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Re DB (A Minor) [2017] EWFC 45

Judgment of Baker J refusing an application for leave to oppose an adoption order

The court was concerned with an application by two parents for permission to oppose an adoption application in respect of their son D, aged four.  D had been made the subject of care and placement orders in April 2016 and was subsequently placed with prospective adopters who applied for an adoption order.

The parents had each been known to the local authority for a number of years, with other children made subject to care orders.  Proceedings were issued after D presented at hospital suffering an injury to his frenulum and bruises all over his body.  At a fact finding HHJ Melville QC concluded that some of the injuries were caused by a babysitter Ms P (who had been joined as an intervener), and that she together with the father or both parents were in the pool of perpetrators for various other injuries.  HHJ Melville QC was satisfied that neither the parents nor Ms P sought appropriate treatment or told the truth about what had happened, and further that they had each been involved in the consumption and supply of illegal drugs and legal highs making them emotionally and physically unavailable for D.

At the final welfare hearing the Judge had concluded that: D was seriously damaged, and that he had been damaged physically and emotionally by his parents; he had not received the security and safety any child of his age is entitled to expect; and neither parent was prepared to accept those facts, although the mother was willing to undergo therapy and the father is "just about" prepared to undergo anger management [8].  The Judge further concluded that "the likely effect on him of ceasing to be a member of his original family and becoming an adopted person "can only be beneficial"" [8].  He approved the care plan, and concluded that D's welfare required the parents' consent be dispensed with, making a placement order.

Mr. Justice Baker heard the application and reviewed the law for this application for leave to oppose the adoption order under section 47(5), where the court must be satisfied there has been a change in circumstances since the placement was made s.47(7).  Baker J set out that under s.1(1) ACA 2002 the court must apply the provisions of s.1(2) to (4) of the Act, which applies to applications under s.47 by s.1(7).

His Lordship referred to Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 [at para 26] where Wall J set out the two stage test of (1) change of circumstance, then (2) the welfare test, and that this test was confirmed in Re B-S (Adoption: Application of s. 47(5)) [2013] EWCA Civ 1146 in which the President said [at 72] that the exercise of the second stage was "judicial evaluation rather than one involving mere discretion" [see para 74 for the observations of the President on the second stage of the test].

Baker J read and heard evidence from the parties, and from a friend of the parents named PH. He concluded he could see no evidence of any real change of circumstances, and that the father had "put forward no evidence of any change whatsoever" [25] and was instead preoccupied with asserting that the outcome of the earlier proceedings was wrong. The mother had made some changes but they were to lifestyle only, and there had been "no real change" [27].

Having concluded there was no real change in circumstances, it was not necessary for Mr. Justice Baker to address the second stage of whether the court should exercise its discretion to permit the parents to oppose the application.

Summary by Sarah Tyler,  barrister, Coram Chambers

______________________ 

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

Case No: Pl13/2017
Neutral Citation Number: [2017] EWFC 45

IN THE FAMILY COURT
At Plymouth

IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF DB (A MINOR)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25th July 2017


Before :

THE HONOURABLE MR JUSTICE BAKER

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Between :

AM (1)
Applicants
JB (2) 
 - and - 
TORBAY COUNCIL Respondent
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The Applicants appeared in person
Penny Ireland
(instructed by Local Authority solicitor) for the Respondent

Hearing dates: 16th July 2017
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Judgment
MR JUSTICE BAKER :

1.  This is an application by two parents for permission to oppose an adoption application in respect of their son, D, born 2 June 2013 and therefore now aged four. D was made the subject of a care order and a placement order on 15 April 2016. Subsequently he was placed with prospective adopters who have now made an application for an adoption order. His parents indicated that they wished to oppose the order and their application was list before me the hearing on 16 July 2017.

Background

2. Both of D's parents have been known to the local authority children's services for a number of years. Each has other children who have been made the subject of care orders. Owing to the historic concerns, prior to D's birth in 2013, an initial child protection conference recommended that the baby be made subject of a child in need plan. After he was born, D initially remained at home with the parents with support from social services.

3. On 17 April 2015, D was presented at hospital suffering from an injury to his frenulum and bruises on his face and body. He was made the subject of a police protection order and subsequently an emergency protection order. On 21 April 2015, the local authority started care proceedings and two days later D was made the subject of an interim care order. A number of case management directions were made, including an order joining D's babysitter, Ms P, as intervener, she having been identified as a possible perpetrator of D's injuries.

4. A finding of fact hearing took place before HH Judge Melville QC in September 2015. In his judgment dated 16 October 2015, the judge reached the following findings:

(1) D's torn frenulum, lip injuries and right cheek bruises were inflicted by Ms P;

(2) the father and Ms P were in the pool of perpetrators for the bruises inflicted to D's right and left arms;

(3) the parents and Ms P were in the pool of perpetrators for inflicting bruises to D's abdomen, thighs, shoulder and right eyebrow;

(4) the various perpetrators would know that they had used excessive force and caused distress to D;

(5) the mother did not protect D from rough treatment by the father, although she knew of it;

(6) neither the mother nor the father nor Ms P sought appropriate treatment for D after the injuries which each had caused him or which they knew that another had caused;

(7) the parents and Ms P had not each told the truth about what had really happened;

(8) the parents and Ms P had each been involved in the consumption and supply of illegal drugs and legal highs which had made each one individually and collectively unavailable, emotionally and physically, for D.

5. Following the findings, information was received by the local authority that the father had been making plans to kidnap D and take him to France in the event that the local authority's plan was one of adoption. The mother claimed that she did not support this plan, and alleged that the father had committed an act of domestic violence upon her. An assessment carried out by a consultant psychologist, Dr Anna Gough, concluded that the parents both had significant and unresolved attachment histories that had impacted upon their capacity to care for D in a safe and nurturing manner. Dr Gough noted the mother had some insight into her psychological difficulties but added that this was compromised by her continued dependence upon the father. Dr Gough said the father was rigid in his belief that D had been most emotionally harmed by being separated from his parents. She observed that his defensive position underpinned a serious lack of insight and acceptance of responsibility. She concluded that the prognosis for psychological change in his case was poor. As for D, she concluded that he needed robust relationship-based strategies to help him recover from his history of neglect and physical harm.

6. Following receipt of this assessment, the local authority completed a care plan proposing that D be placed for adoption, and filed an application for a placement order. This plan and application were opposed by the parents but supported by the children's guardian.

7. The final welfare hearing in the proceedings took place before Judge Melville in April 2016. In his judgment, after a lengthy analysis of the evidence, he reached the following conclusions. He found Dr Gough to be an impressive, truthful and reliable witness. On the other hand, he found that neither the mother nor the father was helpful or truthful. As far as the mother was concerned, having noted that she had apparently acquired some insight to the cause of her assessment by Dr Gough, he concluded that she appeared in oral evidence to be going back on what she had previously learnt and said. She did not accept in the witness box remarks she had made to Dr Gough during the assessment. The judge further found she was still using drugs and that she was intimidated and controlled by the father whom she believed, without evidence, to have made an improvement in his lifestyle. The judge had no confidence in her ability or motivation to change or improve. So far as the father was concerned, the judge concluded that he was rigid in his thinking and had no insight into his behaviour, lifestyle, or D's needs. He further found that the father had a temper which was worse under the influence of alcohol. He found that the father had seriously considered abducting D to France and that he had continued to intimidate and control the mother. He concluded that the father had shown no insight into the way D should have been brought up by the mother and himself, and did not accept any real responsibility, other than that they should not have allowed him to be with Ms P for so long or so often, together with some regret that he and the mother had argued.

8. In drawing his conclusions together, the judge said:

"D is a seriously damaged child: he has been damaged both physically in his parents' care and emotionally by the neglect of him. He is confused and angry. He has not received the security and safety any child of his age is entitled to expect. Neither of his parents is now prepared to accept these facts although one of them [the mother] is prepared to undergo therapy over 12 to 18 months in order to improve herself. [The father] is just about prepared undergo anger management."

The judge duly considered the factors in the checklist in s. 1(4) of the Adoption and Children Act 2002. Noting that D was too young to express his wishes and feelings orally, he observed that it was plain on watching a DVD of D how deeply distressed he is. He found that D needed adequate parenting to enable him to put behind him the care he received from his birth parents. He concluded that the likely effect on him of ceasing to be a member of his original family and becoming an adopted person "can only be beneficial". He found that the child had gained little of any good in his life with the parents, who could not cope with him. He found that it was "absolutely essential now that D finds permanence in a family who will care for him for life." He noted that he had suffered acute physical and emotional harm in his birth family and, if he were returned to them, this would continue.

9. Having considered all the options for D's future care, he concluded that there was no alternative to a care order.

"There is no doubt in my mind having heard the evidence that the only sensible course in this case is to make a placement order: there is indeed no alternative, nothing else will do"

He therefore approved the care plan and made a care order. He concluded that the child's welfare required him to dispense with the parents' consent to the making of a placement order, and duly made a placement order authorising the  local authority to place D for adoption.

10. D has now been placed for adoption and an adoption application filed. Notice that an application had been made was served on the parents who indicated that they wished to oppose the making of the order. On 13th April 2017, Judge Melville gave case management directions for determining their application for permission to oppose the adoption, and listed that application of the hearing on 23rd May. In the event, however, the hearing could not go ahead on that date and was duly relisted on 17th July before me.

The law

11. Where a child has been placed for adoption by an adoption agency under a placement order with the prospective adopters in whose favour the adoption order is proposed to be made, a parent may not oppose the making of the adoption order without the court's leave: s.47(5) of the Adoption and Children Act 2002. The court can not give leave under this subsection unless satisfied that there has been a change in circumstances since the placement was made: s.47(7).

12. Under s.1(1) of the 2002 Act, when coming to a decision relating to the adoption of a child, the court must apply the provisions of s.1(2) to (4) of the Act. S.1(7) makes it clear that this applies to applications for leave under s.47. S.1(7) reads:

"In this section 'coming to a decision relating to the adoption of a child', in relation to a court, includes

(a)  coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),

(b)  coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,

but does not include coming to a decision about granting leave in any other circumstances."

Under s.1(2) the paramount consideration of the court must be the child's welfare, throughout her life, and to that end the court must have regard inter alia to the matters set out in the checklist in section 1(4).  In addition, of course, the court must have regard to the ECHR, in particular the right to respect for family life under article 8.

13. In Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 at paragraph 26, Wall J, giving the judgment of the court, said:

"In our judgment, analysis of the statutory language in ss 1 and 47 of the 2002 Act leads to the conclusion that an application for leave to defend the adoption proceedings under s.47(5) of the 2002 Act involves a two stage process. First of all, the court has to be satisfied, on the facts of the case, that there has been a change of circumstances within s.47(7). If there has been no change in circumstances, that is the end of the matter, and the application fails. If, however, there has been a change in circumstances within s.47(7), then the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings is open, and the decision whether or not to grant leave is governed by s.1 of the 2002 Act. In other words, "the paramount consideration of the court must be the child's welfare throughout his life".

14. This approach was subsequently confirmed by the Court of Appeal in Re B-S (Adoption: Application of S 47(5)) [2013] EWCA Civ 1146, subject to a minor qualification, as identified by Sir James Munby P at paragraph 72, that "the exercise at the second stage is more appropriately described as one of judicial evaluation rather than one involving mere discretion.

15. As to the first stage, Wall LJ observed in Re P (at paragraphs 30 and 31):

"…the change in circumstances since the placement order was made must, self evidently and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings….self evidently, a change in circumstances can embrace a wide range of different factual situations. S.47(7) of the 2002 Act does not relate a change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances 'since the placement order was made'".

As to the second stage, the leading authority is now the decision of the Court of Appeal in Re B-S. supra. I have in mind, in particular, the observations of the President  at para 74.

The parents' case

16. Prior to the hearing, statements were filed by the mother and father, together with a short report from the local authority social worker. At the hearing, the parents represented themselves and were accompanied by a friend called PH.

17. In her statement in support of the application, the mother said that she wished to oppose the adoption order and that her reasons were that she felt that her case had not been dealt with properly and that she had not been listened to. She felt that the assessments were wrong and unfair. She complained that not once has she been offered the opportunity to go to a mother and baby unit with D. She said that she had never harmed her son and never would. She pointed out that doctors and nurses had said that he was happy in her care and was thriving and doing well for his age. She said that she had not been seen as a threat to D at the hospital. Rather, it was the father who had been seen as a threat because of his temper.

18. The mother said that she was aware that changes still needed to be made and that she was willing to make those changes, with the help of professionals. She pointed out that, in the previous court proceedings, social services and Dr Gough had stated that she needed at least 12 to 18 months of therapy to deal with past issues. She added, however, that after the care and placement orders were made, not once had she been put in touch with the right professionals to have the therapy. She had been left to find help for herself and struggled to get where she was today.

19. Under the heading "Changes made since the care and placement order", the mother said in her statement that she wished to apply for custody on her own and for the father to get visitation rights; that she had passed a "children's studies" course online in July 2016; that she had lost her home because of the proceedings and was looking for a flat at present; that she had an appointment with mental health services next month, and that she has starred the parenting assessment and psychology course online last month. She concluded that she was in a better situation now to care for D, although she would need to get some help with accommodation were he to be returned to her care.

20. In his statement in support of the application, the father said:

"[The mother] and myself are back together and prepared to receive our son back into the home we share together to give the love and care that only real parents can give. We both feel deceived by the local authorities especially [the mother] whom was given the distinct impression that she had a chance of getting her son back by complying with demands of criticising me and exaggerating my faults."

In the rest of his statement, the father raised complaints about the treatment by the court of his friend, PH, whom Judge Melville have refused permission to act as the parents' McKenzie friend.

21. The mother said she did not wish to add anything in evidence but the father chose to give oral evidence. He said that he was not 100% convinced that the mother needed therapy. He thought she was trying to do the right thing but he had his doubts as to whether this was necessary. He said that their relationship was now strong, contrary to what had been predicted in the earlier proceedings. The father spoke of his career plans which are involved with graphic design and produced examples of his work. He said that D needed a dad, a father figure, and that when he tried to explain this to Dr Gough she brushed this aside. He said that he suffered from Asperger's syndrome but that Dr Gough had not spotted it. He said that he been worried about D's emotional state because he was biting himself. He said that he was sure that the adopters were wonderful people but he did not think that they could give D what they could. Cross-examined by Ms Ireland on behalf of the local authority, he said that he recalled the suggestion that he should have anger management. He said that he had not received any help of this nature, adding that although he sometimes gets stressed and very angry when on the internet, he does not get angry more widely.

22. I permitted PH to give oral evidence. He said that he had known the parents for two years and said there was a big difference. They were now getting on more harmoniously than before. He said the father was a very caring and sincere person which had not been reflected in the proceedings.

23. In closing submissions, the father, speaking on behalf of both parents, drew attention to the incidence of adoption breakdowns. He was concerned that, while D may be happy now, problems may arise later in his teenage years. He concluded by saying "I love him, no one can say they love him as much as I do."

24. The local authority through Ms Ireland opposed the parents' application. It was contended that, in so far as the mother had made changes, they were only to her lifestyle and well-being and were not sufficient to justify the granting of leave proposed adoption. It was submitted that there is no evidence of change in the father. The local authority reported that D is happy and secure in his adoptive placement and submitted that removing him now would cause significant damage.

Discussion and conclusion
25. I regret to say that I can see no evidence of any real change of circumstance in this case.

26. The father put forward no evidence of any change whatsoever. He plainly considers that the outcome of the care and placement proceedings was a miscarriage of justice. I am satisfied that, were he to be given permission to oppose the adoption application, he would focus his case on seeking to establish that the outcome of the earlier proceedings was wrong. He does not consider it necessary for the mother to undergo any therapy. He has no insight whatsoever into the causes of the problems that arose when D was in their care, nor any real understanding of the harm that D suffered.

27. The mother may have made some changes in her lifestyle. I note that she has completed a parenting course on line. But she has not yet had the therapy which Dr Gough considered essential in order to improve her capacity to look after a child. She complained that no one has provided her with the opportunity or facilities to receive the therapy. She has now made contact with mental health services and has been offered an appointment next month. But as things stand today there has been no real change in her circumstances.

28. I recognise and sympathise with the parents' feelings. The father, speaking on behalf of the mother as well as himself, expressed their love for their son and his firm belief that D would be better off in their care. I also acknowledge that, as the father stated, not all adoptions are successful and a proportion of adoptive placements break down. But that is not a consideration for me at this stage. The only question for this court is whether the parents have established the grounds for being given permission to oppose the adoption application.

29. Having considered the evidence, and the submissions made by the father on their behalf, I have sadly reached the very firm conclusion that the parents have not satisfied me that there has been any real change in circumstances since the placement order was made. For that reason, their application for permission to oppose the adoption order cannot succeed and it is therefore unnecessary to go on to consider the second stage, namely whether, if there had been a change in circumstances, the court would exercise its discretion so as to permit the parents to oppose the application.

30. For the reasons set out above, the parents' application for permission to oppose the adoption order is refused.