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Re T (A Child: Adoption or Special Guardianship) [2017] EWCA Civ 1797

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Case No: B4/2017/0875
Neutral Citation Number: [2017] EWCA Civ 1797
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL CIVIL AND FAMILY COURT
RECORDER HARRIS-SHORT
LV16Z02514
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 10/11/2017
Before :

LORD JUSTICE GROSS
LORD JUSTICE McFARLANE

and
LORD JUSTICE PETER JACKSON

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Between :

T (A Child, by his Children's Guardian)
Appellant

- and -

Wirral Borough Council
Respondent


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Karl Rowley QC and Shaun Spencer (instructed by Hogans) for the Appellant
Frances Heaton QC and Jonathan Taylor (instructed by Wirral Borough Council) for the Respondent

Hearing date : 26 October 2017

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JUDGMENT

Re T (A Child: Adoption or Special Guardianship)

Lord Justice Peter Jackson :
1. Liam (18 months old, not his real name) has lived since his birth with his maternal cousins 'Mr and Mrs Smith', and his maternal half-brothers 'Simon' (6) and 'Stephen' (5).  The older boys were removed from their mother in February 2015 and placed with the Smiths in August 2015 under care orders.   They have no contact with their mother, but continue to see their father and their two older maternal half-siblings – 'David' (10, in foster care) and 'Dawn' (9, living with a paternal relative).  It is not disputed that Simon, Stephen, and Liam will remain living with the Smiths for the rest of their childhoods, nor that the appropriate form of order for Simon and Stephen is a special guardianship order.   What is disputed is the most appropriate order for Liam: special guardianship or adoption? 

2. The parties' positions are as follows.  The local authority argued for a placement order for Liam as a step to adoption by the Smiths, while the Children's Guardian (for all three children) argued for special guardianship so that the three boys would be treated alike.  The children's mother plays no part in this appeal.  Liam's father, who has never met him and does not have parental responsibility, is not represented on the appeal; he accepts that he should grow up with the Smiths, but does not agree to adoption.  The Smiths want to adopt Liam, but are also committed to keeping him as special guardians.  

3. The brief history is that local authority involvement with the mother began in 2009 and in 2013 care proceedings were taken in relation to her then four children, leading to the making of care orders.  Care proceedings for Liam began at birth and in August 2016, the local authority applied for a placement order.  At the same time, it applied to discharge the care orders for Simon and Stephen and to convert them to special guardianship orders. 

4. In September 2016, following a judicial remark that their care plan was anomalous in proposing adoption for only one of the three children, the local authority changed its care plan to seeking placement orders for all three with a view to adoption by the Smiths, but at the start of the final hearing in March 2017 it reverted to seeking special guardianship for the older two and adoption for Liam. 

5. It was in that way that the case came before Recorder Harris-Short at Liverpool on 8 and 9 March 2017.  She heard evidence from the social worker and the Guardian.  In relation to Simon and Stephen, she made special guardianship orders and supervision orders (sought by the Guardian, not by the local authority) to assist with the management of their father's contact.  She recorded that these boys have a valuable relationship with their father that made adoption inappropriate. 

6. In relation to Liam, the Recorder made a care order and a placement order, so that he could be adopted by the Smiths.  Her reasons appear in a careful judgment, shortly described below.  The Guardian, with permission of King LJ, now appeals.

7. Having heard from Mr Rowley QC and Mr Spencer for the Guardian, and Ms Heaton QC and Mr Taylor for the local authority, we told the parties that the appeal would be dismissed for reasons to follow. 

8. The essence of Mr Rowley's argument is that:

The Recorder, and for that matter the social worker, started with a preconceived notion in favour of adoption for such a young child, asserted that there is a right to have a legal parent, and treated a special guardianship order as not only a lesser order but also a less good order.

That starting point led her (a) to exaggerate the security provided by adoption, when there is in reality no external threat to Liam's family life with the Smiths, and (b) to undervalue the loss to Liam of changing his legal status so that he would no longer be legal half-brother to Simon, Stephen, David and Dawn.

9. Ms Heaton responds that the Recorder carried out a proper statutory welfare analysis and that her approach cannot be faulted.

10. In her judgment, the Recorder recorded the history and the evidence of the two witnesses.  She was impressed by the analysis of the social worker who, she considered, had weighed up the advantages and disadvantages of each option.  She was extensively critical of the Guardian's approach, finding her appreciation of the advantages of adoption to be deficient and charging her with holding a preconceived view that adoption is not appropriate in an extended family placement.

11. The Recorder then correctly summarised the legal environment for her decision: the welfare checklist in s.1(4) Adoption and Children Act 2002 and the requirement under Art. 8 ECHR for a high degree of justification if a placement order is to be made.

12. Coming to her decision, she said this:

"In my judgment, the welfare balance comes down very firmly and decisively in favour of adoption.  The Local Authority's case is, in my judgement, compelling, and I am satisfied that there are overriding reasons in the best interests of [Liam] justifying adoption.  In short, I am satisfied that nothing else will do and I say so for the following reasons.…  In my judgment, Liam's overriding need is for permanency, security and stability in the care of Mr and Mrs [Smith] throughout his childhood and beyond.  Liam has a fundamental need, a right wherever possible to parents who love him, care for him, exercise responsibility for him and are unconditionally committed to him as their child.  Adoption, unlike any other legal order available to this court, offers Liam that opportunity for legal permanency and certainty, a forever family with Mr and Mrs Smith.  It creates a psychological and emotional sense of belonging, which is offered by no other order.  It makes Mr and Mrs Smith, not his long-term carers, but his parents."

13. The Recorder then went on over a number of paragraphs to recognise that special guardianship can also offer children security and stability, but described it as a less secure form of permanency than adoption.  She considered the uncertainty created for the Smiths by the possibility that the parents might seek to re-establish themselves at some future time.   She confronted the impact of adoption on existing family relationships, as she was required to do by the statutory checklist.  She did not consider that there was any welfare value in maintaining the relationship with the parents, but accepted the potential risk to Liam's welfare in the severing of the legal relationship with his half-siblings.  However, she did not consider that this would have a drastic impact, because the actual relationships would continue and not be lost by adoption.  She accepted the advantage of special guardianship as treating the three children the same, but she found that for Liam it is different.  Unlike Simon and Stephen, he does not have a legal relationship with a birth parent, so adoption will (paradoxically, she might have said) give him the same opportunity as they have.  Nor did the Recorder see any real likelihood of friction between the three children arising from their different statuses, given the unconditional commitment of Mr and Mrs Smith to them all.

14. The leading authority on the issue that arises in this case is Re S (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 54.  This was an appeal by a foster carer who was refused an adoption order.  In his judgment, Wall LJ surveyed the historical background to special guardianship orders under the Children Act 1989 and the equivalent provisions in relation to adoption.  That survey, and in particular the observations at paragraphs [47-49], is helpful, and the passages emboldened below are of particular relevance to a case of the present kind:

1. "Certain other points arise from the statutory scheme:-

(i) The carefully constructed statutory regime (notice to the local authority, leave requirements in certain cases, the role of the court, and the report from the local authority - even where the order is made by the court of its own motion) demonstrates the care which is required before making a special guardianship order, and that it is only appropriate if, in the particular circumstances of the particular case, it is best fitted to meet the needs of the child or children concerned.

(ii) There is nothing in the statutory provisions themselves which limits the making of a special guardianship order or an adoption order to any given set of circumstances. The statute itself is silent on the circumstances in which a special guardianship order is likely to be appropriate, and there is no presumption contained within the statute that a special guardianship order is preferable to an adoption order in any particular category of case. Each case must be decided on its particular facts; and each case will involve the careful application of a judicial discretion to those facts.

(iii) The key question which the court will be obliged to ask itself in every case in which the question of adoption as opposed to special guardianship arises will be: which order will better serve the welfare of this particular child?

1. The special nature of the jurisdiction also has implications for the approach of the courts:-

(i) In view of the importance of such cases to the parties and the children concerned, it is incumbent on judges to give full reasons and to explain their decisions with care. Short cuts are to be avoided. It is not of course necessary to go through the welfare check-list line by line, but the parties must be able to follow the judge's reasoning and to satisfy themselves that he or she has duly considered it and has taken every aspect of it relevant to the particular case properly into account

(ii) Provided the judge has carefully examined the facts, made appropriate findings in relation to them and applied the welfare check-lists contained in section 1(3) of the 1989 Act and section 1 of the 2002 Act, it is unlikely that this court will be able properly to interfere with the exercise of judicial discretion, particularly in a finely balanced case. (We think it no co-incidence that all three of the appeals with which these judgments are concerned fall to be dismissed, although each reaches a different result.)

(iii) In most cases (as in these three appeals) the issue will be, not the actual placement of the child, but the form of order which should govern the future welfare of the child: in other words, the status of the child within the particular household. It is unlikely that the court need be concerned with the alternative of making "no order" under section 1(5) of the 1989 Act and 1(6) of the 2002 Act.

(iv) For the same reason, the risk of prejudice caused by delay (to which section 1(2) of the 1989 Act rightly draws attention) may be of less pivotal importance. Indeed, in many cases, it may be appropriate to pause and give time for reflection, particularly in those cases where the order is being made of the court's own motion. This is a point to which we will return specifically when considering the first appeal.

1. We would add, however, that, although the "no order" principle as such is unlikely to be relevant, it is a material feature of the special guardianship regime that it is "less intrusive" than adoption. In other words, it involves a less fundamental interference with existing legal relationships. The court will need to bear Article 8 of ECHR in mind, and to be satisfied that its order is a proportionate response to the problem, having regard to the interference with family life which is involved. In choosing between adoption and special guardianship, in most cases Article 8 is unlikely to add anything to the considerations contained in the respective welfare checklists. Under both statutes the welfare of the child is the court's paramount consideration, and the balancing exercise required by the statutes will be no different to that required by Article 8. However, in some cases, the fact that the welfare objective can be achieved with less disruption of existing family relationships can properly be regarded as helping to tip the balance."

15. Lastly, in Re M-J (Adoption Order or Special Guardianship Order) [2007] EWCA Civ 56, a decision given at the same time as Re S, a Recorder had approached matters on the basis that as a general rule in a family placement special guardianship is the preferred option unless there are cogent reasons to the contrary.  As to that, Wall LJ said this at [17]:

"With respect to the recorder, we think her formulation… puts matters too strongly.  Whilst special guardianship orders may well have been designed to encompass, and in many cases are suitable for, long-term familial placements, we do not think it helpful to approach any given case on the basis that one option is 'the preferred option' unless there are cogent reasons against it."

16. Standing back, and considering the present case, I can understand why the arguments advanced by the Guardian led to permission to appeal being granted.  On the somewhat unusual facts, it seems to me that there were respectable arguments to be made for either form of order, and that the outcome did not essentially depend upon approval of one professional witness or criticism of the other.  Everyone was agreed on the factors that needed to be considered; it was a question of the weight to be given to them, and to that there may be no one right answer.  The Recorder may also have given the impression, by repeatedly referring to special guardianship as a 'lesser' order, that she regarded it as an intrinsically less good order.  Similarly, the reference to 'a right to parents' raises more questions than it answers.  Liam has a right to respect for his family life, but that does not mandate any particular outcome.

17. All that said, my conclusion is that the Recorder's decision comfortably withstands the critique it has received.  She was in my view entitled to view the enhanced security of adoption as being precious to Liam and to Mr and Mrs Smith.  The fact that the placement is not, and may never be, disputed by his parents removes an additional reason for making an adoption order, but does not deprive adoption of the advantages it will bring to Liam, not only now but throughout his life.  Those lifelong consequences were something that the Recorder was not only entitled but obliged to have regard to under the welfare test set by s.1(2) ACA 2002.   Similarly, she was entitled to regard the difference in status between Liam and his half-brothers as being a lesser, and manageable, consideration.  He will still benefit from shared family life with them, despite the legal change. 

18. Overall, faced with a choice between two options that each had advantages and disadvantages, the Recorder reached a clear and fully-reasoned decision.  Even if the choice facing her was somewhat more finely-balanced than her judgment might suggest, her conclusion fell well within the powers that were hers to exercise.

19. I would dismiss this appeal.

McFarlane LJ:
20. I agree with all that My Lord, Lord Justice Peter Jackson, has said in explaining his reasons for dismissing this appeal. I wish, however, to add these few words which explain why I consider that the Recorder's order was not only not 'wrong', but was, indeed, the right order for this young child.

21. The distinction in status, as between the three boys, that is created by the Recorder's order is, in my view, fully justified for the reasons that are spelled out so clearly in her judgment. Simon and Stephen have a live and active relationship with one of their parents, whereas Liam does not, never has had and is unlikely to have in the future. Liam's need for a full, life-long, parental relationship, in legal terms, with Mr and Mrs Smith is therefore a need of an altogether different order to that of his two half-siblings. I would therefore go further than My Lord in holding that the Recorder was right to prioritise this need, which could only be satisfied by the making of an adoption order, despite the skewing of the legal relationship that Liam has with his half-brothers that adoption would cause.

Gross LJ: 
22. I also agree that the appeal should be dismissed, for the reasons given by Peter Jackson LJ.
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