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Re W (A Child) (No 2) [2017] EWHC 917 (Fam)

Judgment of the President dealing with applications by W’s father for a certificate for a ‘leap-frog’ appeal to the Supreme Court, an application to appeal to the Court of Appeal and a stay.

Following the handing down of judgment by the President in Re W (A Child) [2017] EWHC 829 (Fam), W's father's legal team made applications for a certificate for a 'leap-frog' appeal to the Supreme Court under section 12 of the Administration of Justice Act 1969, an application to appeal to the Court of Appeal and a stay.

The applications
W's father's legal team initially identified three points of law that they invited the President to certify as meriting a 'leap-frog' appeal to the Supreme Court. Following oral submissions, Munby P indicated that he was minded to refuse both the certificate and permission to appeal to the Court of Appeal, but would defer that decision pending receipt of any revised formulation of the proposed certificate questions and grounds of appeal.

Subsequently, the following points of law were identified and submitted as being of general public importance. (1) Whether section 47 (2) of the ACA 2002 is compatible with articles 6 and 8, ECHR where the child is placed for adoption by an adoption agency, without threshold having been established and without the consent of the child's parents to the child being placed in the care of the adoption agency or for adoption. (2) Whether an adoption order can be made where the child's parent has not proved particularly unfit, nothing has been done to preserve or rebuild the child's family and rehabilitation is possible. And (3) the proper approach to determining the child's best interests where the child has the opportunity to return to the birth family and gross failures of State institutions has led to the attachment to the prospective adopters and de-attachment to the parents. Also, the proper approach to post-adoption contact.

The proposed grounds of appeal to the Court of Appeal focussed on the threshold criteria in the context of this case, the obligation to "rebuild" the family and the President's exercise of discretion. They are set out at paragraph 11 of the judgment.

Decision
Munby P dismissed the applications for 'leap-frog' appeal and permission to appeal to the Court of Appeal.

Looking at both, the President held that: the argument that section 47 (2) of the ACA 2002 is in this case incompatible with article 8, ECHR had no real prospect of success; nor did the assertion that the Court of Appeal authorities are in conflict with the Strasbourg and/or Court of Appeal jurisprudence; the argument that the State may not rely on its own failures to justify adoption was not the proposition that underlay either the prospective adopters' application nor the judgment's reasoning and in any event, case-law makes clear that the child's welfare is paramount; and, the questions of principle suggested are all concluded by Court of Appeal decisions themselves founded in House of Lords or Supreme Court rulings, the more recent of which are in turn founded in Strasbourg jurisprudence.

In addition – and specifically in relation to the Court of Appeal application – Munby P held there to be: no real prospect of success in relation to the threshold and obligation to "rebuild" the family points, given that he applied the relevant Strasbourg, Supreme Court and Court of Appeal authorities; no real prospect of success in relation to the exercise of his discretion, in relation to which it was not even asserted that he was "wrong"; and no other compelling reason for the appeal to be heard.

A stay was granted for 21 days to allow W's father to renew his applications before the Court of Appeal.

Summary by Alex Laing, barrister, Coram Chambers

______________________

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: [2017] EWHC 917 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17 April 2017

Published: 26 April 2017

Before :

SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION

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In the matter of W (A Child) (No 2)
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Ms Victoria Green (instructed by Osbornes) for the applicants (Mr and Mrs A)
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 Hamley and Wells) for W's father
W's mother, W's sister X and W's guardian were neither present nor represented

Hearing date: 12 April 2017
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Judgment
Sir James Munby President of the Family Division :

1. The judgment in this case was sent to the parties on 6 March 2017. I made clear, in an email sent to the parties later the same day, that "No order has been made or will be made until the judgment is perfected, nor will time for appealing start running until then." As I had indicated in an email sent late on 6 April 2017, the perfected judgment was handed down on 12 April 2017: Re W (A Child) [2017] EWHC 829 (Fam). I made the order the same day. Accordingly, time for appeal started running on 12 April 2017.

2. The day before, I received from Ms Bazley and Mr Barnes a document, dated 11 April 2017, entitled 'Father's Outline Reasons for Seeking Permission to Appeal and a Stay.' Their client, the father, was seeking three things: first, a certificate pursuant to section 12 of the Administration of Justice Act 1969 with a view to a 'leap-frog' appeal to the Supreme Court; secondly, in the alternative, permission to appeal to the Court of Appeal; and, thirdly, in any event, a stay.

3. I understand that the other parties had been alerted to this on 7 April 2017. Their respective positions can be summarised as follows:

i) Mr and Mrs A's position was set out in an email from Mr Feehan dated 11 April 2017 addressed to Ms Bazley and copied to everyone else: "Having now taken instructions I'm afraid we don't agree PTA nor do we consent to a leapfrog. We don't see that there are any grounds which, if permission were granted, could not be addressed by the CoA." That remained Mr and Mrs A's stance before me the following morning when Ms Victoria Green appeared on their behalf.

ii) The mother's position was set out in an email later the same day, 11 April 2017, from Ms Jenkins: "On behalf of the mother, I support the father's application for permission to appeal and the invitation in respect of a leapfrog appeal to the Supreme Court for the reasons set out in Miss Bazley's submission. I am afraid that I am unable to attend the hearing tomorrow, but would ask that the mother's support for the father's position is noted."

iii) X's position was set out in an email later the same day from Ms Fottrell: "We do not have instructions from [X] on the PTA … her solicitor plans to see her and discuss the judgment with her, once it is handed down. [X] has supported her father's case to have W returned to the family as you will recall, but we cannot make any submissions on this specific application at present. [My solicitor] and I are on leave this week. Ms MacLynn is unable to attend the hearing."

iv) The local authority, as Mr Downs made clear at the hearing, opposed the father's applications.

v) The guardian, as I was informed at the hearing, could not be contacted in the short time available.

4. So far as material for immediate purposes, section 12 of the 1969 Act (as amended) provides as follows:

"(1) Where on the application of any of the parties to any proceedings to which this section applies the judge is satisfied –

(a) that the relevant conditions are fulfilled in relation to his decision in those proceedings or that the conditions in subsection (3A) ("the alternative conditions") are satisfied in relation to those proceedings, and

(b) that a sufficient case for an appeal to the Supreme Court under this Part of this Act has been made out to justify an application for leave to bring such an appeal, …

the judge, subject to the following provisions of this Part of this Act, may grant a certificate to that effect.


(3) Subject to any Order in Council made under the following provisions of this section, for the purposes of this section the relevant conditions, in relation to a decision of the judge in any proceedings, are that a point of law of general public importance is involved in that decision and that that point of law either –

(a) relates wholly or mainly to the construction of an enactment or of a statutory instrument, and has been fully argued in the proceedings and fully considered in the judgment of the judge in the proceedings, or

(b) is one in respect of which the judge is bound by a decision of the Court of Appeal or of the Supreme Court in previous proceedings, and was fully considered in the judgments given by the Court of Appeal or the Supreme Court (as the case may be) in those previous proceedings.

(3A) The alternative conditions, in relation to a decision of the judge in any proceedings, are that a point of law of general public importance is involved in the decision and that –

(a) the proceedings entail a decision relating to a matter of national importance or consideration of such a matter,

(b) the result of the proceedings is so significant (whether considered on its own or together with other proceedings or likely proceedings) that, in the opinion of the judge, a hearing by the Supreme Court is justified, or

(c) the judge is satisfied that the benefits of earlier consideration by the Supreme Court outweigh the benefits of consideration by the Court of Appeal.

(8) In this Part of this Act "civil proceedings" means any proceedings other than proceedings in a criminal cause or matter …"

5. In their 'Outline Reasons', Ms Bazley and Mr Barnes identified three points of law which they invited me to certify:

i) The first point was based on the premise that "to the great detriment of W, the State in the shape of the local authority perpetuated a false picture of the father over months and years, including in official records which travelled with the child [and] in the shape of the court system then failed the child through its errors and delay over many more months." The proposition sought to be argued was that "the State may not rely upon its own failures (including a failure to promote contact, let alone reunification) to justify adoption as being proportionate and necessary in the interests of a child's welfare."

ii) The second point was formulated thus: "Whether to interpret s.47(2) of the Children and Adoption Act 2002 as not requiring the s.31(2) threshold in the Children Act 1989 to be met can be compatible with Article 8 and the right to family life in circumstances in which the child was removed from her family by the interference of the State." Whilst it was "accepted that, as a matter of black letter law, there is no requirement to consider threshold at the adoption stage", it was suggested, nonetheless, that my approach was not consistent with the decision of the Supreme Court in In re J (Children) (Care Proceedings: Threshold Criteria) [2013] UKSC 9, [2013] 1 AC 680. It was submitted that "in circumstances in which care and placement orders, as the basis for the State's interference in the child's family life, have been set aside, it is necessary to consider the justification for that interference (both initially and on an ongoing basis) in the context of the welfare decision in relation to whether nothing but adoption will do."

iii) The third point was this: "Where does the balance of Article 8 rights fall as between the child and her interest on the one hand in being united with her family of origin and, on the other, in remaining in her 'new' family, as well as the respective rights of the natural and adoptive families?" It was said that, in relation to the absence of a hierarchy of rights and the lack of any presumption or preference to be given to the natural family, I was bound by recent Court of Appeal authority – Re M'P-P [2015] EWCA Civ 584, Re H (A Child) [2015] EWCA Civ 1284 (the appeal from Russell J in the present proceedings), and Re W (A Child) [2016] EWCA Civ 793 – which, it was submitted, is "difficult to reconcile with" the Strasbourg jurisprudence and "appears to be in conflict with" what the Supreme Court said in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075. There is, it was said, a "pressing need" for the law to be "clarified", this being, it was submitted, the province of the Supreme Court.

6. It was submitted that these points fall variously within sections 12(3)(a), 12(3)(b), 12(3A)(b) and 12(3A)(c) of section 12.

7. As I pointed out to Ms Bazley, there was nothing in her written submissions to indicate any intention, if the matter nonetheless ended up in the Court of Appeal, to raise any ground of appeal going beyond these three points of law. When I inquired whether this was indeed what was intended, her response was that it was not.

8. At the end of the oral submissions, I indicated to Ms Bazley that I was minded to refuse both the certificate and permission to appeal to the Court of Appeal, though being willing to grant a stay for 21 days to enable her to renew her application for permission to the Court of Appeal. I said that I was, however, prepared in the circumstances to defer a final decision pending the receipt from her of any revised formulation of the proposed certified questions and of the grounds of appeal which she might wish to put before me.

9. As she had indicated she would do, Ms Bazley circulated the following day, 13 April 2017, a document entitled 'Questions to be Certified in respect of appeal to the Supreme Court and Draft Grounds of Appeal.'

10. In relation to the application for a certificate pursuant to section 12 of the 1969 Act, Ms Bazley and Mr Barnes, identified three points of law, said to be of general public importance, as satisfying the statutory requirements:

"(a) Is section 47(2) of the Adoption and Children Act 2002 compatible with articles 6 and 8 of the European Convention on Human Rights insofar as subsection (c) permits the making of an adoption order in circumstances where:

(i)  The child was placed by an adoption agency;

(ii) The child's parents have not consented to the child being placed either in the care of the adoption agency or for adoption; and

(iii) Where the 'threshold criteria' defined by section 31(2) of the Children Act 1989 has not or cannot be established?

(b) Can an adoption order be made in circumstances where:

(i)  The child's parent has not proved particularly unfit;

(ii) Nothing has been done to preserve or rebuild the child's family; and

(iii) Another course, namely rehabilitation, is possible?

(c) What is the proper approach to determining the child's best interests (welfare) where:

(i)  The child has been placed with prospective adopters and has the opportunity to return to their birth family;

(ii) Gross delay caused by failures of State institutions has led to the child's attachment to prospective adopters developing and inhibited the child's relationship with their birth family?

(d) What is the proper approach to the making of an order for post-adoption contact?"

11. The proposed grounds of appeal to the Court of Appeal were formulated as follows (the references in [..] being to paragraphs in my judgment):

"The 'threshold criteria'

(a) In all of the circumstances of the case the Court was wrong to conclude that the adoption application in respect of W should be treated as a "private law adoption application" [84] having regard to the degree and nature of the interference [per Re P (Step-parent Adoption) [2015] 1 FLR 1327, para 47] specifically where:

(i)  W was placed for adoption by strangers;

(ii) W's placement came about as a consequence of state interference in her family's life; and

(iii) Her parents did not consent to her placement under section 20 of the Children Act 1989 or for adoption.

(b) In all the circumstances of the case the Court was wrong to conclude that an adoption order could lawfully be made where the 'threshold criteria' defined by section 31(2) of the Children Act 1989 could not be established. As a consequence W and her birth family have been denied protection from an interference with their rights under articles 6 and 8 of the European Convention on Human Rights which is unwarranted, arbitrary and disproportionate. [per In the matter of J (Children) [2013] UKSC 9]

(c) Insofar as section 47(2) of the Adoption and Children 2002 permits the making of an adoption order in circumstances such as apply to W without the 'threshold criteria' defined by section 31(2) of the Children Act 1989 being established it is incompatible with the proper protections required by articles 6 and 8 of the European Convention on Human Rights.

Obligation to 'rebuild' the family

(d) The Court was wrong to make an adoption order in circumstances where nothing had been done preserve W's relationship with her birth family or to rebuild the family and where the actions of the local authority and the delay caused by the Court meant W's relationship with her family was determined by the mere passage of time. [per YC v United Kingdom (Application No 4547/10) (2012) 55 EHRR33, [2012] 2 FLR 332, paras 134-5, and Görgülü v Germany (Application no 74969/01) [2004] 1 FLR 894, para 45]

(e) The Court was wrong to make an adoption order in circumstances where no alternative to adoption had ever been attempted and where a plan had been formulated to support W's rehabilitation to her birth family. [per In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, para 198] In all of the circumstances of the case the Court was wrong to deny W the possibility of being reunited with her birth family where the Court concluded (albeit this conclusion was overly pessimistic, see below) that the plan "might work". [247]

Exercise of discretion

(f)  The Court's conclusion that "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" and "a very real likelihood … that the placement would be put under such pressure that it might break down" [237] is not sustainable and unduly pessimistic having regard to all of the evidence in the case including:

(i)  The exceptional qualities of the father and of his parenting;

(ii) The fact that W is a "normal resilient child without any particular vulnerability or fragility"; [94]

(iii) The fact that W had never suffered any harm; and

(iv) The resources available to support W's rehabilitation to her family as set out in the rehabilitation plan.

(g) The Court, in reaching a conclusion in favour of making an adoption order, has placed too much weight upon;

(i)  The evidence of Dr Blincow;

(ii) The evidence of Dr Helps (particularly in light of the errors in her approach and conclusions);

(iii) The potential for break down upon W's return to her father's care;

(iv) The short-term transient risks;

And conversely the Court has failed to place sufficient weight upon;

(v) The benefits for W of returning to her family, living with her father, being brought up with her birth siblings and having a relationship with her mother;

(vi) The evidence of Dr Willemsen that the reunification plan would work;

(vii) The likelihood and consequences of W's adoptive placement breaking down;

(viii) The likely harm caused to W as a consequence of her "narrative" in the event that she remains with Mr and Mrs A."

12. Despite Ms Bazley's submissions I am clear that I should dismiss both the application for a certificate for a 'leap-frog' appeal to the Supreme Court and the application for permission to appeal to the Court of Appeal. My reasons in short are, in relation to the first, that, within the meaning of section 12(1)(b) of the 1969 Act, no "sufficient case for an appeal to the Supreme Court … has been made out to justify an application for leave to bring such an appeal" and, in relation to the second, that there is neither, within the meaning of CPR 52.3(6)(a), a "real prospect of success" nor, within the meaning of CPR 52.3(6)(b), any "other compelling reason why the appeal should be heard."

13. In relation to both applications I can summarise my reasons as follows:

i) I simply do not accept, and in my judgment, the argument has no real prospect of success, that section 47(2) of the 2002 Act is, in the circumstances of a case such as this, incompatible with Article 8 (a proposition which in this stark form had not been deployed before me) nor that my approach was not consistent with that of the Supreme Court in In re J.

ii) I do not accept, and in my judgment, the argument has no real prospect of success, that the authorities in the Court of Appeal which I followed are in conflict either with the Strasbourg jurisprudence or with the decision of the Supreme Court In re B, all of which I considered at some length in my judgment. On the contrary, and as I said (Re W, para 77), there was "nothing in the least novel or surprising in McFarlane LJ's analysis", which, quite apart from its according with the decision of the Supreme Court in In re B, accorded with no fewer than three earlier decisions of the House of Lords.

iii) Insofar as it is ought to be argued that "the State may not rely upon its own failures … to justify adoption as being proportionate and necessary in the interests of a child's welfare", (a) that is not the proposition which underlay either the application – made not by the local authority but by Mr and Mrs A – or any part of my reasoning, and in any event (b) both the domestic and the Strasbourg jurisprudence have long made clear (see Re W, paras 77-79, 88) that, in the final analysis, the child's welfare is paramount, and takes precedence over the claims of an unimpeachable parent, even where there have been failures on the part of the State.      

iv) The questions of law or principle which are sought to be canvassed are all concluded by decisions of the Court of Appeal securely founded in decisions of the House of Lords or Supreme Court the more recent of which are themselves securely founded in the Strasbourg jurisprudence.

14. In relation to permission to appeal to the Court of Appeal, I add:

i) In relation to 'The 'threshold criteria'' and 'Obligation to 'rebuild' the family', there is no real prospect of success; my judgment followed and applied the relevant authorities in the Strasbourg court, in the Supreme Court and in the Court of Appeal.

ii) In relation to 'Exercise of discretion', there is no real prospect of success. I note that it is not even asserted that I was "wrong" either in relation to my evaluation and "weighting" of the various factors or in relation to my overall evaluation and conclusion.

iii) Given the circumstances, and not least the extent to which all the matters sought to be canvassed have been considered recently in the Court of Appeal, there is no compelling reason for the appeal to be heard.

15. It is plainly right that I grant a stay, so that the Court of Appeal has an opportunity to decide, before some irrevocable step is taken, whether the father should be granted permission to appeal. I remain of the view that, allowing for the intervening vacation, a period of 21 days from 12 April 2017 is sufficient and appropriate. Ms Bazley sought a stay for a somewhat longer period, in part because of potential public funding delays. I do not agree. By the time the period of 21 days from 12 April 2017 runs out, almost two months will have elapsed since the judgment was sent to the parties on 6 March 2017. If there is to be any further or extended stay, that, in my judgment, is a matter for determination by the Court of Appeal.