellbeing, some of which could well last throughout life. As Mr. Diver says in [his report] it would be a high risk to her emotional development in the short, medium and long term."
Next, Mr Hatter:
"Mr Hatter did express his concerns about Mr and Mrs As' ability to work towards direct contact and to make it meaningful for W because of the history … Mr Diver, on his assessment of the As' does not share those concerns and it is a subject upon which Mr Hatter has not been asked to assess the As, nor has he in fact done so. His concern remained the narrative which would be provided for W, which, again, Mr Diver believes can be properly drawn up and will be appropriately used by the As to assist W come to terms with her history and background, alongside direct contact which Mr Diver believes will assist considerably. Thus Mr Diver does not accept Mr Hatter's concerns."
221. Then, in relation to Dr Willemsen's answers to Ms Bazley:
"… his answer has to be taken along with the first part of Dr Willemsen's first answer "if the court decides that the child should live with the father …" It is not accepted that Dr Willemsen was making a general recommendation as to the best way forward. Such an answer does not sit with the careful balance he had drawn between the competing risks in his recent report. Even if he was making a tentative recommendation, it has to be considered against the firm, clear evidence of Drs Blincow and Helps who do not agree with such a recommendation."
222. Finally, Dr Helps:
"… it was suggested that she had approached the case with a closed mind once she had interviewed Mr and Mrs A. Mr Diver does not accept this suggestion and … believes that Dr Helps' evidence remains of considerable assistance in respect of her assessment of W's attachment and the difficulty she would face in having to break that attachment."
223. Mr Bennett summarised Mr Diver's ultimate conclusion:
"Mr Diver has considered all the evidence carefully and continues to believe that W's best interests are met, and only met, by the making of an adoption order to Mr and Mrs A, with direct contact to be arranged once matters have settled down, but sooner rather than later."
224. By the end of the hearing, and as recognised in counsel's closing submissions, there was a general consensus that this is a case of unique difficulty in relation to which none of the experts or other professionals claimed to have, or in fact had, an opinion expressed in more than varying degrees of certainty or uncertainty.
225. There was, correctly, agreement on a number of key matters:
i) The court is faced with a stark choice between two outcomes for W (a) adoption by Mr and Mrs A or (b) rehabilitation to her father and birth family. No-one has suggested, or in my judgment could sensibly suggest, that there is any other realistic option. No-one, for example, has suggested long-term fostering.
ii) Each of the two possible outcomes carries risks. The key issues are the identification of (i) the relevant risks or harms (and, on the other side of the balance sheet, the relevant benefits), (ii) the degree of the relevant harms and benefits, (iii) the likelihood of their occurrence and (iv) the severity of their consequences.
iii) The risks if W is rehabilitated to the father are likely to manifest themselves very soon. The risks if W is adopted are likely to manifest themselves, if at all, during or as W enters adolescence.
iv) It is difficult to predict and very difficult to quantify the relevant risks.
226. The essential argument on the one side is that, if W is adopted by Mr and Mrs A, there will, from her perspective, be no significant change in her life; that any difficulties which may emerge will not do so for some years (by which time W will have become even more settled and secure with Mr and Mrs A); and that even though it is likely that there will be some difficulties, they are unlikely to be severe and may be no more serious than those which affect many adopted adolescents. Direct contact with her birth family in due course will, it is said, mitigate the risks. Conversely, it is argued by proponents of this view, if W were to be rehabilitated to her birth family, the trauma of a move from everything she has known will be severe, will almost certainly manifest itself within weeks at most of her move, and will very likely have consequences ranging from the severe, even assuming the placement does not break down, to the possibly catastrophic were it to break down.
227. The essential argument on the other side is that, if reunited with her birth family, W will fairly quickly and successfully navigate through and beyond any initial trauma and, having done so, will thereafter face a probably unproblematic future, both throughout her childhood and into and through her adulthood. Conversely, it is argued by proponents of this view, the difficulty – it is said the impossibility – of creating an honest and meaningful 'narrative' for W which she will be able to accept if she remains with Mr and Mrs A makes the likelihood of a future breakdown of the placement if she remains with them very real and potentially very damaging. This is linked with concerns that the direct contact which is being suggested may itself put the placement under strain and make it even more difficult for W to accept the 'narrative'.
228. Before proceeding further, I need to express my conclusions about the experts.
229. I start with Dr Helps who, as we have seen, has been subjected to stringent criticism. I reject the suggestions that she was an incompetent, careless and unprofessional expert who approached the case with a closed mind. Nor do I accept the suggestion from Ms Fottrell (paragraph 209 above) that reliance on Dr Helps has led others astray. My criticisms of her are more narrowly focused (cf paragraph 90 above). Although I do not think that, at the end of the day, this affected either her clinical judgment or her ultimate conclusions, I was dismayed to hear Dr Helps justifying her mistaken understanding of the 'sofa' incident – a mistake for which, of course, the local authority bore the ultimate responsibility – as being due to "inaccurate language" and a "simple misreading of the papers", defensive comments which suggested she either did not appreciate or was unwilling to acknowledge the significance of the point. Much more seriously, I cannot accept her view of the father as being unable to 'mentalise', an opinion supported by no-one else and which stood in stark conflict to a mass of evidence, both lay and professional, attesting to his qualities. This inevitably means that one has to view her other opinions with care, but it does not, in my judgment, mean that I can simply reject her evidence as fundamentally flawed and worthless. I cannot and I do not. But her opinions do have to be approached with caution unless congruent with other expert opinion.
230. No comparably serious criticisms were or could have been levelled against the other experts. Criticism of Dr Blincow that his focus was too narrowly based on attachment theory, and almost to the exclusion of all else, was, in my judgment, misplaced (consider, for example, his nuanced view in paragraph 114), as was the criticism of his, as it seemed to me, helpful and illuminating use of a rough numerical scoring system to explain his thinking. I have thought long and hard about Ms Bazley's criticisms (paragraph 192) of Dr Blincow, and Ms Fottrell's submissions (paragraph 211) that his approach was flawed and that he had not grasped the unique nature of the case. At the end of the day, however, and after giving all appropriate weight to those of their points which may have some, though I think limited, substance, I prefer Mr Diver's appraisal of Dr Blincow, and essentially for the reasons he gave (paragraphs 173, 176, 220). Like Mr Diver, I attach considerable, though not, I emphasise, preponderant, weight to Dr Blincow's evidence.
231. I also found Mr Hatter's evidence of very great assistance. Insofar as his reliance on statistics was questioned, this does not, in my judgment, undermine the essential validity of his work. Ms Jenkins was mildly critical (paragraph 205) of Mr Diver's methodology, but in my judgment this does not affect the value of his evidence, which I found of considerable assistance. Dr Willemsen's evidence was balanced, very carefully thought through, illuminated by much reflective insight and, again, of very considerable assistance.
232. The fact is that each of the experts was seeking to bring their own specific expertise to bear in a uniquely difficult case, in which a number of experts from different disciplines were striving to predict the unpredictable and to quantify what cannot be precisely quantified. Inevitably there was a spectrum of views and a spectrum of certainties and doubts but to a significant extent there was, as I have said, a broad consensus on some of the fundamentals.
233. 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.
234. Were W to be moved to her father's care, she would be bound to suffer distress and trauma of the kinds variously described by Dr Blincow (paragraphs 108-109, 111, 121, 123), Mr Hatter (paragraph 130), Dr Willemsen (paragraphs 140, 141, 148) and Dr Helps (paragraphs 156, 158, 163), particularly as she began to realise, as the days and weeks passed, that she was not seeing Mr and Mrs A and that they were no longer part of her life. There is good reason to think that this phase will last many weeks; it might well last for some months, possibly longer. Even Dr Willemsen thought (paragraph 141) that this phase would last months and months and might last a couple of years; he described the task for the father as "immense".
235. It may be, though it is impossible to be at all confident, that W would emerge, settled, secure and happy, at the end of this. What if she does not? Dr Willemsen paints a disconcerting picture of a possible "emotional void" with serious consequences (paragraph 146, though contrast paragraph 150). And, very importantly, by the very end of his oral evidence (paragraph 154) he thought that the plan for rehabilitation to the father "would work" and, notwithstanding the risks, "is the best way forward." Dr Blincow (paragraphs 111, 126-127) and Dr Helps (paragraphs 156, 163, 168) paint a bleaker picture, of, on one view, a possibly "catastrophic" outcome.
236. Obviously, and this is an absolutely crucial question, I have to evaluate the likelihood of any of this happening. To state the obvious, it is difficult, in truth impossible, to predict with any degree of confidence what will or may happen. I bear in mind, as a very important factor, the father's absolute commitment to W and the excellence of the care that, I am satisfied, he will be more than willing and able to provide for her. But this only brings into focus the question of the extent to which what happens is, ultimately, more down to him or to W. The sad reality is, as Mr Hatter (paragraph 134) and Dr Willemsen (paragraph 143) have suggested, that this may well be more about W than the father, and that much may – I suspect will – depend on matters internal to W, so that, at the end of the day, more may turn on her resilience, adaptability and psychological functioning than on whatever the father is able to do for her. Mr Bagchi, as we have seen (paragraph 183), identifies this as a possibly pivotal issue. It is something I have thought long and hard about. My conclusion is that the excellence of the father's care will undoubtedly maximise the prospects of a successful outcome if W is returned to his care, but that, whatever support package might be put in place, it will not of itself suffice, because, in the final analysis, so much will depend upon W rather than the father.
237. My overall conclusion is that there is a very high probability of fairly immediate, and significant, levels of distress and trauma and a very real likelihood – just how high it is impossible to predict – that the placement would be put under such pressure that it might break down, which if it were to happen would carry with it a more than fanciful risk of catastrophe.
238. What, on the other hand, if W were to remain with Mr and Mrs A?
239. As Ms Bazley pointed out (paragraph 189), referring for this purpose to Mr Hatter, whatever the degree of risk were W to be returned to the father (and, as she correctly pointed out, Mr Hatter had not gone so far as to postulate a "catastrophic" outcome), there were significant risks if W remained with Mr and Mrs A, including, she submitted, a risk of an adoptive placement breaking down. These risks focused on two matters.
240. The first, and a matter on which Ms Bazley (paragraph 196), Ms Jenkins (paragraphs 198, 202) and Ms Fottrell (paragraphs 213-215) all understandably placed emphasis, were what they submitted were the enormous difficulties in creating an appropriate 'narrative' for W if she were to be adopted, in comparison to what they submitted was the much more manageable task of creating such a narrative were W to be returned to the father. Not just the difficulty in crafting an honest account of an extraordinarily complex history, but, even more, an account which W would be able to accept and take in her stride without putting her placement with Mr and Mrs A under intolerable and, possibly, unbearable and unsustainable pressure, leading to a significant risk of breakdown. Ms Bazley (paragraph 196) characterised this as the "fundamental flaw" in the plan for adoption. Ms Fottrell (paragraphs 213, 215) saw it as a "key issue" and "the unique element" in the case and one which, for Mr Hatter and Dr Willemsen, was potentially fatal to W's psychological stability in adolescence and adulthood. She elaborated this at some length (paragraphs 213-215), making the point (paragraph 215) that none of the professionals in the case had any experience of working with a child with such a narrative and that this had fed into what she described as a significant degree of misplaced confidence about the manageability of the narrative.
241. The second matter, and one which cannot be disaggregated from the first, are significant concerns as to how direct contact could or would work. Contact would expose W to a family environment in which it would become increasingly apparent to her that her siblings were thriving. Sooner or later, she would ask 'Why am I not living with them? Why can't I live with them?' Would she be able to accept the 'narrative'? The concern is that she would reject both the narrative and her adoptive family. In this context, of course, Dr Helps' observation (paragraph 165), that in future W will have the cognitive capacity to think for herself, potentially cuts both ways.
242. The narrative, I have no doubt, is a central feature, with a considerable potential to both help and harm W. That there must be a narrative which, however potentially painful, is unflinchingly honest, is, I think, imperative in W's interests, now and into the future, in particular into and during her adolescence and into and throughout her adult life. No-one disagrees. The dispute is as to the potentially damaging effect on W into and during adolescence, if she remains with Mr and Mrs A, of the narrative crafted on that footing. This is a matter on which I have thought long and hard. I agree with those who contend that such a narrative may well be very painful for W and very difficult for her to accept. And I recognise that there must be a risk that her reaction to it will put her placement with Mr and Mrs A under real strain or even worse. But this risk must be kept in perspective. W will be exposed to the narrative in its more troubling aspects only gradually and, in all probability, only when the passage of time has made her placement with Mr and Mrs A more and more secure. My assessment, at the end of the day, is that the risk of the narrative putting the placement under unbearable and unsustainable pressure, although real, is small.
243. Mr Feehan submits (paragraph 177) that the risks of a return to the father "so greatly outweigh" the risks if W stays with Mr and Mrs A that "an objective analysis makes the risk of a move now quite insupportable." He sees the balance as being (paragraph 178) between, on the side, a "real possibility" of "catastrophic harm" and, on the other, a "possible to likely" risk of "moderate" harm.
244. Ms Bazley's riposte (paragraph 193) is that before I can accept Mr Feehan's analysis I would need cogent evidence, which she says is lacking, of the "catastrophic" impact contemplated as a possibility by Dr Blincow. Ms Fottrell (paragraph 217) summarised the case for W to be reunited with the father as being that, although the risks of harm in the short term are greater if W returns home, those risks can be ameliorated and, if they are, her medium and longer-term prospects are "vastly improved", whereas if she remains with Mr and Mrs A "the destructive impact of the narrative is more likely than not to have a detrimental psychological consequence in the medium and long-term."
245. How then is the overall balance to be struck?
246. I am driven to agree with Dr Blincow's clearly expressed opinion (paragraphs 115, 117), from which he was not moved, that there are "considerably" more risks and uncertainties in moving W from Mr and Mrs A than in leaving her where she is. That was also the view of Dr Helps (paragraphs 161, 168). Mr Diver's view (paragraph 175) was that the risks of a return to the father are "too great" and "not able to be lessened", while remaining with Mr and Mrs A "represents the least amount of risk." Adoption, in his view (paragraph 175), "is the only situation in which W will have the security that she needs." 'Nothing else will do', he says, because, in his view (paragraph 219), the risks of a transition to the father's care are "too great and "not able to be lessened."
247. Dr Willemsen, recognising in his report (paragraph 141) that it is "entirely unclear" how W will develop if adopted, thought it "unlikely" that a placement with Mr and Mrs A would break down, but did not preclude developmental problems "years down the line." His ultimate view, as we have seen, was (paragraphs 154, 235) that that the plan for rehabilitation to the father "would work" and, notwithstanding the risks, "is the best way forward." I respect that opinion, even though it crystallised only at the very end of his oral evidence, but I cannot agree with it. In the face of all the evidence, both expert and lay, although I can agree that Dr Willemsen's plan might work, I cannot agree that it would work. Nor, taking everything into account, can I agree that it is the best way forward.
248. In arriving at these conclusions I have, of course, very much had in mind the provisions of section 1 of the 2002 Act and the principles to be found in the four key authorities to which I have referred. At the end of the day, my paramount consideration has to be, as section 1(2) mandates, W's welfare, throughout her life.
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. I have obviously considered very carefully, as section 1(4)(c) of the Act requires, the likely effect on W, throughout her life, of having ceased to be a member of her original family and become an adopted person and, as required by section 1(4)(f)(ii), the ability and willingness of her birth family to provide W with a secure environment and to meet her needs, and also, as required by section 1(4)(f)(iii), their wishes and feelings regarding W. But I am also required, by section 1(4)(f), to have regard, inter alia, to the relationship she has with Mr and Mrs A and their son and, by section 1(4)(f)(i), to the value to W of that relationship continuing. In drawing attention to these particular aspects of section 1, I do not, of course, overlook the other provisions.
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. In coming to this conclusion I make clear that I have very much in mind the point pressed upon me by Ms Bazley and others, that, as I said in Re B-S, para 74(viii), judges "should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems." But 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.
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."
Conclusion and outcome
254. For these reasons, I shall dispense with the parents' consent to W's adoption and make an adoption order in favour of Mr and Mrs A.