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Home > Judgments > 2005 archive

J & P v C & Suffolk County Council [2005] EWHC 1016 (Fam)

Applications for contact order, adoption order and discharge of a care order. Contact and care order adjourned. Adoption order refused.

Case No: IP33/03

Neutral Citation Number: [2005] EWHC 1016 (Fam)

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

ON TRANSFER FROM THE IPSWICH COUNTY COURT

IN THE MATTER OF THE ADOPTION ACT 1976

AND IN THE MATTER OF THE CHILDREN ACT 1989

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 25/05/2005

Before :

THE HONOURABLE MR JUSTICE CHARLES

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Between :

J and P Applicants

- and -

Miss C 1st Respondent

S County Council 2nd Respondent

Jeremy Rosenblatt (instructed by Haywards) for the Applicants

Annabel Wentworth (instructed by Gotelee & Goldsmith for the First Respondent

Susan Cooper (instructed by SCC Legal ) for S County Council (2nd Respondent)

Jeff Stevens (Stevens Solicitors) for the Guardian ad Litem

Hearing dates: 25 to 29 April, 3 to 5 May 2005

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Judgment Approved by the court

for handing down

(subject to editorial corrections)

The Hon Mr Justice Charles

This judgment has been distributed in private. It consists of 164 paragraphs and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.

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

The Hon Mr Justice Charles :

Introduction

General

1. This case concerns a young boy called SH he was born on Christmas Day 2000. He is therefore four years old. He was removed from the care of his mother when he was seven months old (i.e. in July 2001). He was made the subject of a care order on the 2 July 2002. The care plan was for adoption.

2. On 23 July 2002 SH's mother had a second child (S) who is a girl. She and SH do not have the same father. S was made the subject of a supervision order on the basis that she remained in the care of her mother and her then partner, S's father. This indicates, as is common ground, that the mother had made considerable changes in her lifestyle. That progress has continued and S remains in her mother's care. The supervision order has now come to an end.

3. SH was placed for adoption on 29 March 2003. Before that he had been placed with two foster carers firstly for a short period from 25 July to 7 August 2001 and from then with the same foster carer.

4. When the care order was made in July 2002 the judge also made an order under section 34 (4) Children Act 1989. In his judgment the judge concluded that the changes the mother had by then made with her new partner (the father of S) were insufficient and too late for SH, and although she deserved praise for the changes she had made it was highly unlikely (a) that she would ever be able to successfully parent SH, and (b) that she and members of her family who opposed adoption would be able to conceal their feelings from him as he grew older. Pursuant to that order direct contact between SH and his mother was brought to an end in December 2002. This was some four months before he was placed for adoption with the prospective adopters (J and P).

5. The mother met with the prospective adopters in March 2003 and in the letters that followed they indicated that they would, or would be likely, to promote direct contact post adoption. But the question of direct contact being reintroduced was not revisited, or otherwise addressed. The prospective adopters have indicated that they would support contact between SH and his mother (and his half sibling) post adoption.

6. In June 2003 (and thus one to two months after placement) an anonymous complaint was received by the local authority concerning the care given by the prospective adopters to their children. At that time they had adopted two boys (C and J) and SH had been placed with them. The allegations included one that they administered corporal punishment to the children.

7. The prospective adopters, J and P made their application to adopt SH on 23 October 2003.

8. Following, amongst other things, the first statement of the mother dated 23 January 2004, the first statement of the prospective adopters dated 15 March 2004 and the first two reports of the Guardian dated 15 February 2004 and 7 May 2004 the adoption application was transferred to the High Court on 20 May 2004.

9. On 3 August 2004 the mother made an application for the discharge of the care order in respect of SH, and on 18 March 2005 she made an application for contact with SH.

10. The same guardian has been involved in the original care proceedings and in these proceedings. In connection with these proceedings she has prepared the following reports:

a) A report dated 15 February 2004

b) A report dated 17 May 2004

c) A position statement dated 22 August 2004

d) A report dated 4 February 2005

e) A report dated 3 March 2005, and

f) A report dated 8 April 2005.

11. She also gave oral evidence during which she changed her position and recommendation having heard the prospective adopters give their evidence. This change was a development of, or progression from, her earlier conclusions and recommendations rather than something completely new.

The applications before the court

12. As appears above there are three applications before the court namely:

i. an application for an adoption order,

ii. an application to set aside the care order in respect of SH, and

iii. an application by the mother for contact with SH.

13. As is well known on the second and third applications (to which the local authority are necessary parties) the welfare of SH is the paramount consideration for the court. But this is not the position on the application for an adoption order. On that application it is well known, and was common ground, that the court has to consider the application in two stages. First it has to consider whether adoption is in SH's best interests and if it concludes that it is, it then has to go on to consider whether parental consent can be dispensed with.

14. A direction was given by a district judge that the application to discharge the care order should be dealt with first. It did not seem to me that it was appropriate or practical to consider this application on a free standing basis and that the appropriate course was to consider all the applications together, largely because in considering what would best promote SH's welfare the competing practical alternative orders need to be considered. The parties agreed that this was the case.

Underlying problems

15. The timetable set out above shows that this case raises issues as to whether a child (SH) who has been placed pursuant to a care plan approved by the court for adoption for just over 2 years should (i) be adopted, (ii) stay where he is under a different order or (iii) be moved as part of a plan to consider whether he should be returned to his mother (no-one argued that such a move could take place immediately). It therefore raises, or potentially raises, a range of alternatives against the backdrop that SH has been placed for adoption for two years and has inevitably formed attachments during that placement (the nature and strength of which were disputed).

16. To my mind it was properly asserted and accepted by the mother in her written evidence, and on her behalf by her counsel, that if it was demonstrated that SH was well placed, that his needs were being met appropriately and that he was happy:

i. she would not be seeking to set aside the care order, and

ii. she would probably not be actively opposing adoption and would recognise that the argument for dispensing with her consent to adoption (if she felt unable to give it) would be strong.

This was because of the initial justification for the placement, its length and notwithstanding the considerable changes and improvements in her lifestyle the difficulties and risks of a plan to return SH to the mother's care.

17. It is thus unsurprising that those who support the making of an adoption order point to the good aspects of SH's care by the prospective adopters, his membership of their family and the difficulties and risks of both (a) the preparatory steps that would have to be taken to see whether a return to the care of his mother was the right course to take, and (b) such a move.

18. The mother's opposition to adoption was initially based on the changes in her lifestyle (and, as I understand it, her wish for direct contact if her wish to be fully assessed to see if she could care for SH and for him to be returned to her were not fulfilled). After the guardian had first reported (and since that time) her opposition to adoption, and her application to set aside the care order, have understandably and inevitably also been based on points raised by the guardian as to deficiencies, or possible deficiencies, in the care being given and likely to be given to SH by the prospective adopters.

19. Thus the standard of parenting that the prospective adopters have given, and are likely to give, to SH has been a fundamental issue raised by the guardian since her first report in February 2004.

20. One of the problems in this case has been in obtaining a clear picture from the prospective adopters of (a) the detail of their day to day parenting, and (b) their attitudes to the points raised by the guardian concerning smacking, home education and the particular needs and vulnerability of SH.

21. These points were raised against the following background, and they give rise to the following additional points:

i. When the care order was made, having regard to his care over the first seven months of his life and possibly other matters, SH was considered to be a vulnerable child who would need better than average parenting. The guardian remains of that view.

ii. The mother has made very considerable and significant changes to her lifestyle, she is now looking after S, and she has been assessed as someone who will accept help and has a fine ability to look after a child in her care. She accepts that a slow re-introduction between herself and SH would be preferable, if not essential, but asserts that there has not been a sufficient or appropriate assessment of her ability to care for SH. It became common ground that this was the case. It follows that on the present evidence the court could not discharge the care order on the basis that SH was to be placed with his mother.

iii. A number of positive aspects of the parenting of the prospective adopters have been identified, SH has lived with them and the two boys they have already adopted since March 2003 and, from her placement, the younger girl (a half sibling of one of the older boys). They form a family unit.

iv. There is a divergence of views as to the nature and strength of the attachment that SH has to the prospective adopters (and their family unit).

v. Problems have been identified in aspects of the parenting of the prospective adopters. These relate to (a) the fact that they have smacked all the children as an aspect of their discipline and care, (b) their views on smacking and home education, (c) their approach to the advice of others on such issues, and the making of decisions relating to such issues in the care of the children, and (d) their failure to comply with an agreement not to use physical punishment to discipline SH.

vi. In her reports the guardian does not recommend adoption, whereas the local authority do.

vii. In her oral evidence the guardian moved on in her thinking in the light of the evidence, in particular that of the prospective adopters, and did not recommend that SH should remain in their medium to long term care.

22. I record that I have considerable sympathy for both the mother and the prospective adopters in respect of the difficult emotional positions they find themselves in. In my view the lack of (a) a thorough investigation of the issues raised by the guardian, and (b) any contingency planning or discussion between the local authority and both the prospective adopters and the mother as to alternatives relating to the short, medium and long term care of SH, have contributed to those difficulties. The local authority have a responsibility for these failures but it seems to me that they share it with the advisers of the parties who could have sought directions that the local authority carry out the necessary work and address the relevant contingency planning. Indeed in my view this case cried out for thorough case management at an early stage at which all the parties should have considered the issues and the work that needed to be done in respect of further assessment and contingency planning.

Criticisms

23. During the hearing I made, and in this judgment I make, a number of criticisms of the preparation and approach taken to this case, particularly by the local authority. In doing so I acknowledge the benefit of hindsight and that this case raises some difficulties of analysis and in respect of the course that should be adopted in respect of assessment of the mother and contact. I also acknowledge that it was reasonable for the local authority, the guardian and the mother to expect that the instructions given to the independent social worker Jan Cavanagh to address issues of using smacking, and to explore alternative methods of applying boundaries might have produced more and might have involved a more rigorous examination of the issues. But, for reasons which I do not understand, she elected not to read the background information or concerns and preferred to work just with the information J and P brought to her work with them. I am unclear when it became known that this was her approach and therefore that she would not be testing or challenging that information.

24. Having heard the prospective adopters give evidence I also acknowledge that an investigation of the allegations made against them (in the anonymous letter) and of the points raised by the guardian would not have been an easy task. Indeed I find that they mislead the local authority and others (including Jan Cavanagh). Whether they would have done so if a more rigorous approach had been adopted is a matter of speculation.

Parental consent

25. The question whether the court can dispense with the consent of SH's mother to an adoption order being made only arises if the court concludes that SH's best interests will be promoted by an adoption order being made.

26. However it seems to me that (i) at the initial stages of the making a care order on the basis of a care plan for adoption, the placement of a child for adoption, and the issue of an application for an adoption order, and then (ii) throughout those proceedings and the proceedings issued by the mother, the fact that an adoption order cannot be made unless the relevant parental consent is given, or is dispensed with, should not be forgotten.

27. In this case SH's father does not have parental responsibility and the relevant consent is that of his mother. Thus in my judgment at each of the above stages all the relevant decision makers in respect of the care plan for adoption, the placement of SH for adoption and the issues raised by the mother's applications should have considered whether the mother was likely to consent to an adoption order and, if this was not likely (or she did not do so), whether it was likely that the court would dispense with her agreement under section 16 Adoption Act 1976.

28. The mother's consent could only be dispensed with on the basis that it was being unreasonably withheld. It is well known that the test for dispensing with consent is an objective one and that there is the potential for a band or range of differing decisions each of which may be reasonable.

29. In my judgment, any proper consideration of this case by the local authority, the prospective adopters (with the benefit of advice from their lawyers and those involved through the local authority acting as an adoption agency) and the mother (again with the benefit of advice) would have identified that this was a case in which there was a very real prospect that the mother would refuse her consent (indeed that has been her position throughout the adoption proceedings) and that even if, as urged by the prospective adopters and the local authority, the court was persuaded that adoption was in SH's best interests it nonetheless would not be able to dispense with the mother's consent and an adoption order would not be made.

30. To my mind this prospect should have informed the thinking of all involved from the time that the anonymous complaint was made about the prospective adopters in June 2003. Further, as the proceedings progressed, in my judgment any proper consideration of the competing arguments would have demonstrated that the risk that the court would not be able to dispense with the mother's agreement to an adoption order was a very real one. This should have triggered:

i. a realisation that a thorough investigation of the issues raised by the guardian in respect of smacking and home education to ascertain (a) what had happened, (b) the behaviour, views and stance of the prospective adopters in respect of such matters, and thus (c) what was likely to happen in respect of such matters if SH was adopted or remained with the prospective adopters was important, and

ii. contingency planning, which to my mind has been woefully absent in this case.

Contingency planning/ assessments / possible results / background to my approach in this case

31. Clearly the planning and assessments that are necessary depend on the issues, the possible results and the respective positions of the parties in respect of them.

32. The court is the statutory decision maker on:

i. whether an adoption order should be made,

ii. what orders or directions should be made for contact, and

iii. whether the care order should be discharged.

33. But if the court refuses an adoption order, and does not discharge the care order, the statutory decision maker as to the placement of SH is the local authority, and they have to make arrangements for his continued placement with the prospective adopters, or elsewhere, whilst he remains a child subject to a care order.

34. The identification of the issues, and the consideration of the investigations and assessments that should be carried out should have regard to those roles, the principles to be applied by the relevant decision makers and the triggers for different results that would affect the placement of SH. Thus alternatives to adoption need consideration against the possibilities that an adoption order was refused on the basis that either the court finds that:

i. adoption would be in SH's best interests (and thus that his welfare would be best promoted by him being placed with the prospective adopters throughout his childhood) but parental consent cannot be dispensed with because the mother's refusal of consent is within the band of decisions reasonably open to her, or

ii. adoption would not be in SH's best interests.

35. The court could conclude that adoption was not in SH's best interests because either:

i. his welfare would be not best promoted by him remaining in the care of the prospective adopters as an adopted child, although on balance it would be so promoted by him remaining in their care on some other basis (which was the position envisaged by the guardian in her reports), (reason 1), or

ii. his welfare would not be promoted by him remaining in the care of the prospective adopters in the medium to long term (which was the view the guardian reached after she had heard the prospective adopters give evidence) (reason 2).

36. Reason 1:

i. triggers a need to consider long term fostering and possibly the making of a residence order (although this was never asked for, or suggested as an alternative, by the proposed adopters or the local authority, it was identified as a possibility by counsel for the mother in her opening statement),

ii. could found a conclusion that the mother's application to discharge the care order should be dismissed without any further assessment of her ability to care for SH, because the competing positions would be between (a) maintaining a placement that the court considered promoted SH's best interests, and (b) the possibility of his return to the care of the mother which she accepts has risks and if it was to take place would involve careful planning and reintroduction, and

iii. triggers the need to consider contact on the basis that SH's home should be, and would be, with the prospective adopters.

37. Reason 2 triggers different considerations and in particular an assessment of SH's needs and the mother's ability to care for him against a different background (namely that the continuation of his present placement would not promote his medium to long term welfare). It also raises difficult points as to whether and if so how an assessment based on a removal of SH from the care of the prospective adopters and directed to a consideration of his placement with his mother could be carried out in a manner that was not harmful to, or caused as little harm as possible to, SH and the underlying purpose of the assessment whilst SH remained either in the care of the prospective adopters, or was placed elsewhere for adoption or on a short term basis.

38. Naturally the difficulties and uncertainties relating to a removal of SH from the prospective adopters impact on the assessment of the course that would best promote his medium to long term welfare.

39. Having placed SH for adoption, and having regard to their view that adoption would promote his best interests, the only proposal or care plan advanced by the local authority until after the hearing had commenced was adoption. Late in the hearing they considered the prospect of long term fostering.

40. The focus of the points raised by the guardian and the mother (largely by reference to the investigations and reports of the guardian) was as to whether SH's placement with the prospective adopters was promoting, and would be likely in the future to promote, his needs and was in his best interests.

My approach

41. In my judgment unsurprisingly (from an initial reading of the papers) in final submissions:

1) Although the local authority still recommended and supported adoption they accepted that this was only by a fine margin, and thus they recognised that a different conclusion as to what would best promote SH's welfare, and be in his best interests, was within the range of decisions open to a reasonable parent. It followed that having regard to the authorities on dispensing with parental consent counsel for the local authority did not argue (or adopt the argument to be advanced by the prospective adopters who are the persons primarily concerned to establish the point) that the mother's consent to an adoption order could be dispensed with.

2) The prospective adopters maintained their application for an adoption order but their counsel recognised that he had very real difficulties in seeking an order that the mother's consent be dispensed with. Counsel for the prospective adopters therefore supported in the alternative a long term foster placement with the prospective adopters together with an order under s. 91(14) Children Act 1989 limiting the mother from making further applications under the Children Act 1989 without permission of the court. In doing so he was adopting a suggestion I had made with a view to providing a secure platform for introducing contact between the mother (and S) and SH on the basis that his home was, and subject to permission being given by the court to challenge that position, would remain with the prospective adopters.

3) The mother opposed an adoption order being made but recognised that the court had insufficient information to enable it to discharge the care order, or to approve a care plan and a course which initiated reintroduction between SH and his mother on the basis that SH would be returned to her care. She recognised that further assessment was appropriate before the chances of successfully effecting such a return were quantified and urged that direct contact should begin as soon as possible.

4) No-one sought a residence order.

5) The reality was that the parties accepted that at this hearing the court would not be able to make either (a) an order for adoption, or (b) an order discharging the care order, and thus that following the hearing the statutory decision maker as to the placement of SH was the local authority and not the court.

42. In my view they should have reached that conclusion, or recognised that it was a very real possibility, much earlier.

43. This opens the door to the possibility of the court simply refusing to make an adoption order and adjourning the mother's application for further investigation and assessment on the basis that the decision maker as to placement is the local authority, and insufficient investigation and assessment has been carried out. Unsurprisingly after a seven day hearing which addressed issues that would be fundamental in any such further placement, investigation and assessment I do not propose to do that.

44. Rather I shall consider in the light of the evidence the fundamental underlying issues relating to the standard of parenting that has been given to SH and is likely to be given to him by the prospective adopters.

45. That consideration will include the point whether before any decision is made on placement, or as to the way ahead, a further assessment along the lines of that sought by the guardian in her reports, but opposed and refused by a district judge, should be carried out.

46. As I have said a development in the case was that after hearing the prospective adopters give evidence the guardian moved from expressing doubt as to their ability to provide SH with sufficiently good parenting and thus her decision not to support adoption and seek further assessment (including an assessment of SH's attachment to them and of their parenting) to:

i. concluding, without the benefit of or feeling the need for, further assessment that the prospective adopters were not providing, and were unlikely to provide, SH with sufficiently good parenting, and thus

ii. changing her recommendation from one that SH remain with the prospective adopters as a foster child to one that he be removed from their care.

Unsurprisingly the mother supported and argued for that conclusion.

47. A further development was that the local authority made it clear that they were contemplating long term fostering in substitution for an adoption. This was on the basis that they were of the view that the relevant fostering regulations were directory and that the relevant director would consider, and as presently advised (but subject to further assessment and consideration) would be likely to approve, such a placement even if the fostering panel did not (because of the prospective adopters' stance relating to corporal punishment or otherwise). This stance reflected the view of the local authority that on balance SH's best interests would be promoted by him remaining where he was on a long term foster placement.

48. This reflects:

i. the difference in view between the local authority on the one side and the guardian on the other as to the standard of, and approach to, parenting of the respective adopters and their abilities to provide appropriate parenting to SH, and

ii. the point that an assessment of the attitudes, approach and abilities of the prospective adopters is a central issue.

In this context their credibility as to aspects of their care and approach to parenting is relevant. The court is in the best position to judge such issues because it has heard evidence from the prospective adopters which has been tested by cross examination. No investigation could have contained that element and the investigators would not be fact finders.

49. Thus, whilst acknowledging that I am not the decision maker as to SH's placement whilst he remains a child in the care of the local authority, I propose to deal with this difference of view between the guardian and the local authority and indicate what I think the way ahead should be having regard to the various alternatives and my findings on the evidence.

50. As appears above, by the end of the hearing the effective alternatives as to placement were placement with;

i. the prospective adopters as a long term foster child,

ii. the prospective adopters as a short term foster child whilst plans for the future were made and assessed,

iii. other foster parents whilst plans for the future were made and assessed, or

iv. other prospective adopters.

The witnesses

The psychologists

51. Two psychologists have reported but neither has seen both the mother and the prospective adopters and SH. Late in the day (early April 2005) the guardian sought a further report by the psychologist who had seen and reported on the mother (Dr Bisbey) on the basis that it would be of assistance if she had also seen SH and the prospective adopters. She sought this primarily in the context of the mother's applications but also, as I understand it, to inform her view on the quality of the parenting of SH by the prospective adopters and thus on the adoption application. That application was opposed by the local authority and the prospective adopters and refused by a district judge. There was no appeal and the mother did not seek an order for further identified assessments of herself, or of SH and his present needs and attachments.

52. To my mind the positions of the parties as to (a) the guardian's application for a further assessment, and (b) the other assessments that were made (and thus the instructions given to the psychologists) is a further indication that the parties were not giving proper regard to the difficulties raised in this case and the need to carefully and fully consider alternatives to adoption, even if only to confirm the views of those who supported it that adoption was in SH's best interests and there was a reasonable prospect of dispensing with the mother's consent.

53. Dr Bisbey had reported on 30 December 2004, she saw the mother but not SH or the prospective adopters. It followed from that and the basis of her instructions that she did not, and was not was able on a properly informed basis to:

i. address specific questions as to the mother's ability to parent SH by reference to her observations of them both, or

ii. address questions as to SH's attachment to, and care by, the prospective adopters and his present behaviour and needs.

She also gave oral evidence.

54. She confirmed her report which in turn confirmed the progress the mother has made and that:

"In my opinion, [the mother] has a fine ability to meet the needs of a child in her care and could meet the needs of a child with behavioural problems given therapeutic support and training in management of difficult behaviour (such as using reward systems and conditioning methods)."

55. She explained that if she had been instructed as the guardian had recommended late in the day she would have carried out additional psychometric tests on the prospective adopters and observed them and SH. In answer to a question from me she confirmed that the additional information that this would have provided to the court would have been a psychologist's view based on that additional work on matters relating to the court's assessment of the issues after it had heard evidence from the parties and the guardian.

56. A psychologist, whether Dr Bisbey or any other psychologist (a) would not be the decision maker albeit that he, or she, having seen all relevant parties could express a view on the ultimate issues for the court, and (b) would not be able to make findings of fact.

57. Mrs Beazley Richards wrote two reports dated 27 April 2004 and 29 June 2004. In the second she answered questions raised by reference to the first. As will appear later these reports straddled the agreement signed by the prospective adopters in June 2004 that they would not use any form of physical punishment to discipline SH. They predate the mother's application for discharge of the care order.

58. Mrs Beazley Richards carried out some psychometric testing of the prospective adopters and visited their home on one occasion when she observed them with SH and the other boys. She concluded, amongst other things that:

"SH presented as a very happy young child, who has clearly formed strong attachments to J, P and his foster brothers. Initially SH was willing to be alone with me, a stranger to him, but he soon became anxious that he was not with P. Throughout the assessment, SH was very demanding of adult attention, which after spending some time together, included me. While he was able to play happily with his foster brothers, he would on occasion compete with them for attention by becoming quite 'stroppy' and difficult. P, who was clearly aware of the extent of SH's need for attention described him as "very tiring".

During a conversation with P, she informed me that she did not believe in trying to make SH learn things, but ensured that she and J are very descriptive in their everyday language. For instance, with regards to colours, they state the colour of objects when talking about them.

Both J and P demonstrated thorough commitment and understanding towards the children through being actively involved in their lives, attending school meetings, being aware of their individual developmental needs and placing these above their own needs, and encouraging the children to develop independence. While they set and enforce rules for the children, they are able to be flexible about these rules, with discipline attained through the use of love and explanation as well as occasional physical chastisement. Neither J nor P suffer with emotional problems, they demonstrate patience to the children, and allow the children to be emotionally expressive, providing a sense of safety and security in which to do so, which is vital for their development. I believe that this to be a very stable environment for the children.

There did not seem to be any adverse effect upon SH of his physical chastisement. He appeared to be a happy, robust, feisty little person, certainly not cowed, or even overly well behaved, just an emotionally normal little boy of his age. While I have, and indeed expressed that I have, doubts about the wisdom, efficacy, or ethics of big people hitting little people, I do not believe that having been hit in the past emotionally or psychologically damaged SH, I would like to make a general comment, however.

What is needed is for J and P to work towards using physical punishment as a last resort, and to use their other options to an increasing degree. For instance, they should make even more use of positive reinforcement, and when deemed necessary, discipline can take the form of removal of privileges rather than physical punishment.

I am sure that they intend to reduce the use of physical chastisement. (This is paragraph 11.3 of her report).

The attachment between SH and his prospective adopted parents is a very deep and secure one. I am certain that the emotional and psychological effects of his removal from them would be seriously detrimental to his well being, and may have long-lasting, or even permanent effects upon his ability to form attachments in the future. I recommend that he stay at his present home. (This is paragraph 11.4 of her report)."

59. In her report dated 17 May 2004 the guardian made the following comments on the psychological assessment carried out by Mrs Beazley Richards:

"The comment on the attachment between SH and the applicants at paragraph 11.4 is brief indeed and there is no explanation as to the basis on which the assessment has been reached. Very surprisingly, to me, no analysis of SH's early experiences or attachment history or the significance of this for the care he needs, is provided.

Perhaps even more surprising, to me, is that at paragraph 11.3 there is what seems to me to be a bald statement that the author does not believe that SH has been either physically or emotionally damaged by being hit in the past by the applicants and a statement of confidence that they intend to reduce their hitting in future.

I had expected a full psychological analysis of this matter taking into account SH's past experiences, his presentation over the years, the psychological and psychometric assessment of the applicants and the great body of research that now informs the thinking of the vast majority of informed child care professionals in relation to hitting in general, and more particularly in relating to hitting vulnerable small children.

It appears that the psychologist has relied on report by the applicants and her own observations at interview and concluded that SH is "just an emotionally normal little boy" with a deep and secure attachment. If this is so, then he has certainly suddenly made very deep-seated changes from his presentation as described by the social worker in the Schedule 2 report written only four months previously and quoted below at paragraphs 92-94.

If SH really does now have a "deep and secure" attachment and is an emotionally normal little boy it may perhaps be surprising that the applicants continue to find that their other resources of child management are exhausted such that they have a need to smack him as a last resort."

60. In her second report she answered the following questions in the following manner:

You will note that in the Schedule 2 report paragraphs 92-94 that the Social Worker was concerned about some of SH's presentation and his aggression generally. How does this fit in with your conclusion that SH is just "an emotionally normal little boy" with a deep and secure attachment?

I acknowledge that what I observed appears to be different to that observed by other professionals that have visited the family previously. The statement I made that SH "appeared to be a happy, robust, feisty little person, certainly not cowed, or even overly well behaved, just an emotionally normal little boy of his age", was based on my observation on that day. I would like to emphasise that for the last eleven years I have probably averaged one to two observations per week, of children and the people parenting them, and am confident that I am able to make rapid assessments of emotional functioning and relationship.

Clearly if you feel you wish to make any further comments about any contents of the Guardian's report then please feel free to do so, in particular with regard to the applicants attitude to smacking as part of normal parenting practice, possible home tuition and accepting professional advice in relation to smacking and home tuition.

I would like to state that I do not in any way condone the use of physical chastisement between any human beings, let alone from an adult to a child. However, the conclusions in my report were my opinions based on the need to balance the various factors relating to SH's past and present experiences. Whilst I respect the Guardian's report, I stand by my conclusion that SH will be far less emotionally damaged remaining in the care of P and J, than he would being moved on again to further carers. I completely agree with paragraph 59 of the Guardian's report, and suggest that exploration with the applicants into what key characteristics of the behaviours demonstrated by SH result in his being smacked, is carried out.

With regards to accepting professional advice, P informed me during the interview that she and J have agreed not to use the chopstick on the children following comments in a previous report, and that they she now understood that speaking to SH in German may not be helping in relation to his language delay and thus also ceased doing this. This demonstrates that they are not averse to accepting advice from professionals, and positive working relationships should continue to be encouraged.

When SH first moved to live with the applicants, he was quite quiet and withdrawn and very compliant. This may have been indicative of the loss he felt at leaving his foster carer.

However, SH has settled in extremely well and has clearly gained confidence. His determined and strong-willed character is once again quite evident. SH knows what he wants and will protest, sometimes rather dramatically, if things do not go his way. He expresses his displeasure in a variety of ways including screaming, sulking and refusing food. Fortunately, SH does respond to firm boundaries and J and P work hard to overcome SH's challenging behaviour by developing a range of strategies.

61. I add that the Schedule 2 report signed in November 2003 contained the following passages:

"SH appears to experience intense emotions at times and he has not yet developed the ability to effectively address these emotions. There is a fine line between expressing affection and aggression. He also seems to have irrational fears and when encouraged to try something new, he can panic. --------------

SH needs a very patient, calm response to his behaviour. J and P are very careful about not placing SH under pressure to face his fears but they have made good progress with SH by firmly encouraging and reassuring him. -------------

It follows that SH's needs are now more complex than those of a child who experienced consistently good care in his early life. He presents as having insecure ambivalent attachments. -----------------------

SH already demonstrates that he can be strong-willed and stubborn. It is likely that he will continue to exhibit some very testing behaviour in the years to come and he will therefore require his permanent carers to have a higher than usual level of parenting skills."

62. In her oral evidence Mrs Beazley Richards made it clear that she did not advocate or support the smacking of children in general, or of SH, as a form of discipline. But she pointed to some research that indicated that non abusive corporal punishment was not harmful and that in the cases of some children a smack can avoid the escalation and continuation of problems and confrontation.

63. Her overall view, having regard to the point that the prospective adopters had recently admitted that P had smacked SH on four occasions since June 2004, was that she did not recommend an adoption order being made.

64. As appears above the guardian did not agree with some of Mrs Beazley Richards' observations. I return to this.

The local authority

65. The local authority through in particular the adoption placement social worker (Mrs Pope) and SH's social worker (Mrs Cosbie) have been strong supporters of the application for adoption. I also heard evidence from a social worker who had been involved at the time that SH had been placed with the prospective adopters (Mrs Clarke), who together with Mrs Pope prepared the Schedule 2 report. All these social workers gave evidence before me and they all impressed me as caring ladies who had SH's best interests at heart, and as social workers who perform their difficult jobs well on a day to day basis in their dealings with the individuals involved.

66. I am however sorry to say that in my view they did not receive appropriate guidance as to the work that they should do particularly in the context of the anonymous complaint that was made about the prospective adopters, the mother's application and her refusal of consent to an adoption order, and thus in respect of the issues raised as to SH being smacked and home education, and accordingly the standard of parenting given, and likely to be given, by the prospective adopters.

67. As I have already mentioned I add that having heard the prospective adopters give evidence I accept that an investigation and assessment of these issues with them by the local authority (or others) would not have been easy and would have involved issues of credibility. But the fact remains that the "hard" questions were not asked and pursued initially in the light of the anonymous complaint and later the guardian's reports or otherwise.

68. In her oral evidence the guardian fairly accepted that she might have pursued such questions further but I note it was only the guardian who made any real attempt to do so and it seems to me that given her role and that of the local authority (and the advisers to the other parties) she was being overly self critical. In her oral evidence the guardian expressed the view that she and others had been misled by J and P. I return to this and as appears later I agree with her.

69. Paragraph 38 of the guardian's report dated 5 April 2005, in which she recommended a further report by Dr Bisbey contains the following:

"In my opinion the assessment in relation to [the mother's] application is scant and incomplete"

She goes on to set out an inaccuracy in the reporting of the local authority of the views of the mother's health visitor which she had brought to their attention, in that the local authority had reported her to be of the view that the mother "would have major difficulty in managing the changed dynamics with S and her half sibling competing for attention" when her view as given to the guardian was that she felt that the mother would face the same possible difficulties as any parent in such circumstances. The health visitor also told the guardian that she did not understand how she could have been so misunderstood and checked back against her notes of the relevant conversation with Mrs Cosbie.

70. The response to this in the social worker's statement (Mrs Cosbie) dated 19 April 2005 is as follows:

The Local Authority has maintained its position throughout in that it would be a retrograde step for SH to be placed back with his birth parent.

[The mother] has not demonstrated any understanding of attachment, or of the significant harm breaking a secure attachment to primary carers can visit on a child rising five years old. In my interviews with [the mother], I felt that she thought being with his birth family would be enough to transfer his attachment. Research shows that transference of attachment becomes less easy as the child gets older and has to be handled very carefully, say when a child leaves foster care to be placed for adoption."

71. This reflects the view of the local authority on the adoption of SH. It does not answer the criticism as to (a) the quality of their assessment generally and of the points raised by the guardian on the standard of the parenting of the prospective adopters, or (b) the lack of any contingency planning if consent to adoption could not be dispensed with, or an adoption order was not made for other reasons, or (c) the inaccuracy of their reporting of the views of the health visitor. The local authority made a similar factual error in simply reporting the context of the Form E after it was pointed out to them by the guardian that a passage cited from it was inaccurate and gave a misleading impression. As to that a simple investigation of the readily available background material would have shown that the guardian was right to point out that the quote from the Form E was misleading.

72. Adequate explanations for these inaccuracies were not given, and the social worker was unable to advance a convincing case to refute the assertion that the assessment of the local authority in respect of the mother's application was scant and incomplete. In my judgment it was although I acknowledge that difficulties arose as to how best to carry it out. However the fact that no effective attempt to do so was made had the result that the local authority did not re-address the fundamental issues relating to the quality of the parenting given by the prospective adopters. I add that it seems to me that all parties should have been pressing for this to be done and thus should have been seeking appropriate directions to bring this about.

73. Late in the day in her statement dated 18 March 2005 the mother said:

"I note that in paragraph 4 and 5 of her Statement of the 9 March 2005 that the Social Worker, Diana Cosbie, indicates that she has visited J and P, the prospective adopters, on occasions and I believe that she has a very good working relationship with them. I met with the social worker myself in approximately January 2005. She is a very pleasant lady. I have to say that I do believe that she has a very good working relationship with the prospective adopters and that she has very much taken the stance that she will support them in their Application, no matter what. She has obviously invested a lot of time and energy in SH's case and of course I understand that she is very committed. At the same time I would question how neutral she is able to be as a result. When I met with her she presented me with various scenarios in relation to SH of difficulties that might be encountered and how I might deal with them. I was able to deal with all of her questions but I do feel that she was very much testing me a lot further than perhaps she would have done the prospective adopters. In her Statement she has not commented particularly upon the changes that have occurred in my life and has not dealt with the positives that might be available for SH if he were to be in my care together with his natural half-sister, my daughter S. I think that she has definitely approached her Statement from a certain viewpoint which is that she wants to justify the Local Authority's position in supporting adoption for SH and that she has not been open minded about other alternatives."

74. The social worker disputed the assertion that she would support the adoption application "no matter what". I accept that she would not do so and that throughout she has genuinely been of the view that to promote his best interests SH should be adopted by J and P. However in my view the remainder of this paragraph conveys a generally an accurate picture of the position and approach of the local authority and it is one that has resulted in them failing to properly appreciate and address (a) the welfare and other problems relating to the making of an adoption order, and (b) the quality of the parenting given by the prospective adopters, in the light of the points raised by the guardian and with appropriately open mind. (I repeat the point that they could have been pressed to do so by all the other parties who could, if necessary, have sought directions to bring this about at an earlier stage than the application made by the guardian in April 2005.)

75. For example, the local authority were surprised that very shortly before the hearing the prospective adopters admitted and asserted that in breach of the agreement they had signed in June 2004 that they would not use physical punishment to discipline SH, P had smacked him four times. As I mentioned in court when I was informed of this it seemed to me that in the light of the views of, and on, the prospective adopters expressed in the papers this was not something that was particularly surprising.

76. Further, at the start of the hearing the local authority were, or seemed to be, taking the stance that if SH remained in their care they would not place him as a foster child with the prospective adopters because of the risk that he would be smacked by them, but nonetheless an adoption order should be made on the basis of the hope that the mother would consent to it, or that the court would hold that she was unreasonably withholding her consent to it. Their reasoning for this was not spelt out by reference to possible alternatives. Indeed it seemed that possible alternatives had not been considered and weighed with adoption. Given the stance of the guardian and the issues in this case it is clear that they should have been. (As I have mentioned this has now been done by the local authority.)

77. Overall in my judgment the approach, assessment, preparation and presentation of this case by and on behalf of the local authority has fallen short of the standard the court and the other parties are entitled to expect.

78. In particular in my judgment until a very late stage they have failed to properly assess and consider (a) the points raised by the guardian as to the parenting of the prospective adopters and its potential effects on SH, (b) the legal framework and in particular the question of parental consent, and (c) the possible alternatives to an adoption order.

79. That is not to say that I do not accept (a) that there are (and always have been) arguments that favour an adoption order being made, and (b) that if a proper assessment had shown that it was clear, or there was a strong balance in favour of the view, that SH's best interests would be served by adoption that the mother's consent could have been dispensed with.

80. However it seems to me that the defects in the approach and assessment of the local authority have the consequence I should approach their assessment of the prospective adopters and SH's attachment to them with caution, whilst acknowledging and having regard to the view I have already expressed as to the qualities of the individual social workers involved and that their views are based on their observations and experience.

81. I add that I also heard evidence from a Mr Clifton who is the county permanence manager for the local authority as to the policy of the local authority on corporal punishment by adopters and foster parents. The adoption policy:

i. endorses and recognises that the local authority does not sanction any form of physical chastisement of children looked after by carers whether foster carers or adopters and that this is a requirement of foster care regulations, and

ii. asserts that the local authority will therefore not usually accept applicants who intend or are likely to use physical chastisement as part of their means of discipline for a child to be placed with them for adoption unless the circumstances are exceptional (e.g. where the child has already been living with the applicants, has formed a close relationship with them and the issue of physical chastisement has to be balanced against all the other factors in the case).

82. Mr Clifton told me, and I accept, that in his view if the Adoption Panel had been aware when it approved the match between SH and the prospective adopters that they would not promise not to physically chastise him, and thus reserved the right to do so in certain circumstances they would have been unlikely to have approved the match.

83. It follows that the local authority's support for adoption:

i. is with a couple whose match with SH would not, or at least probably, would not have been approved by the Adoption Panel and would have been outside the local authority's policy if what is now known had been known when the match was approved, which it was not, although it is clear that at that time the prospective adopters did smack, or thought that smacking was an appropriate disciplinary tool in the care of their two older adopted children, but

ii. accords with their stated adoption policy on the basis of a view that the present circumstances are exceptional.

84. Mr Clifton confirmed that to his knowledge the local authority in this case had not made any contingency plans if an adoption order was refused. He also told me that so far as he knew it was not normal for the local authority to make such contingency plans in cases where children who were placed for adoption by the local authority were the subject of contested adoption proceedings. If that is the case I would recommend that the local authority review that approach to ensure that there is appropriate contingency planning.

85. As I have indicated the local authority are not now asserting either that:

i. the fostering regulations prevent the local authority from placing SH as a foster child with the prospective adopters because they will not enter into an agreement that they will not use any form of corporal punishment, or

ii. if they remained responsible for placing SH they would not place him with the prospective adopters as a foster child.

Rather they are asserting that the relevant decision maker of the local authority will consider placing SH, and is presently minded to place SH, with the prospective adopters as long term foster carers for him. Thus they are to my mind sensibly in the circumstances of this case applying their adoption policy, rather than the letter of the fostering regulations, to the determination of what will best promote the welfare of SH.

The prospective adopters

86. In their final joint statement they asserted that they were not prepared to consider fostering. This statement was prepared with the benefit of legal advice and is dated 3 March 2005. To my mind it is a surprising assertion and is an indication that alternatives were not properly addressed with them.

87. It seems that no-one went back to them on this assertion before the hearing. During the hearing, perhaps unsurprisingly, they changed their position and indicated that they would agree to long term fostering if an adoption order was refused.

88. I return to other aspects of their evidence.

The mother

89. Her position has also changed during the proceedings. As I have said her initial objection to adoption was on the basis of the changes in her lifestyle and the long term nature of her then relationship with S's father. At that stage she knew nothing of the anonymous complaint made about the prospective adopters. She discovered this through the guardian's first report.

90. Also during the proceedings her relationship with S's father has broken down and she has formed a new relationship which she considers and hopes will be a long term and happy one, and one in which she may have another child or children.

91. She gave oral evidence during which she demonstrated that she had made considerable lifestyle changes since the care order was made in respect of SH and a willingness to take advice and seek help. She also demonstrated her considerable regret and upset relating to her failure to properly care for SH and the fact that this founded the removal of SH from her care and the making of the care order with a care plan for adoption. She recognised that she might encounter difficulties in caring for SH if he was returned to her care but in my judgment she does not fully appreciate the possible extent of those difficulties and the effects they could have on her present and future relationship with her daughter S and her present partner.

The guardian

92. As I have already pointed out she was involved in the original care proceedings and has written a number of reports in these proceedings. Her reports are lengthy and contain considerable detail and comment. They show the progression of her thinking through the proceedings.

93. The guardian:

i. raised the issue of the anonymous complaint that had been made and the issue of smacking of SH and the adopted children of J and P, and throughout has made it very clear that in her view J and P should not smack SH (even as a last resort) and that she bases that view on her general opinion relating to the smacking of children and her view that SH is a vulnerable child,

ii. raised questions over the issue of home education,

iii. sought a further assessment by Dr Bisbey, which was opposed and refused by the court,

iv. acknowledged good aspects of the parenting and care of the prospective adopters and its product, and

v. queried and disputed some of the conclusions of Mrs Beazley Richards.

94. I deal with the guardian's recommendations and her written and oral evidence in other parts of this judgment. In my judgment she approached her task with care and sensitivity and took a balanced approach and gave a balanced view.

Smacking / home education

95. During the evidence there have been references to research concerning the effects of corporal punishment. I have not studied these in detail. There was reference to (a) a body of research and views that conclude that no corporal punishment should be used, and (b) to some research and public opinion that did not oppose, or supported, non abusive corporal punishment. Both sides of the debate involve issues of degree. I am not in a position to make properly informed decisions as to the generality of the dispute. In this case to my mind what is more important is that:

i. the guardian, the local authority and all the professionals directly involved advocate, and advocated, the view that there should be no corporal punishment of children, and the prospective adopters were made aware of this,

ii. those who have advocated that SH should not be smacked have pointed to the fact that SH is a vulnerable boy and at least in part this is related to his upbringing during the first seven months of his life, and

iii. the prospective adopters disagree, or appear to disagree, with these views and to support corporal punishment in the form of smacking as a form of discipline.

96. In my judgment these matters are more important than the general debate because they relate to the approach of the prospective adopters to the parenting of SH and, as was mentioned during the hearing, to "how they tick". It also focuses on the likely short, medium and long term effects on SH of the parenting of the prospective adopters.

97. I accept and acknowledge and approach this case on the bases that:

i. the corporal punishment in the form of smacking and hitting of the children in their care by the prospective adopters has not been abusive in the sense that it has left physical bruising and marks,

ii. no-one has observed any fear or apprehension in their household,

iii. parents are not prohibited by law from administering corporal punishment of the type administered by the prospective adopters and therefore as adoptive parents they are, and would be entitled, to continue to do so, and

iv. I respect that entitlement, whilst remembering that my focus is on legal principles relating to the placement of a child (and thus welfare and parental consent to adoption) in respect of which it is only a factor.

98. Similarly I heard some evidence as to general views on home education. In particular it was common ground that a number of adopted children can have difficulties in main stream schooling and can benefit from being educated at home. If an adoption order was made as adoptive parents J and P would be the decision makers on whether SH was educated at home. In contrast to the position concerning smacking none of the professionals involved advanced arguments against home education on the basis that as such, or in general, it was or would be inappropriate.

99. Again in my judgment the main relevance of the issues relating to the prospect that SH would be educated at home mainly by P (if he was adopted by J and P) relate to the reasons for such a decision, how home education would be likely to work in practice and thus its likely effects on SH's upbringing.

The approach of the prospective adopters to, and their practice in respect of physical punishment

100. The prospective adopters have impressed a number of the people who have assessed them and observed them with the children placed in their care as thoughtful, caring, religious and honest people who were doing their best for the children and were providing them with a good standard of care. Although the guardian has also been impressed with a number of aspects of the care given by the prospective adopters, their home colourful and cosy home and their apparent honesty and thoughtfulness, her reports show that she has also had concerns about these matters and nagging doubts as to their approach to parenting and the quality of the care they are giving, and are likely to give, to SH. To my mind these doubts are compounded by the lack of a clear explanation of their position on the problems raised by the guardian and highlighted by the statement put in on the first day of the hearing that P had smacked SH on four occasions since August 2004. That statement times the incidents in August, and October 2004 and February and March 2005 but is short on particulars.

101. I sought to make it clear to the prospective adopters when they were giving their oral evidence that it was important that they explained their views and approach and thus "how they ticked" as parents and a family. Sadly they did not make this clear and they were unclear as to the frequency and the incidents when SH and the other children were smacked.

102. I have come to the conclusion that they have misled the local authority and others as to their attitude, and likely future attitude, to physical chastisement of the children in their care and as to the frequency and circumstances in which they have employed this method of trying to discipline the children in their care.

103. The general contention and position of the prospective adopters has been that they could not promise not to smack SH and that they regarded smacking of their children as an effective and appropriate last resort in maintaining and promoting discipline and their welfare, and one that they did use and would continue to use. As I have said I accept that this is a view they are entitled to hold and from that starting point, and their general assertions that they have given the issue considerable thought, one would expect them to be able to give clear descriptions of the frequency of their use of this form of discipline, its precise nature and the circumstances in which the children were smacked or hit.

104. This general position changed, or outwardly changed, when the prospective adopters signed the agreement with the local authority on 2 June 2004 that:

i. they would not use any form of physical punishment to discipline SH, and

ii. should they need advice and help in managing SH's behaviour they would firstly approach his social worker or their adoption social worker who in turn would involve the appropriate professionals.

This agreement therefore has two parts and conveys the impression that notwithstanding their earlier stance the prospective adopters are prepared not to put into effect their earlier views on physical punishment of SH and to engage with at least an open mind with others on the management of his behaviour. This is confirmed by their agreement later in 2004 to work with Jan Cavanagh.

105. In my judgment in testing and assessing the genuineness and credibility of the prospective adopters it is important to look at the following sequence of events:

29 March 2003 SH placed with prospective adopters

June 2003 An anonymous complaint was made to the local authority about the care given by the prospective adopters to their children. It is in terms that warrant an investigation.

June/July 2003 The local authority carried out an investigation and the investigator felt that the prospective adopters were being open and honest. The report of the investigation records that the prospective adopters thought that they knew who the complainant was and he is identified by description.

However in their first statement in March 2004 they dispute this identification when commenting of the guardian's report which refers to their discussions with her in which the guardian reports that they identified the complainant in the same way. I comment that the dispute is a very narrow one because they do not seem to be asserting that the guardian has identified the wrong family.

The investigator also had discussions with the school and the health visitor and recommended that no further action be taken and concluded that the allegations about the family were malicious.

The prospective adopters are recorded as having asserted that they had never smacked SH or one of the other boys but the behaviour of the other adopted child had warranted a smack on the bottom (one smack with the hand) after church which had been witnessed, and that the allegation about hitting the boys with a stick at dinner was actually a tap on the hand with a chop stick which was on the occasion that the man in question was having dinner.

I did not hear evidence from the person who carried out this investigation.

I comment that in my judgment (a) the later denial of the person who wrote the letter, and (b) the later contradiction of the recorded assertion or the inference from it that smacking was very infrequent warrants a reconsideration of the conclusion, albeit that I accept that it may be that SH had not in fact been smacked by the time of this investigation.

23 October 2003 The adoption application was made. No mention is made of the June letter or the investigation in any of the papers lodged including the Schedule 2 report.

The first time that this issue is raised in the context of these proceedings is when the guardian mentions it in her first report as a result of her reading of the files.

15 February 2004 The first report of the guardian. She had seen the prospective adopters on 30 January and 11 February 2004. On the second occasion she raised the issue of physical punishment with them in light of the June letter which by then she had seen.

She points out obvious complexities in this case first by reference to the progress in the mother's parenting ability, secondly by reference to SH's complex needs and thirdly because whilst SH is settled with the prospective adopters who she recognises have many strengths as carers and express a love and commitment to him, there is a significant aspect of their present care of SH which is not endorsed by the local authority and which she cannot endorse as good practice in parenting. This is that they are committed to having recourse to physical smacking in their discretion and say that SH is smacked two to three times on average a week.

This is a reference to the meeting the guardian and Mrs Pope had with the prospective adopters. Indeed at that meeting the nature of the smacks that were administered were demonstrated by Mrs Pope being smacked. Both the guardian and Mrs Pope were of the view that this demonstration did not represent a tap but a skin to skin smack.

The guardian also reports that during a discussion with the prospective adopters it became clear that their belief in physical chastisement represented a very conscious decision and was not a matter which could be addressed or resolved by training or education. She reports that the prospective adopters were aware of the opposition of many childcare professionals and organisations to the use of physical hitting to discipline a child and that they did not expect to be able to change the use of those who opposed the practice. However they were equally not open to modification of their own views.

She also asked the prospective adopters to give her the two most recent examples of what had prompted a smack. The first given related to behaviour at table which was apparently a frequent source of difficulty and the other related to SH throwing a toy lorry at the other children.

The guardian reports that she is not clear whether the adoption social workers knew that SH would be subject to physical chastisement when he was placed with the prospective adopters because there is no reference to those in the updating F1 assessment. She records that she believes that she would have sought firmly to oppose such a placement on behalf of SH if she had then known that he would be subject to physical chastisement.

The guardian raises another concern relating to home education. She reports that in September 2002 when the prospective adopters were approved as adopters for two more children they were saying that they hoped that the two boys they had already adopted would go on to attend local schools and have a happy life in school but that by the time of the complaint in June 2003 it appeared that the prospective adopters had changed their position and were actively considering home education.

The guardian refers to the fact that very recently the prospective adopters had discussed the possibility of home education for one of her adopted sons with Dr Helen Upright, a clinical psychologist, who had apparently advised against it. (A letter dated 24 February 2004 from Dr Upright shows that that was her advice.) Notwithstanding this P told the Guardian when pressed that they are "probably yes" going to embark upon home education for some or all of their children as they judge the individual child's needs to be.

They have now made this decision in respect of the younger of the two adopted boys.

The guardian records that she found the prospective adopters to be candid and seemingly very honest and ready to provide detail and talk at length about their views.

She goes on to say that she had already discussed in outline their views in relation to smacking and education and alluded to their strong Christian faith. She records that she had a very long discussion with them and they may well feel, and may be right, that she had not done full justice to their views in that summary. She emphasised that the prospective adopters are clearly individuals who take important issues in life (such as bringing up children, reaching out to individuals who need help, and their Christian way of life) very seriously indeed. She also stated that they read widely in relation to those areas and think about and discuss them.

At paragraphs 117 and 118 of her report she says:

"The applicant's feel that it is important that the context in which the complaint was written is known.

In reality, it seems to me that inasmuch as the applicants smacked their children and there is a strong probability that they will provide them with home tuition, the complaint was not in those regards essentially untrue, although the applicants say that they do not smack the children in public as this would be humiliating for the child. If those facts were not known to social workers beforehand, then, on one view, the complaint could perhaps even be considered to have been socially responsible, even if it was malicious in intent. Notwithstanding this consideration, however, the complaint seemed certainly to cause the applicants much distress."

The guardian makes a number of references to her view that SH must be considered as a very vulnerable child and for example at paragraph 75 records that she remains of the view that he must be considered a very vulnerable child.

She also makes a number of references directly and by reporting comments of the social workers of the good and positive sides and effects of the prospective adopters care of SH.

At paragraphs 148 to 150 she says:

"The applicants are aware of my reservations as summarised above, and it may be helpful for the Court to hear from them in person why they are so committed to smacking as a boundary-setting device. I would also wish to make clear that they do use other methods of behaviour management, such as positive reinforcement of good behaviour and ignoring undesirable behaviour, and stress that they do not have recourse to smacking as a first intervention.

I am very aware of the positive aspects of the applicants' care, which are very much recognised by the Local Authority, and I certainly am aware of the concerns that it would be very harmful for SH to experience another change of placement.

However, unlike the Local Authority I do not feel that I can recommend that the Court should simply set aside the issue of SH being smacked a number of times a week in the light of other positive aspects of his care. I think that this would be a dangerous precedent in the light of professional opposition in general to such practice, but more importantly, I think that further enquiry in relation to the implications of this in SH's particular case is necessary."

At paragraphs 153 to 157 she says

"It may be that expert psychological or specialist child psychiatric assessment of SH's needs, taking into account his particular presentation and past experiences, will help the Court better to evaluate the impact on SH's development of being regularly smacked, and the likely efficacy of such a practice as a behaviour management tool in this case.

Those are the two issues that should be the key determinants of whether the Court endorses such future care for him, in my opinion.

Until we have such information, it is in my view difficult to set this issue in the balance with the undoubted very good aspects of the applicants' care that they provide for SH.

Similarly, I also feel unable to take the view of the Local Authority that the decision as to whether SH is to be educated out of mainstream state schooling should at this stage be left to the discretion of the applicants. They are not yet entitled to make that decision, and in the light of SH's special needs, I would again personally recommend that an expert opinion about this is obtained, preferably the same expert, so that whether or not the applicants will be able to meet his developing educational needs from their own resources, and from reading, is better understood.

I am aware that these recommendations are likely to be very distressing to the applicants, who are sincere in their belief that they have SH's best interests at heart. However, having reflected carefully, I believe that at present I do not have adequate information available to me to put these issues into the balance and to make a reasoned recommendation concerning the extent to which SH's best interests will be met in the applicants' care, in what is in my view in several ways an unusual and complex case."

15 March 2004 The first statement of the prospective adopters.

They maintain that they were very very distressed by the guardian's report and make a number of comments on it.

They state that their Christian faith is central to their lives and the motivating force which has helped them to devote their lives to the care of needy children.

They assert that the artificial school world is acknowledged by many to be particularly unsuited to 4 to 7 year old boys and that they see home education as a valid option because it opens up the opportunity for children to learn at their own pace and concentrate on issues that interest them at each stage in their development, rather than imposing on them an imposed curriculum which may not capture their interest and attention.

They state:

"We have tried to be honest from the beginning when we moved from fostering to adopting and we talked about our attitude to smacking then. We were in full agreement with the department on not smacking foster children, however we were not comfortable with making a long-term commitment to completely rule out smacking when we moved to adopting.

This does not mean that we routinely smack. We simply felt we wanted equality with parents who have had their own children, who automatically have the right to choose whether to smack or not. (I understand in a recent Government study 88% of families wished to keep this freedom).

We would also like to make it quite clear that we abhor the type of aggressive and intimidating behaviour parents sometimes employ in seeking to achieve compliance by force. This is sometimes also attempted by shouting and angry threats. This often leads to a temporary, reluctant truce when the children are smaller but as soon as the child feels big enough to "take on" the aggressive parent you sadly end up with a permanent break down in the relationship. ------------------------------

What we are all agreed on (ourselves included) is that the best approach for child management (and perhaps for good adult management as well!) is to as far as possible, ignore bad behaviour and make sure you reward good behaviour with lavish praise and positive attention. Please understand that we have a lot of fun and laughter in our home, we all enjoy each other's company. Our objective is always a happy home, and we believe well behaved children are happy children.

We are actively learning new strategies from training courses we are attending on dealing with children's behaviour (latest course 'coping with kids' run by Dr Helen Upright) in order to reduce our recourse to smacking even further."

Commenting on specific paragraphs of the guardian's report they assert that (a) they felt put under pressure by the guardian to provide an example of when SH was smacked and that it was not easy to do so because it does not happen very often, (b) P's comment of smacking two to three times a week was on the high side and that SH was not smacked at all for the first three months he was with them "i.e. until he understood that we loved him without reserve and he knew what the boundaries were and the consequences of pushing them to far", (c) they do not smack the children as part of their Christian belief and (d) on the rare occasions when they do smack it would be a considered response to a situation and not in anger.

They state that:

"We have always been careful not to discipline the children in front of visitors because we regard this as humiliating. We discussed with Sue Lamb how this misunderstanding could have arisen. We could remember having a chopstick at the table on an occasion which we may have waved at the children as a symbol of disapproval, however acting on her advice we have not used this idea since".

27April 2004 The first report of Mrs Beazley Richards.

In setting out what she was told by P she says:

"She told me that SH is "demanding, attention-seeking, clingy, sociable," and very attached to the other children. She then told me the relevant reading that she has undertaken, in order to responds to his needs, and how she had applied that knowledge. I asked her to demonstrate the smacks that she gives to him, by asking her to hit the back of my hand with the same velocity. She did so, and it was really only a tap. I asked when was the last time that she had smacked him. It was Monday, one week previously, because when they had gone up to the bedroom, for their "special time", when she reads him a story in bed, he had refused to settle, and had escalated his opposition, until she had smacked his bottom, with his pyjamas on. She told me "We use it to set limits." I asked how often the smacking occurred. P told me "It can be 2 or 3 times a week, but often none in a week". We explored why they believe it is really important to have the option of smacking, rather than rely upon other ways of setting limits, or de-escalating a situation. P explained that she "doesn't want to be constrained." She went on "We only use it occasionally; to de-escalate, when all else fails." She believed that their approach was thorough but not rigid. She told me an example of their flexibility was the fact that they had agreed not to use the chopstick on the children that had been commented upon in a previous report."

In her oral evidence P said that Mrs Beazley Richards had misreported the circumstances in which she had smacked SH and that the circumstances were that she was trying to read a story to one of the other children and SH would not go to his room. This was not put to Mrs Beazley Richards and in my judgment it is unlikely that she misunderstood or misrecorded the account given to her.

In setting out what she was told by J she says;

"He began by emphasising that everyone who knows them is "very positive" about what they are doing. It was not until the anonymous letter was received that things went wrong for them. ----------

We started with the issue of forms of discipline, and J largely echoed what his wife had said. He showed that they had considered the issue deeply, and that they did not advocate smacking except as a last resort, and only to set limits, and to de-escalate situations. He agreed that they had stopped using a stick, "We don't need it. We have other ways of keeping order". I asked him to demonstrate the strength of force with which he hits SH, by hitting the back of my hand. He did so, and it did sting. I expressed concern that it hurt, and that I had concerns about someone as big as him inflicting pain on someone as small as SH.

J immediately said that they were "diminishing it anyway". Last night, for example, he had pretended to go to sleep when SH had had a temper tantrum, and it had worked, because SH had calmed down.

In her addendum report dated 29 June 2004 in answer to the question how she was able to reach the conclusion that the prospective adopters intend to reduce their smacking of SH in the future she said:

"P and J have previously stated that they could not promise not to smack SH. To me this is an indication of integrity. They did not state that they would definitely continue to smack SH, and indeed they informed me that they would be willing to work towards other methods of behavioural reinforcement. I have stressed the importance of J and P utilising positive reinforcement, and when necessary for discipline to take the form of removal of privileges rather than physical punishment."

17 May 2004 Report of the guardian.

The guardian comments on the evidence of the prospective adopters and the report of Mrs Beazley Richards and confirms the accuracy of her account and makes general and specific points on smacking and specific points on inconsistencies between the account given on the investigation of the June 2003 letter (to Sue Lamb) and in the statement.

[Having seen both the guardian and the prospective adopters give evidence I prefer without hesitation the evidence of the guardian on the disputes as to what was said and done at her interviews with the prospective adopters. Not only was the guardian a far more impressive witness many of her accounts are supported by others and notes and parts of the account given by the prospective adopters in their statement is at odds with the accounts given by them to both the investigating social worker in 2003 and the guardian in 2004.]

The guardian ends her report by suggesting that the local authority could consider whether SH's best interests would be promoted by him fostered by the prospective adopters.

2 June 2004 The prospective adopters sign the agreement referred to above.

19 August 2004 The guardian and Mrs Cosbie visited the prospective adopters. Mrs Cosbie had been before since the June agreement and had been told by P that it was hard managing without smacking but they were trying strategies learned on a course they had had with Dr Upright.

In his oral evidence J told me that at this meeting he was dreading being asked whether SH had been smacked but that this question was not asked. Both the guardian and Mrs Cosbie record in their statement and report that the guardian asked how they had got on without smacking. Mrs Cosbie says in her statement that J said it had not been easy but they had managed not to smack and this had carried over to the other children. The guardian's report records that they still felt the loss of the sanction of smacking and felt that whilst they had adhered to their agreement not to smack and have applied it to all the children they have only been able to keep the agreement by "lowering our standards". The guardian told me in her oral evidence and I accept that this was an answer given by J

19 September 2004 LAC review.

The updating report to this meeting states:

The record of the discussion states that the Chair strongly supports the plan for adoption, and that SH is well placed with the prospective adopters who provide very high quality care. It also states that with regard to the concerns of the guardian the local authority agreed to fund a time limited piece of work with the prospective adopters which should address various issues including the issue of smacking.

10 December 2004 The first of three sessions with Jan Cavanagh took place.

Two others took place on 15 December 2004, and 11 January 2005.

It is clear that at those sessions the prospective adopters did not tell Jan Cavanagh that either of them had smacked SH or either of the other boys.

In her report Jan Cavanagh says:

" They have taken seriously the request made not to use smacking with SH, and have not done so, although they struggled at first with finding alternatives. They have come to the profound realisation that, to modify children's behaviour, adults can only change themselves and the environment, and are working continuously on themselves and their reactions to this end. ----------

I feel confident that J and P will continue to reflect on their roles as parents, and will give their family a high standard of loving care."

The prospective adopters now accept that they lied when telling Jan Cavanagh that SH had not been smacked

3 March 2005 The second statement of the prospective adopters.

They say:

"We have brought up C and J as the majority of children are brought up in this country using a variety of sanctions to discourage undesirable behaviour including the occasional smack if all else fails. ------

We have found the "alternative" behaviour management strategies to be more effective with C and J when they both know that we still have the option of a smack as a last resort if they fail to comply after the application of an alternative method i.e. the possibility of a smack increases the effectiveness of other behaviour management strategies. (their emphases)

We are certainly not "smacking enthusiasts" as we appear to have been portrayed. We simply believe in parents being allowed the freedom to use their knowledge and love of the child, and personal experience to find the most effective strategy to manage that child at each stage of that child's development."

As I have already mentioned they assert that they are not prepared to consider fostering and that they agree with the local authority that the correct plan for SH is that he should be adopted.

3 April 2005 Towards and at the end of her report (in paragraphs 119 to 122 and 148 and 149) the guardian says:

"J and P are also extremely enthusiastic about family life, they have a colourful and cosy home with much play material in evidence, in a rural location, and they have exciting play material in their large garden. They appear to devote their lives to creating the family environment and culture that they very much desire for themselves and the children in their care. They are very welcoming to professionals and in some ways almost irresistible in the professed child-focus that they expound. In this context I note their psychometric profile as reported by Joanna Beazley Richards in which the "excessively virtuous" impression they convey, and it seems strive to convey, is noted.

This seems to be so to the extent that P contributes to fostering training for a Barnardo's project even though she subscribes to smacking, which is a practice that that organisation is completely opposed to.

Yet recourse to facts reveals aspects of J and P's behaviour which in my opinion are very difficult to reconcile with the warm and reassuring child and family focused appearance they project. ----------------------------------

I recommend that further assessment by Dr Bisbey is undertaken to facilitate assessment in the application by Ms C.

I recommend that to be adopted by the applicants at present would not be in SH's best interests."

25 April 2005 P made a third statement in which she admitted and asserted that she had smacked SH on four occasions since June 2004. She says that:

"Because of the issues in this case I do definitely know that I have smacked him on four occasions since August of last year. There was one occasion in August, there was one in approximately October last year, one in February and one in March.

Each occasion has followed a similar pattern. For example on one occasion SH was throwing stones ------------------------------------------------------------

The three other occasions have followed the same pattern in that the smack has been the last resort.

The last smack was about eight weeks ago and since then SH has been brilliant and a little star. On the occasions that he has misbehaved and I have had to either put him on the naughty step, the naughty chair or sent him to his room, he has stayed where he has been put and after the requisite period of time on the naughty spot, he has apologised and then there has been lots of, kisses and cuddles. I do feel that by smacking SH on these four occasions a corner has been turned with him and he now understand where the boundaries are between good and bad behaviour. Before these four occasions SH had been overheard saying to his siblings "Mum doesn't smack me any more" and he appeared to see that as the go-ahead for him to do what he wanted, when he wanted.

It has been incredibly difficult to treat SH differently to my two older boys. Quite clearly all the children need to be able to see that they are all being treated the same way in a fair and loving manner. It is incredibly difficult for children of the ages of my children to understand why SH, whom they believe to be a permanent member of our family, should be treated differently to them. --------------

I really do believe that if SH were removed from my care it would do irreparable damage to him, my other children (who would suffer a great loss) and indeed myself and my husband."

To my mind this is a troubling statement in that (a) it is short on particulars of the four incidents which it asserts P "definitely knows about", (b) it indicates that the other boys were still being smacked, because it is unrealistic to think that the difference in treatment relates to treatment in the past which the older boys and SH remember and react to, and (c) the paragraph as to SH turning a corner is to my mind unrealistic particularly in the context of the history of this case, the ages of the children, the views of J and P on smacking, the description of the smacks administered as a last resort and the point that the statement indicates that the older boys are now being smacked. If it is meant to carry the inference that SH will not be smacked in the future then I reject that inference. In fairness I add that as I understood the oral evidence of P and J they were not asserting that SH would not be smacked in the future but in contrast were asserting that they would use physical punishment as part of their method of disciplining him.

106. Both P and J told me that P had told J of the four occasions on which she had smacked SH since June 2004, shortly after each incident. However neither of them gave me a clear and comprehensible account of all four incidents.

107. P gave evidence first and understandably she was asked to give an account of each of the four incidents. As (a) she had asserted that she definitely knew that she had only smacked him on those four occasions, (b) the stance of both J and P has throughout been that they are thoughtful people who have given close consideration to the issue of smacking and do not smack in anger and (c) the prominence that this issue has taken on since the issue of the adoption application I would have expected both P and J to give a clear and particularised account of the occasions and manner in which SH was smacked (and indeed of occasions when the other boys were smacked).

108. P failed by a long way in doing so. J was not pressed over the four incidents that they both said were reported to him but he did not volunteer any details of them and was unable to clearly give specific examples of when and thus the reasons for and circumstances in which the children were smacked. He did however state and show how the children were smacked on the bottom by being put over a knee and said that he had smacked SH's hand at the table but I was left with an unclear picture as to how this was done.

109. The papers contain references to P getting upset and being sensitive about issues relating to the care of the children and both J and P accepted that they should have spoken up earlier about the occasions on which they now asserted that P had smacked SH. I accept that that is an understandable reaction by a couple who wish to adopt SH and know that those who oppose that course would rely on any further smacking of SH to support that opposition.

110. I have to consider whether J and P are either:

i. a couple who are giving an essentially truthful account of their behaviour and attitudes in respect of and to physical punishment and that the deficiencies in their evidence can be put down to a fear of losing SH and a reluctance to allow others to invade their privacy and matters which they regard as within the domain of adoptive and natural parents, or

ii. a couple who are not giving such an account.

111. A finding that option (i) is the case would lead to an argument that as the local authority have concluded this is a couple who will responsibly use physical punishment in the care and upbringing of SH because they have concluded that it is an appropriate part of their care (albeit that they have reviewed and will continue to review this conclusion in the light of the views of others and their experience). That argument would in turn be a foundation for a conclusion that SH was well placed and thus that adoption or long term fostering by J and P would best promote SH's welfare. Thus as appears earlier an assessment of the prospective adopters' evidence, behaviour and attitudes towards physical punishment is of central importance in this case.

112. It was clear that P found giving evidence a difficult and emotional experience. As did J although he was better able to cope. Also both of them showed that they are keen that SH should remain in their care that they loved him and that they were no longer saying "adoption or nothing". On this the evidence of J that in his view he was the only father that SH had known and he did not have the right to decide not to care for him throughout his childhood was moving and heartfelt.

113. I accept that both J and P have a fear of losing SH and that this was a factor in them not revealing earlier that P had smacked SH after June 2004. I have also taken account of the difficulties and emotional strains for both of them in giving evidence and accounts of events about their care of the children that they know others do not approve of. Further like others my initial impression was that they are honest people with thought out beliefs on religion and other matters, who have said that they could not promise not to smack (which I agree can be said to be an indication of integrity – but has to be looked at in the light of the fact that the issue came to light as a result of the anonymous letter). But sadly, and I confess with some reluctance having regard to the above matters and my acceptance that many aspects of their care of SH are good and have helped him, I have concluded that they were not giving me a full and truthful account of their approach to physical punishment and the circumstances in which it was used in their household. My main reasons for this are:

(1) After making the allowances I have P was still an unimpressive witness and I was left with the clear view that she was not doing her best to give me a full and truthful account of the occasions on which she had smacked, or used other physical punishment on, SH and the general approach, beliefs and practices of herself and her husband concerning physical punishment.

(2) In many ways to his credit J was supportive of his wife and made it clear that they were to be treated as a couple and he supported her actions. He was also more open in giving his oral evidence and (as with P) there were clearly parts of his evidence that came from the heart. But again I was left with the view (although less clearly) that he was not giving me a full and truthful account of the occasions on which SH was and had been smacked, or been the subject of other physical punishment, and the general approach, beliefs and practices of himself and his wife concerning physical punishment. I should add that I accept that since June 2004 he has not smacked, or used other physical punishment, on SH.

(3) I do not accept that P and J could not give a clear, consistent and particularised account to me (or earlier to others) of the frequency of their use of physical punishment and the circumstances in which they used it. If their general stance is true and therefore they use it only as a last resort, not in anger, after general and close consideration of its appropriateness, and P can definitely say (as she asserts in her statement) that she smacked SH on only four occasions to my mind it is incredible that they cannot give a clear, consistent and particularised account.

(4) There are number of inconsistencies in the accounts given. These appear in the history set out above and in particular I point to:

a) The acceptance in the initial investigation that one of the boys had been smacked in public and that one of the children had been hit/tapped on the hand with a chopstick in the presence of the person identified by the prospective adopters as the writer of the anonymous letter. The later changes from this in that they asserted that the children were not physically punished in public and that a chop stick had been waved around either as some sort of warning or in fun. What was admitted at the earliest stage confirmed some of the anonymous complaint and that smacking and hitting/tapping of the hand with a chopstick had been witnessed by the writer of the letter. What was asserted later moves away from, and seeks to play down, the earlier admissions.

b) The assertions as to the children not being physically punished in public do not fit easily with a genuinely held view that it is an appropriate form of discipline. Also the reason given that it would be humiliating for the children again does not fit well with (i) such a view or a conclusion that the prospective adopters had given the topic close consideration, or (ii) its use as a last resort.

c) In his oral evidence J said that he had only very recently realised that if SH was given an instruction and he was then given time to take it on board and his objections ignored, he would then obey. This was surprising in itself but it also does not accord with what he told Mrs Beazley Richards about pretending to go to sleep when SH had a temper tantrum (see last paragraph of the passages cited above from her report dated 27 April 2004).

d) The accounts of the frequency of the use of smacking has varied. The inference from the initial investigation is that it was very infrequent. This was followed by its frequency being described as two to three times a week and then that on number of weeks there was no smacking. I accept that precise accuracy might be difficult but I do not accept that any pressure P (and J) felt under in answering the questions on frequency, or the last occasions of smacking, put by the guardian found the view that it was reasonable to give an inaccurate answer.

e) There is inconsistency in the accounts as to whether they were continuing to smack or otherwise physically punish the other two boys after June 2004. The third statement of P indicates that they were but for example (a) on 19 August 2004 they told, or indicated to, the guardian and Mrs Cosbie that they had applied the no smacking approach to all the children (see sub-paragraph (h) below as to the possibility that it might be that at that time this was so), and (b) they did not indicate at the LAC review in September 2004 or to Jan Cavanagh that they were smacking any of the children (when on their present evidence, and I find, they were).

f) There is an inconsistency in the assertions made as to the identity of the writer of the anonymous letter in that J and P dispute the accuracy of what they told the guardian and the social worker who carried out the original investigation. The dispute is in pedantic terms.

g) The accuracy of the account set out by Mrs Beazley Richards of a time when SH was smacked was disputed in oral evidence. In my judgment it is most unlikely that Mrs Beazley Richards misrecorded what she was told; it was not put to her that she did.

h) It may be that at the time of the meeting on 19 August 2004 that P had not smacked SH since the June 2004 agreement (although this is difficult to fit with J's oral evidence that he was dreading being asked about this) but by the LAC review in September, and the sessions with Jan Cavanagh, it was known by both J and P that on their case P had smacked SH (and it seems that the other boys were being smacked) and therefore both J and P must have been aware that they were misleading the review and Jan Cavanagh.

i) The examples they have given, and their inability to particularise incidents, do not accord with their assertion that smacking is only used as a last resort.

114. A further troubling aspect of the oral evidence in respect of smacking was the refusal of J and P to acknowledge that SH was a vulnerable child and J's oral evidence that he did not believe that SH was as damaged as the guardian makes out, and that if he had suffered physical abuse then they would not smack him. I agree with the judge who made the care order, the guardian and, as I understand their position, the local authority that SH is a vulnerable child as a result of his care during the first seven months of his life and possibly other matters. I find it very difficult to see why, if J and P as they assert is the case take care to read and consider the views of others, that they do not readily accept this, and why J makes a distinction based on whether SH suffered physical abuse as opposed to witnessing violence and suffering lack of attention and nurture.

115. Accordingly I find that the prospective adopters did not give me an essentially truthful account of their behaviour and attitudes in respect of and to physical punishment. It follows as I have said that in my judgment they were attempting to mislead me and that they have misled others including the social workers involved in this case, Mrs Beazley Richards and Jan Cavanagh.

116. In my judgment an inevitable inference from and consequence of that finding is that they have been seeking to hide aspects of their behaviour. In my judgment what they have been seeking to hide is that:

i. they, and in particular P, have used physical chastisement of SH on a regular basis and not as a last resort, although I accept that J has not done so since June 2004,

ii. P's use of physical punishment on SH has not been limited to four occasions since June 2004 and thus her evidence that it has was untruthful, and J knows or strongly suspects that this is the case,

iii. they have no real present intention to abandon or modify this form of disciplining SH, and their ability (and in particular that of P) to do so and to substitute it with other methods and approaches to discipline is very limited,

iv. their engagement with Dr Upright and Jan Cavanagh on alternative approaches has not been on an open minded basis, and they have misled them (and others) in respect of their willingness to consider and adopt an abandonment of physical punishment and the level of physical punishment used by them in the home,

v. as they said, they do not accept that SH is a vulnerable child, and

vi. if they adopt SH they will consider it to be their right to so lawfully punish SH and there is a real risk or possibility in the sense of one that cannot be sensibly be ignored that their use of this form of discipline will escalate.

117. I am sorry to reach such conclusions. I have done so after careful thought and analysis of the evidence before me.

The approach of the prospective adopters to home education

118. In my judgment both P and J gave idealistic and unrealistic evidence as to the home education of SH. It was to the effect that it would always be fun and led by the enthusiasms of the child, and that it would never involve smacking as a form of discipline although that method of discipline would be used in other aspects of life at home.

119. In my judgment that is (a) internally contradictory because part of the argument was that home education would not involve separate times for classes and education, and (b) idealistic and unrealistic because it fails to take into account that parts of learning at home will not be regarded as fun and done with enthusiasm by the child.

120. In my judgment J and P both support home education as a matter of general approach and the fact that (in line with the statement of P in February 2004 that this is probably what they would do notwithstanding the advice then received from Dr Upright against it) they have embarked on this course with one of their adopted sons supports this conclusion. I heard no evidence as to the detailed reasons for this decision or as to how the home education was progressing. I therefore cannot express a view as to whether it was appropriate for that child.

121. So far as SH is concerned the problem is a future one but:

i. my findings in respect of the evidence of the prospective adopters as to physical punishment (and in particular their attitude to work done with them on physical punishment) lead me to the conclusion that if they adopted SH (a) they would be likely to be driven by their general, unrealistic and idealistic views rather than an even handed assessment of the real needs of SH and the risks referred to above when deciding whether or not to educate him at home, and (b) they would be likely to remove him from school,

ii. in my judgment it is likely that if SH is educated at home that this will be a trigger to further physical punishment of him by P and a deterioration in their overall relationship, and

iii. even SH is having considerable problems at school there is therefore likely to be a very real risk that his removal from school would not best promote his interests.

122. I therefore conclude that if SH is adopted by J and P there is a real risk or possibility (in the sense of one that cannot sensibly be ignored) that SH will be removed from school and that looked at in the round this would not be in his best interests.

Other aspects of the evidence given by the prospective adopters

123. Like the guardian it struck me that certain parts of their evidence showed that they had little or no instinctive reactions to the care and discipline of young children. In particular this flowed from:

i. their unrealistic and idealistic evidence concerning home education,

ii. their lack of appreciation of the wide methods of discipline and persuasion open to parents,

iii. J's evidence that he and P had only recently realised that it was possible to communicate with a small baby by talking, making noises and making faces etc. when, for example changing a nappy, and

iv. J's evidence (albeit contrary to what he had earlier told Mrs Beazley Richards) that he had only recently realised that if he delayed after giving SH an instruction before reacting further, or taking further steps, this could be beneficial.

124. I do not make these findings by way of criticism and acknowledge that they have not had the benefits of having or looking after babies. It is however a feature of their more general approach.

125. Another thing that struck me was that although they assert (and have asserted) a willingness to discuss alternative approaches and ideas and that they read widely (a) they were narrow, rigid, pedantic and surprisingly unclear in their reasoning, and (b) they demonstrated that they looked for and relied on factors that supported their original view rather than adopting a more flexible and open minded approach.

126. Save to the extent that they have misled, or attempted to mislead, the local authority and others that they were flexible and prepared to approach alternatives with flexibility and in an open minded way I do make this finding as a criticism but to record that in my judgment it is a feature of their characters and more general approach to parenting and the many issues that arise in the care of children.

Adoption and consent to adoption

127. Towards the end of her evidence P rightly asserted that an important question was whether she and P could be trusted to promote SH's best interests as his adoptive parents.

128. In my judgment by reason of the matters set out under the previous three headings they should not be so trusted. In other words because of the matters set out under the previous three headings I have concluded that adoption, which would leave decisions as to discipline, education and the many other decisions that will arise in the exercise of parental responsibility for SH, solely to J and P would not promote SH's best interests. Albeit that as I acknowledge elsewhere in this judgment there are positives in the care given by and in the characters of J and P and their abilities as parents, I have not reached this conclusion (i.e. that SH's adoption by J and P would not promote his best interests) by a fine balance.

129. It follows that the question of dispensing with the mother's consent to adoption does not arise. I however add that if, like the local authority, I had on balance reached a different conclusion it seems to me that applying the established test (see for example, Re F (Adoption: Freeing Order) [2000] 2 FLR 505 at paragraphs 19 to 21 and of course Re W (An Infant) 1971 AC 682) it could not be said that the refusal of consent by the mother to SH's adoption by J and P was being unreasonably withheld.

130. In this context it should be remembered that the guardian and Mrs Beazley Richards did not recommend that to promote SH's best interests he should be adopted by J and P.

The way ahead

131. To my mind this raises more difficult questions than those concerned only with adoption.

132. I have identified the possible choices earlier and pointed out that the relevant statutory decision maker is the local authority it being accepted that an immediate return to the mother is not a possibility.

133. I deal with the legal background to my approach later.

134. In my view the difficulties are compounded by the failure to plan for the contingency that an adoption order would not be made. Further the dispute between the guardian and Mrs Beazley Richards on SH's attachment to J and P and his stability and thus the lack of a further report from a psychologist as sought by the guardian is relevant.

135. The nature of that dispute between the guardian and Mrs Beazley Richards is shown by the citations in paragraphs 55 and 58 to 64 above. I should add that there a difference between the two psychologists as to the benefits of the additional tests Dr Bisbey says she would have carried out. This difference of opinion was not explored in any depth with either of them. Given (a) the strength with which the guardian expressed her disagreement with Mrs Beazley Richards in her oral evidence, and (b) the evidence the local authority introduced by the oral evidence of Mrs Cosbie, Mrs Beazley Richards should have been asked more about this aspect of her evidence by all the advocates. The result was that the differences of opinion on these matters was not fully tested in the oral evidence. Having said that, I accept and acknowledge that until the guardian changed her view in her oral evidence the dispute between her and Mrs Beazley Richards was less relevant because they were both recommending that SH stayed where he was, and that this may have caused the lack of further questioning on this aspect of the case.

136. To her credit in final submissions counsel for the local authority accepted that the manner in which she (and the local authority) had sought to introduce evidence from Mrs Cosbie was very inappropriate. That evidence was that in Mrs Cosbie's view SH would not be able to form a good secure attachment to anyone again if he was removed from J and P. The first time this view was mentioned was when counsel for the local authority told the mother that there was such evidence. When asked where it was counsel responded that it would be given by Mrs Cosbie. I told her that if this was to be the case Mrs Cosbie was to put in a statement setting this out together with the work, observations and reasons it was based on. No such statement was produced.

137. Counsel then referred to the report of Mrs Beazley Richards and in particular paragraph 11.4 (which as appears above was disputed by the guardian in her report that followed it). In that paragraph Mrs Beazley Richards does not go as far as it was indicated Mrs Cosbie would go but counsel for the local authority did not investigate with Mrs Beazley Richards whether she agreed with Mrs Cosbie's view as she had put it to the mother. Neither did anyone else.

138. Without producing a statement, and after she had deferred to Mrs Beazley Richards as the expert on an attachment issue, Mrs Cosbie was asked the question which led to a response confirming her view as counsel had on an earlier day said it would be. I reject that evidence. It smacks of self justification, it was introduced in an inappropriate, and in my view unfair, manner and it does not accord with the evidence of the psychologist to whom Mrs Cosbie deferred.

139. This does not mean that I do not accept (a) the relevance and force of points as to the harm and risks that will flow from a move, or (b) that paragraph 11.4 does not come close to the evidence given by Mrs Cosbie in that Mrs Beazley Richards says that a move would be seriously detrimental and may (my emphasis) have long lasting, or even permanent, effects upon SH's ability to form attachments in the future. The real difference between that view and the view given by Mrs Cosbie is that Mrs Cosbie's evidence effectively substituted "may" with "will or probably will". I acknowledge that perhaps Mrs Cosbie did not mean to go that far.

140. Mrs Beazley Richards (as is not uncommon for a reporting psychologist) has seen very little of the family but has considerable experience in assessing attachment. The guardian has seen more of the family but not nearly as much of them as the social workers. The guardian has a degree in psychology is clearly experienced and also used to making judgments on attachment which she can sometimes check by later observation, or against later evidence. The social workers have seen the most of the family but for the reasons I have explained in my judgment I have to approach their views with caution.

141. It is clear from her reports and her recommendations that the guardian recognises that SH has put down roots with J and P and their family and recognises the risks and potential harm of a move from them. She has also recognised that there have been, and are, many good sides to the parenting of J and P. Their counsel highlighted some of these in his closing submissions. These points led the guardian to a conclusion that favoured SH staying where he was and that there should be further assessment of the mother's application.

142. The dispute is to as to the degree and nature of SH's attachment to J and P and their family and thus the degree of harm and risk of a move balanced against the degree of risk and harm of him staying where he is.

143. The advantages of a further assessment by a psychologist are those referred to in paragraph 55. But that psychologist would not be able to make findings on credibility.

144. Is there a realistic possibility that such an assessment could lead to a conclusion that a return to the care of the mother should be ruled out without any further assessment of her ability to care for SH on the basis that SH should remain in the long term care of J and P as a foster child? In my view the answer is "no" because:

(1) Having seen J and P give evidence I agree with the guardian that there is little prospect that they will change their views or approach and although the sharing of parental responsibility by the local authority would limit the decisions they can make alone (e.g. on schooling) the supervision or monitoring of SH's care as a foster child would be difficult, not least because of the issues of trust that would now exist and the fact that the two older boys have been adopted itself. I add that in my view such supervision or monitoring of itself could well lead to insecurity and detriment in the placement.

(2) The problems relating to a long term foster placement and the reasons why in my judgment adoption would not be in SH's best interests point to a conclusion that there a number of factors which favour a move.

(3) Points (1) and (2) render it extremely unlikely that alternatives could be ruled out by reference to a further view of a psychologist on the strength and nature of SH's attachment to J and P and the risks attendant on a move.

(4) The changes in the mother's position and the background approach at law (referred to later in this judgment) mean that having regard to points (1), (2) and (3) one of the alternatives that would have to be considered would be a return to the mother.

145. An assessment with a view to considering a return to the mother would, after an initial stage, include contact.

146. A further factor is therefore the ability of J and P to continue to care for SH against the background of a further assessment aimed at deciding whether he should be moved to live with the mother or elsewhere (with or without the possibility of a return to J and P). In my judgment:

i. it is plain, as J accepted and asserted, that any such assessment would be carried out against very difficult background circumstances and would place enormous strains on J and P,

ii. it would also put huge strains on the mother and it is hard to see how the adults could cope with contact in those circumstances if, for example, SH told the mother that he had been smacked and more generally, and

iii. there is a very real prospect that if such an assessment was carried out now, of itself it would cause harm to SH by reason of the strains it would put on all involved in it.

147. In the circumstances set out above I have concluded, like the guardian, that decisions can be made now without any further assessment. I accept that such an assessment may have helped in the determination of the issues that arise, and in particular as to the degree of attachment of SH to J and P and the likelihood of any move from their care being successful. However in my judgment (a) the court is in a position to assess the issues having heard J and P give evidence and the other evidence, (b) a further assessment would have to be carried out in very difficult circumstances and this could limit its usefulness and exacerbate rather than assist in solving the issues and problems that exist, (c) in any event it is unlikely that it would be determinative mainly because any views of that psychologist would have to be weighed against the other evidence and the court's findings, and (d) it would cause delay.

148. I repeat that I accept (and indeed it was not disputed) that SH has put down roots with J and P. In assessing the nature and depth of those roots I remind myself that (a) I have concluded that Mrs Beazley Richards was misled, and that she did not recommend adoption when she heard that P had smacked SH and thus that her views as to the future conduct and attitude of P and J were shown in some respects to be wrong, (b) I have rejected Mrs Cosbie's evidence as to the prospects of SH forming another attachment, (c) I have concluded that the evidence of the social workers has to be treated with caution whilst acknowledging their general competence and that they have not observed anything untoward and have the impression that J and P and the children in their care form a secure and loving family unit, (d) the guardian only recommended removal from the care of J and P after she had heard them give evidence (which is a confirmation of her acknowledgment of the attachment SH has with J and P and the other children), and (e) the differences of view between the witnesses on attachment were not examined orally in any depth.

149. On that basis I have concluded that if SH is moved from J and P:

i. in the short term he will suffer distress and therefore some emotional harm, and

ii. there is a real risk or possibility (in the sense of one that cannot sensibly be ignored) that his ability to form a secure attachment in the future will be impeded and thus that such an attachment will not be formed, which would be very damaging to his long term welfare, but

iii. there is also a real prospect that he will be able to form a secure attachment in the future with a parental figure in an appropriate placement (by which I mean one in which, as the guardian described it, there is a good prospect of his needs being appreciated, addressed and met) and that his emotional development as an adult can take place against that background.

150. I also acknowledge that (a) there will be difficulties in identifying such a placement if it is not to be with the mother and thus a real risk or possibility that such a placement will not be found, and (b) if this turns out to be the case the damage identified in paragraph 149(ii) would be likely to occur. But I am also of the view that there is a real prospect that such a placement could be found.

151. Having regard the above matters I have concluded in agreement with the guardian that (a) subject to a significant change in circumstances, and (b) notwithstanding the risks identified in paragraphs 149 and 150 hereof, SH should be moved from the care of J and P as soon as is practicable. My main reasons for concluding that the balance comes down in favour of taking this course to seek to best promote SH's welfare are:

(1) I accept the view of the guardian that the most important thing for a child, and in particular for a vulnerable child (and I accept and find that SH is such a child) is that he or she should be in an appropriate placement (in the sense set out in paragraph 149(iii)).

(2) Having seen J and P give evidence, like the guardian I am of the view that SH's placement with them is not an appropriate one in that sense principally because they do not recognise or understand a number of his needs, and because of (a) their approach to discipline and physical punishment, (b) their approach to home education and (c) their general approach to parenting and the decisions that fall to be made as a parent.

(3) Having seen J and P give evidence, like the guardian, I am of the view that there is no real prospect that J and P will change with the result that SH's placement with them will become appropriate (or more appropriate) in the above sense.

(4) Further it would be very difficult to monitor the placement and monitoring could well have an overall effect that was damaging because it would do little to improve the problems and would undermine good aspects of the placement.

(5) Thus, and although there are good aspects to SH's present placement, the primary reason for leaving SH in it (and thus for leaving him in an inappropriate placement) are the risks referred to in paragraphs 149 and 150 hereof.

(6) Although those risks are real ones, and could result in the damage referred to in paragraph 149(ii) occurring I have concluded that the chances that the course I suggest will produce a significantly better outcome (and indeed now the best outcome for SH) by resulting in SH being brought up in an appropriate placement rather than an inappropriate one are worth taking.

(7) The prospect of harm referred to in paragraph 146(iii) hereof.

(8) In short I consider that (a) the choice is between leaving SH in an inappropriate placement (and thus in a situation in which I have found his welfare is not being, and will not be, best promoted) and taking the risks involved in trying to achieve what I consider would be the best available result for SH by moving him, and (b) the chances of success of the best available result being achieved by a move from J and P in the near future mean that the risks of such a move are worth taking having regard to its chances of long term success and the benefits that would flow from such success.

152. I acknowledge that I am not presently the decision maker on placement. I am confident that the local authority will consider the views I have set out above in formulating their care plan now the application for an adoption order has been refused.

Contact / Application to discharge the care order

153. In my judgment it is not practical or sensible to reach decisions as to (a) further assessment, or (b) contact between the mother and SH (or others and SH including J and P following a move) until SH's short term placement is decided in the light of this judgment.

154. I will adjourn the mother's applications to set aside the care order and for contact and will set a date for a directions hearing in those applications.

General comment

155. This judgment and the views expressed in it relate to SH. Different considerations will no doubt arise in respect of the half sibling of one of the boys adopted by J and P.

Law

156. I have already referred to my approach on adoption.

157. I provided the parties with an extract from a judgment I delivered in Bedfordshire County Council V L & others. I have applied the approach set out therein to fact finding and welfare.

158. In accordance with that approach to welfare when making the care order n respect of SH with a plan for adoption the court concluded (in my judgment for good reasons) that the time had been reached when attempts to rehabilitate SH to his mother should be abandoned. Following such an order (and thus here) in my judgment the underlying approach to encourage and promote rehabilitation does not mean that changes and improvements in the lifestyle of a parent, which might enable a child to be returned to their care, of themselves warrant a placement with prospective adopters or long term foster parents being revisited. Much will depend on the circumstances of each case. But when a child has been placed pursuant to a care order and care plan with prospective adopters, or long term foster parents, and the common view of the professionals is that the placement is one in which there is a good prospect that the needs of the child will be addressed and met I accept and agree that generally an assessment of the prospects of a return to the care of a parent would, might well, not be carried out and (as mentioned earlier) a parent might be held to be unreasonably withholding consent to an adoption.

159. Indeed, as mentioned earlier, if in this case it had been common ground between the local authority and the guardian that SH was well placed the mother through her counsel recognised that she would not be seeking to set aside the care order and would probably not be actively opposing adoption (see paragraph 16 above).

160. But as in my judgment SH is not appropriately placed it seems to me that the underlying approach in law of trying to bring about rehabilitation is a factor in favour of further assessment being carried out of whether SH's welfare would be best promoted by him being placed with his mother given the considerable changes in her lifestyle and the potential for her being able to care for SH. This is so although I recognise that a move from J and P may not result in a placement with his mother once that assessment has taken place.

161. In this judgment I have assumed that long term fostering by J and P is an available option at law. In doing so I have had regard to the points made in the next paragraph.

162. I have held in an unreported decision Kirklees Metropolitan Council v P and Others 98 CC 5262 and I am aware that Roger Kaye QC has recently reached the same conclusion in A London Borough v H and others FD 03 C 00748 (as yet unreported) that the relevant regulations in those cases were directory and thus the relevant decision maker could make a lawful decision to best promote the welfare of the particular child when the relevant regulations had not been complied with. Those decisions were reached in reliance on the principles and approach set out in Howard v Boddington [1877] 2 PD 203, S of S for Trade and Industry v Langridge [1991] Ch 403 in particular 410F – 412A, Re T [1986] 2 FLR 31 in particular at 33E/G and 58C – 60D and Re Finelist [2004] BCC 877 in particular at 888 et seq.

163. I have thus assumed that the alternative proposal put forward at the hearing by the local authority is one that is lawfully open to them. My preliminary view is that that is correct, but if I had regarded it as the best option I would have examined this point in more detail having regard to amongst other things the point that here a part of the Fostering Services Regulations cannot be complied with by J and P because of their views and intentions on physical punishment. Further I would have gone on to consider the prospects of the local authority not taking such a course in the exercise of their discretion in the light of the possible views of relevant panels.

164. I have reached my conclusions on the basis that long term fostering by J and P would have been a firm alternative.