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Borough of Poole v W & Another [2014] EWHC 1777 (Fam)

Application for adoption order-opposed by birth parents who had been given leave to do so on appeal.

The case concerned the youngest of four children of the mother (two of whom, including the youngest, were also the father's). The three older children had been made subject to care and placement orders and were subsequently adopted. The youngest child, SR, was removed soon after birth. Notwithstanding an unsuccessful appeal by the parents, care and placement orders were made and SR was placed with prospective adopters.

The parents sought leave under s.47(7) of the Adoption and Children Act 2002 ("ACA 2002") to oppose the adoption application; this was refused and the adoption order was made.

The parents then successfully appealed the refusal of leave, and the matter was remitted for a rehearing which came before Mr Justice Hedley who refused leave to oppose the making of adoption orders in respect of the older children but granted it in respect of SR.

Hedley J considered the legal framework provided by the ACA 2002, noting the requirement for the applicant to demonstrate that the adoption would promote the child's welfare and, where opposed, that the child's welfare required that the consent of the parents be dispensed with.

He then went on to consider the relevant case law, quoting with approval the simplicity of Wall LJ's comment in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 that the best guidance was to "apply the statutory language with care to the facts of the particular case" and his observation that the use of the word "requires" in the context of dispensing with parental consent did not give rise to any "enhanced test". The key difference in adoption cases lay in the difference between the welfare test set out in section 1 of the 1989 Act and that in the ACA 2002.

In Re W (Adoption Order: Set Aside and Leave to Oppose) [2011] the court had set out the three stage test: to establish the necessary change of circumstances, satisfy the court that it should exercise discretion to grant leave and, finally, at the substantive hearing, persuade the court to "reverse the direction of the child's life" and not to make the adoption order.  In Re W reference was made to the parents "winning the battle" (of leave) but perhaps still losing the eventual "war". Hedley J had evinced similar views about the difficulties of the hurdle to be surmounted when granting the parents leave in this case.

In this case, by the time the matter came to be heard, the child was settled in her placement and contact to her parents had ceased.

Accordingly, in these circumstances, although the legal burden on the adopters remained unchanged, the parents nonetheless had a significant task in seeking to oppose what had "already been planned and approved by the court".

The relevant questions for the court were:

(i) would SR survive the rehabilitation process?
(ii) would the parents survive that process?
(iii) would they produce parenting consistent with SR's needs over her childhood?

From the child's perspective, all the adult analysis would be incomprehensible; she was a child who had had to move and to break and re-form attachments to her carers. Her parents would be strangers to her. She only knew of the one world and family within which she was currently placed.

With regard to the parents, the trial judge had found them incapable of caring for the children or changing in an appropriate timeframe. He had, however, noted changes by the time of the making of SR's placement order (albeit that these were ultimately not considered enough for their appeal to succeed).

By the time of this judgment, it was accepted that the parents' situation was very different and much improved in both practical and emotional terms. There were, nevertheless matters that led Hedley J to consider that they remained more emotionally fragile than they were aware of.  He was not however "as troubled as others" by concerns about failure to accept responsibility for past events or issues in respect of working with professionals.

There were only two possible outcomes; an adoption order that would devastate the parents or a rehabilitation order that would have the same impact on the prospective adopters.

Having set out the practical steps that would be involved in a rehabilitation plan, the Judge went on to evaluate the alternatives, bearing in mind the "lifelong perspective" required by s. 1(2) ACA 2002.

Having then enumerated the merits and demerits of the rehabilitative process, the judge turned back to the three previously identified questions:

No one could know if SR would survive rehabilitation, which would involve breaking secure attachments and the loss of her current prospective adopters. There would be risk involved in moving her to the care of her (still emotionally fragile) parents and although the risk itself might be "modest", the consequences of failure would, for SR, be "so serious".

As for the parents, Hedley J was more confident as to their resilience and thought they probably would "survive" a rehabilitation process.

In respect of the third question, although the parents were confident they could parent throughout SR's childhood, the judge did not fully share their optimism and his concerns were exacerbated by the gravity of the consequences if things went wrong.

Turning to adoption, the demerits of deprivation of being raised by the natural parents were clear. The other side of the coin though was that, overwhelmingly, children adopted at this age had, at least satisfactory, outcomes.

Looked at through the "prism" of s.1 ACA 2002, the key aspects of s.1(4) in this case were the child's need for security and stability. Consideration had to be given to the risk of emotional harm that would arise should there be a breakdown of any rehabilitation.

Consideration also had to be given to s.14) (f) which set out, in the widest terms, the value to the child of relationships to its relatives and the wishes and feeling of those relatives. In this case, the parents had demonstrated commitment and it was their ability, not their willingness, to care that was at issue.

Having given the matter "most anxious care" and having been clear that no blame attached to the parents or prospective adopters and that he recognised the grief of the parents, the judge concluded that, in the light of his concerns about the child's ability to survive rehabilitation process, the parents' fragility and the risks of breakdown, SR's welfare could only be safeguarded by adoption and he therefore made that order.

Summary by Katy Rensten barrister, Coram Chambers 

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Case No: BH11/2013
Neutral Citation Number:: [2014] EWHC 1777 (Fam)

Court No. 36
First Avenue House
42-49 High Holborn

Friday, 11th April 2014


(Sitting as a Judge of the High Court)
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B E T W E E N:

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Transcript from a recording by Ubiqus
61 Southwark Street, London SE1 0HL
Tel: 020 7269
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1. This is an application by prospective adopters to adopt a child called SR who was born on the 21st July 2011 and is therefore two and a half.  The application to adopt is supported both by the local authority and the guardian and, by necessary inference, by the expert witnesses.  It is opposed by the parents who were given leave to oppose it by me on the 20th December 2013. 

2. Let me set the context of the case by referring first to the broadly uncontentious history of the matter.  There are three older children to SR called B, M and H.  The mother is the mother of all four children.  The father of SR is also the father of H but the father of B and M plays no part in these proceedings.  An emergency protection order was taken on the eldest three on the 1st July 2010.  In the ways in which these things tend to develop, it was a year later before His Honour Judge Bond in the Bournemouth County Court made care and placement orders in relation to those three girls.  They had, as it happens, always been in the same placement and as will appear, they have now been adopted within it. 

3. On the 21st July 2011 SR was born.  Some two weeks later an emergency protection order was taken out on her and she was removed from the hospital.  On the 1st October 2012 a care and placement order was made in relation to SR by Judge Bond who, in fact, has had all the dealings with this case, other than the recent ones had by me or by the Court of Appeal.  Judge Bond clearly had anxiety about making these orders because he had originally adjourned the case and insisted that there should have been a proper assessment of the parents' ability to care for SR.  Notwithstanding that, on the 1st October he made the orders that I have indicated.  The parents sought permission and, indeed, obtained it to appeal against those orders.  However, on the 12th December 2012, that appeal was dismissed. 

4. As on the 19th November 2012, SR had been placed with the prospective adopters.  The position now appeared to have been entirely settled, so far as she was concerned.  The prospective adopters would be entitled to make their adoption application and would be entitled to assume that there could be no further opposition to it.  It is also the fact that it is round about that time that the parents last saw SR, not because of any want of enthusiasm on their part, but because no opportunity so to do has been afforded to them.  In the event, the parents sought leave to oppose the adoption applications under Section 47(7) of the Adoption and Children Act 2002.  That matter came before Judge Bond again in Bournemouth and on the 6th June of last year he refused those applications and made an adoption order.  In the event, he did not, however, hold a celebratory event.  The parents sought and obtained permission to appeal against the refusal of leave and on the 16th October 2011 that appeal was allowed by the Court of Appeal who directed a rehearing of the matter before the learned judge.  In fact, the judge decided that properly the matter should be transferred to a judge of the division.  Therefore, in due course, it came before me in December.  On that occasion I refused permission to oppose in respect of B, M and H.  Their cases were remitted to Judge Bond and I understand that adoption orders have now been made.  I did, however, grant permission to defend in relation to SR for reasons that are set out within the judgment and do not need repetition here.

5. In the course of the documentation in this case, reference was made to SR having been placed with the prospective adopters on the basis of a concurrent placement.  I suspect, substantially unbeknown to the local authority, that term has come to be a term of art as a result of certain projects that had taken place at Coram and at Manchester  in which concurrent planning was the title chosen to introduce a concept in which a child would be removed, placed with adopters, a serious attempt at rehabilitation would be made and, only if that rehabilitation failed, would the child be adopted and would be adopted by those who had been caring for him or her since first placement.  Here in this case, what was really in mind was not concurrent but consecutive placements, that is to say to comply with the fostering regulations until able formally to be placed for adoption and then to comply with the adoption regulations thereafter.  It has given rise to confusion because, of course, as a result of the parents' opposition to the adoption application, concepts of rehabilitation have been raised and of course concurrent planning would suggest that the foster parents might be in a position to deal with that, whereas the truth of the matter is that the placement with them was exclusively with a view to adoption and, were any other course to develop, the probabilities are that they would not be invited to facilitate it.

6. Now, I turn to the legal framework within which the court is required to operate and that is, as I say, the Adoption and Children Act 2002.  It is unnecessary for me to go through the formalities of qualification to apply to adopt because everybody accepts that the prospective adopters are so qualified and so entitled.  What that would then mean normally is that they would be required to demonstrate that the welfare of the child would be promoted by the making of an adoption order and that, if the case is opposed, they would have to establish that the child's welfare required that the consent of the parents should be dispensed with.  It may be helpful at this stage just briefly to look at the relevant law, so far as welfare rendering it necessary to dispense is concerned.  It is to be found in the case of Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 in which the leading judgment is given by Wall LJ, as he then was.  I propose to refer to two short passages.  The first is at paragraph 117 where the judge says this:

'In summary, therefore, the best guidance which in our judgment this court can give is to advise judges to apply the statutory language with care to the facts of the particular case.  The message is, no doubt, prosaic, but the best guidance, we think, is as simple and as straightforward as that.  Moreover, it very much echoes what this court said in Re S in relation to special guardianship orders.'

7. That is a view which I gladly embrace and will seek to apply.  The second passage relates specifically to the concept of 'requires' in Section 52(1) (b) of the Act and at paragraph 125 and following the learned Lord Justice says this:

'This is the context in which the critical word "requires" is used in section 52(1)(b).  It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence.  And viewed from that perspective "requires" does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.

What is also important to appreciate is the statutory context in which the word "requires" is here being used, for, like all words, it will take its colour from the particular context.  Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child's welfare "requires" adoption as opposed to something short of adoption.  A child's circumstances may "require" statutory intervention, perhaps may even "require" the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily "require" that the child be adopted.  They may or they may not. The question, at the end of the day, is whether what is "required" is adoption.

In our judgment, however, this does not mean that there is some enhanced welfare test to be applied in cases of adoption, in contrast to what might be called a simple welfare test.  The difference, and it is an important, indeed vital, difference, is simply that between section 1 of the 1989 Act and section 1 of the 2002 Act.'

8. I will of course return to that at the end of the judgment.  Although that will remain the fundamental test, that is to say the need for the prospective adopters to demonstrate that welfare will be promoted by adoption and that the welfare of the child requires that the consent of the parents be dispensed with.  The position in this case is in fact a little different to that.  The fact of the matter is that by the end of 2012 the case of SR appeared settled.  The placement order had been confirmed.  She was in placement with prospective adopters and contact with the parents had been brought to an end.  This matter was considered by the Court of Appeal in the case of Re W (Adoption Order: Set Aside and Leave to Oppose) [2011] 1 FLR 2153 the lead judgment being given by Thorpe LJ.  I propose to read into this judgment paragraph 18 because, in my view, it assists greatly in providing the framework for thought in a case such as this: 

'Once an adoption application is challenged by the natural parent at a very late stage, it is easy to see that to avert the progress, the completion of the progress to adoption, the applicant has to clear three fences which can be seen to be progressively higher fences.  The first is to establish the necessary change of circumstances. The second is then to satisfy the court that, in the exercise of discretion, it would be right to grant permission.  The third and final stage would of course be to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child's life has travelled since the inception of the original public law care proceedings.'

9. It was no doubt with those words in mind that the president, at the conclusion of his judgment in the appeal in the present case used these words, 'The parents have survived this battle and stand to fight another day.  They may yet lose the war.'  That comes from paragraph 48 of his judgment and is echoed I think in my own judgment of December 2012 at paragraph 25 where I said this:

'In the end and not without some misgiving, I have concluded that the applicants should be given leave to oppose the adoption application in relation to SR.  It appears to me that though there may be a very good case to be made in favour of adoption, there is enough to be said against it that I would indeed be taking too narrow and too harsh an approach to exclude them at this stage.  In the light of the changes made by the applicants, the age of the child and that she was always to be brought up separately from her natural sisters and given the absence of adverse memory or experience by her of her parents, I think justice requires and the welfare of the child permits the parents to put their case at the adoption hearing.  They have no particular grounds for optimism but in my view they have a sufficiently solid case that they should be allowed to put and the court should be required to hear and consider.'

10. And that indeed is exactly where we are now.  Although the final legal burden on the prospective adopters remains unchanged, the parents, according to Re W have a significant evidential burden of laying solid grounds of opposition to what has already been planned and approved by the court.  I mentioned at the end of the hearing that I thought, this being, I think, the first case at full trial after the bout of cases in the Court of Appeal, that it would be proper normally to provide a written judgment so that others could see how the process works out.  My anxiety was this would have involved delay and my own personal commitments meant that it would be mid-May, at the earliest, before such a judgment could be produced.  I am deeply conscious that even a day is agony for the two couples in this case, that is to say the prospective adopters and the parents, and since the judgment is primarily for them and not for anybody else, it seems to me entirely proper that I should give it now, recognising as I do that it will not adequately reflect the learning deployed in the written and oral advocacy which I have had the advantage of receiving in submissions, but I trust that from at least the form and substance of the judgment it will be apparent that those matters have received due consideration. 

11. Coming back then to the essence of this case, all parties agreed that there were probably three factual questions that the court had to ask and answer.  First, would SR survive the rehabilitation process?  If yes, secondly, would the parents survive the rehabilitation process?  If yes, thirdly, would they produce parenting consistent with the needs of SR over the balance of her childhood?  It seems to me, in a case such as this, it is always best to start by looking at things as they will appear to the child herself.  All the adult analysis and debate and arcane recital of authority is wholly incomprehensible to her.  The world, so far as she is concerned, looks very different.  She was removed from her parents after two weeks at hospital.  However, unlike the other children, she had had no adverse parental experience this being, as it were, a likelihood of harm case, rather than a harm case.  From the 4th August 2011 to about the 19th November 2012 she was placed with a foster carer called Karen, to whom she clearly became securely attached over that period of time.  Moreover during that time, she had what I am content to accept, was positive experience of parental contact.  Her life changed dramatically on the 19th November 2012 because she had to break that secure attachment and re-form it with people who were, in effect, strangers to her.  There is no doubt that she had some difficulties with that.  There is no doubt they were only the kind of difficulties that anyone would have expected and there is no doubt that they were substantially overcome.  As far as she is concerned, the last parental contact she had was a lifetime away and since then she has settled down and made her home and family with the prospective adopters.  Her parents will perforce now be strangers to her.  She has only one home and only one world and that includes, as everybody recognises it would include whatever happens to her, the extended family of those who care for her.

12. Let us then turn to the parents' position because that is a sensible place to start where the evidential burden rests on them.  They have acted throughout in person.  That is clearly a particularly stressful experience, not only because of what for them is at stake, but for the volume of documentation and the flurry of learning that has descended from the appellate courts during the course of these proceedings.  They have been assisted throughout by Mr Levers, who is a retired social worker, indeed was once social worker to this family, but that had ceased before any legal proceedings here started.  He has manifestly, with his wife, been a tower of strength to the parents throughout these proceedings.  He has afforded not just litigation but personal support and I am entirely satisfied that such support would continue unabated into the future, whether it is in supporting the parents in renewing their care of the child or supporting them in their grief in being deprived of the opportunity of doing that.  In my view, the parents have ensured that the case they want the courts to consider is clearly before the court and I hope they share that view. 

13. On the 1st July 2011, that is to say the hearing before Judge Bond in relation to the older children, it is an inescapable conclusion from the judge's judgment that he took the view, not only that the parents were currently incapable of caring for those children, but that they would not be in a position to do so within any timescales acceptable to them.  There can in truth, in cases like this, be no other basis on which a placement order can be justified and made.  It is, however, apparent that by October 2012 the position had changed and the judge had noted the change, criticised the local authority for not reassessing and required them to do so.  He concluded in his judgment that the parents had indeed made real progress but it was not of sufficient extent to justify a change in the local authority's plans, nor was it one which was going to allow for change within a timescale acceptable to SR.  As I say, the parents sought and obtained permission to appeal against that judgment and although the appeal was dismissed, the very fact that that process took place suggests that the outcome was regarded as not obvious and the decision as difficult. 

14. If we come up to today's date, everybody accepts that the parents are in a very different position indeed to the one that they were in, in July 2011 or indeed October 2012.  They enrolled themselves in university courses at the Greenwich Business School at its Greenford Campus in West London.  They have set up their own home in Hayes in West London, having moved up from Dorset and they have established for themselves all the appearances of a stable lifestyle in which studies are accommodated and part-time work ensures both that they have control of money and also their ability to live independently.  Moreover, the mother has completed and benefitted from therapies which were designed to address the emotional dysfunction which she recognised she had.  The father has clearly benefited from involvement in a domestic violence course and the very fact that he saw it through is good grounds for optimism and it has been not without its benefits to him.  Both the parents are able to give an articulate and compelling account of the progress that they have made.  Both parents acknowledge the need for further work if so advised, both in respect of couple counselling and in the respect of the mother for some more individual work.  Two issues have been raised which it is said cast doubt on the solidity of this progress.  The first related to an incident in the summer of 2013, in which the parents got involved in a row in public of an intensity that provoked a response from an uninvolved person.  Now, whilst I recognise that there would be an element of concern that such a thing happened, I accept the father's evidence that he handled it better than he would have done earlier, even if, as he recognised, he did not handle it ideally.  However, importantly for me, it remains an isolated incident and it is not an incident which, standing alone, carries any great weight in enabling me to determine the outcome of this case. 

15. Of more concern in the way it was urged before me was a 'separation', and I put that word in inverted commas for the moment, which took place in March this year.  The mother had deferred her course because she had become disappointed or disillusioned with it.  She had, through the good offices of friends, been offered what she regarded as a very attractive job in Bournemouth and she accepted it so that it required her to live away from Hayes for five out of seven days in each week.  Now what the parents say about all this is this: the proceedings were deeply stressful to them, which I accept, and there was a feeling of a need for a break.  The parents say they had to plan, not only for success in their application, but also for failure in their application to ensure that life could go on.  They say that they are still immediately available to SR if required and, indeed, say that they would relocate to Dorset if that was of major assistance in any rehabilitation.  I do not doubt the genuineness of what they have told me.  I think, however, that these parents, both as individuals and as a couple, are rather more emotionally fragile than they feel or are aware of though, frankly, that is true of many who nevertheless function satisfactorily in society. 

16. What then are the concerns that were raised in particular in the expert evidence about the parents?  The expert evidence consisted of the clinical psychologist and an independent social worker, both of whom have provided extensive written reports and gave oral evidence at this hearing before me.  Both of them acknowledge the parents have made very substantial progress since they, the experts, first dealt with them when they, the experts, were recommending the permanent removal of the older children.  Both experts, in their written evidence at least, concluded that if the parents have another child, whilst an assessment may be needed, the child should not be removed from them while such an assessment took place, though it is only right to record that in this, as in pretty well every other matter of which she spoke, the psychologist became increasingly cautious as she gave oral evidence.  However, said the experts, the real progress that has been made is not enough to justify attempting a rehabilitation of this child at this time.  They contend that much work remains to be done.  The psychologist in oral evidence, though I am not sure she had said it in her report, said that some of that work, quite a lot of it, would have to take place before a rehabilitation started.  They both said that it was really impossible to assess the real risks involved in rehabilitation without there being some significant contact which could be observed and evaluated.  Of course, everybody in the case accepts that contact is simply impracticable unless and until an order has been made refusing the adoption.  Those of course are all matters that I must take into account.  I was left with the impression, and I do not assert this because it was only an impression, that the psychologist became increasingly cautious once she realised that serious consideration was actually being given to the case that the parents were seeking to advance. 

17. Now, there are two other matters which have been universally advanced as grounds for concern about the parents.  The first of those is a failure by the parents to accept their responsibilities for what has happened in the past.  Now, I am ready to accept that there is something in this concern because it is clear to me that they do not accept the full implications of Judge Bond's judgment of the 1st July 2011.  However, they have, by what they have done, shown a real awareness of deficiencies in their own parenting and personalities.  They have demonstrated a serious commitment to the cause of endeavouring to improve themselves and I think I am not as troubled as others by their failure, as it were, to make unmitigated confession in respect of everything that has occurred.  I am not saying there is not something in it, but the something that is in it that may be truly significant, is a failure to appreciate just how far they would have had to travel to get from the 1st July 2011 to the place where rehabilitation could begin.  Secondly, it is said that they have failed to work honestly and openly with professionals.  I fully accept, as I think do they, that there have been some examples of that but that needs to be qualified I think by two other observations.  The first is that they have certainly not been amiss at making admissions contrary to their own interests from time to time during the course of these proceedings.  How otherwise could they have, as it were, done what they have done to demonstrate a commitment to improvement?  Secondly, I think they and the social worker were placed in a next to impossible position by a family placement and adoption officer being left with the responsibility for dealing with a case which was, in fact, all about a removal and rehabilitation.  Adoption and placement officers have a very distinctive role to perform, which is based on the assumption that a decision has already been made that adoption is in the best interests of the child and their role is to procure that end.  The social worker was being asked to do something that was completely counterintuitive and I am not surprised that she and the parents found relationships in those circumstances difficult.  Nothing turns on this, in my judgment, but it was canvassed in the evidence so I think I ought to express the view that I attach no significance whatever to anything that was or was not said in the last interview between the social worker and the parents.  If the purpose of an interview is to establish evidence it has to be properly noted at the time.  I thought we had all learnt that by 1984 at the latest and, of course, if that is not the purpose and there are other purposes well of course nobody has to sit there poring over notebooks, but it was being used as though that were the purpose of the interview and it was wholly inadequate to achieve that end.

18. I recognise that there would be some risk of the parents being less than fully candid with a professional.  However, it seems to me that the whole history of the case viewed in the round encourages one to the view that they would be in relation to things that really mattered and that such a risk, if all other things were equal, would be a risk worth accepting.  Everybody agrees that there are only two possible outcomes in this case.  Either an adoption order is made with resultant devastation to the parents and their families or a rehabilitation order is made with subsequent devastation to innocent prospective adopters who took this child under a placement order without a hint, so far as they were concerned, that the thing could ever blow up on them.  I have no doubt, and I will come back to this in a little more detail, that the child would make progress within an adoption setting.  I have no doubt too that the natural family's role would be limited to that of post box contact.  If a rehabilitation were to be attempted, I accept that there would be a probable move to an interim placement, that there would be parallel introductions to the parents, that thereafter everyone would simply have to take it as it comes, and that there may well be options for parallel therapy to take place, both on a couple and individual basis.  Therefore, those seem to be the choices that confront the court and I must evaluate those with care, bearing in mind both the lifelong perspective required by Section 1(2), and also that this is not a choice in any real sense.  This is a case in which an adoption order will only be made if only an adoption order will meet the welfare needs of this child and that the welfare needs of this child requires an adoption order be made.  I evaluate it bearing in mind what Thorpe LJ said about the last hurdle being the highest, but I also bear in mind that at the end of the day, the legal burden to establish adoption lies not on the parents but on the prospective adopters. 

19. Therefore, let me start with my consideration of the merits and demerits of the rehabilitative process.  I am satisfied that the parents have been committed to the concept of self-improvement.  I can see the basis on which they say that they have achieved all that has been asked of them, but of course I have to remind myself that it is where you start that determines how far you have to go and doing all that you reasonably can may not in fact be to do enough.  I need to remember, in the context of rehabilitation, where SR is at now, where the parents are at now and the full implications of what is involved in working out rehabilitation.  Thus, if it were successful the child would grow up with the natural parents in settings in which the vast majority of children grow up and I recognise that it was always going to be the case that whichever choice the court made in this case, SR was going to grow up separate and apart from B, M and H.  On the other hand, if the rehabilitation were unsuccessful, everybody agrees that would be a disaster for SR.  Of course, no one can actually predict what would happen if the rehabilitation were unsuccessful but all the realistic possible outcomes merit the description 'disaster', so far as SR is concerned.  Hence, the three questions that emerged.  Would SR survive rehabilitation?  Would the parents survive rehabilitation?  Can the parents provide the necessary ongoing care for the next 15 and 16 years?  Let us come to those questions in the context of considering rehabilitation.  Would SR survive rehabilitation?  Well, the short answer is nobody can give a confident answer to that because there can be no contact and because nobody would have any choice but simply to see what happened when you tried it.  Secondly, it will of course be a second breaking of secure attachments and an attempt to make a third set of attachments.  It would involve the burning of all boats, because the prospective adopters would not be available to her, in the light of a breakdown in rehabilitation and she would have to start all over again.  It would mean a move to two people, i.e. the parents, who I think are emotionally more fragile that the prospective adopters and it would involve assessing that risk in the context of consequence.  A modest risk that involves a serious consequence, should it come about, will invite much greater caution than the wider risk for which the consequences are predictable and manageable.  This very firmly comes in the first of those categories.  I confess to having very real fears for SR, should this process happen because, although the risk of failure is by no means certain, it is clearly real and the consequences are so serious.

20. The second question, would the parents survive the rehabilitative process?  I have more confidence in that.  Even if they underestimate the possible difficulties involved, they do appreciate that seriously troubled waters would lie ahead and they are willing to relocate and they are committed to the process, so that were SR to survive the process, then it seems to me it would be fair to conclude that the parents probably would.  However, that then leaves the third question: would the parents provide ongoing care throughout this child's childhood?  The parents are confident that they could and I fully accept that that expression of confidence is genuine, in that it reflects what they feel and believe.  I have to confess, however, that I do not fully share that confidence, partly because of their emotional fragility and partly because of their unknown capacity to react to what may be wholly unpredictable and quite irrational demands and responses of an upset child.  This is a radically different state of affairs from dealing with a new baby, as we are dealing with a child that is attempting to make, and putting at risk, the third set of attachments in the first five years of her life.  My confidence is inevitably dented by the gravity of the consequences of it all going wrong. 

21. Now, what are the merits and demerits of adoption?  Well, the demerits are clear enough.  She will be deprived of being brought up, as the vast majority of children are brought up, by their own parents.  That can lead, I fully recognise, to issues both in adolescent and adulthood because a child who will know what the background is will know that they are not being brought up in the way in which children are usually brought up.  On the other hand, one has to recognise that a placement of a child of this age who has good attachments to the prospective adopters will, in the overwhelming number of cases, lead to at least a satisfactory outcome of family life.  Now, of course, you can have both at the same time.  You can have a satisfactory outcome with all the issues that adoption can raise in adolescence and adulthood and the fact that they have been brought up differently.  The two are by no means exclusive and one has to consider them all together. 

22. Having as it were, looked at the respective merits of the approaches, let me stand back and review all this through the prism of Section 1 of the Adoption and Children Act 2002.  I remind myself that subsection (2) requires that the paramount consideration of the court must be the child's welfare, throughout her life.  I am anxious when I reread subsection (3) which says, 'The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the children's welfare.'  Well, it was once pointed out in the past that SR had been involved in litigation for the whole of her life after the first fortnight and that remains as true today as it was then.  Mercifully, for one reason or another, she will not be conscious of the litigation that goes on at some distance from her own awareness, though she will be deeply conscious, if not able to articulate, the fact that she has had two moves, three homes during the course of her life, if you include the first fortnight as one of them, which I do. 

23. So far as Section 1(4) is concerned it seems to me that the key aspects of it in this case are the child's particular needs, in terms of security and stability, having regard to her life experiences to date and the child's age, which has the effect of making it impossible for her to understand the adult world in which her future is caught up or to explain to that adult world the effect that that is having on her.  I used the expression earlier that we are likely to see unpredictable and apparently irrational demands being made by a child who has no other capacity to communicate when distressed or confused by what is going on around her.  There are two other aspects. First, one must consider the harm that she is at risk of suffering; that is entirely, in my judgment in this case, associated with the risk from a breakdown in rehabilitation and the emotional harm that will be occasioned by that.  It would not however be right to part with the matter without, secondly, considering the requirements of subsection 1(4)(f) which provides as follows:

'The relationship which the child has with relatives and with any other person in relation to whom the court considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child's relatives or any such person to provide the child with a secure environment, in which the child can develop or otherwise meet the child's needs and the wishes and feelings of any of the child's relatives or any such person regarding the child.'

24. Now, that is drawn in very wide terms simply because adoption can arise out of a whole concatenation of circumstances which bear little or no relationship to one another, as between one case and another.  However, it seems to me in the context of this case that the court, as part of the welfare and the judgment is to take account of the fact that we have parents who are willing to provide the child with a secure environment in which the child can develop or otherwise meet the child's needs and what is in question is not their willingness but their ability to do so and that seems to me a matter on which the court should reflect.  Secondly, the wishes and feelings of any of the child's relatives regarding the child.  I have only cursory evidence as to the input of the extended family but it is enough to suggest to me that the parents when they speak, speak with the support of their families and that therefore the wishes and feelings of the extended families and the parents are properly to be taken into account.  The parents have demonstrated a commitment to the child which entitles them to have their wishes and feelings considered.  Therefore, in my review of all this through the prism of Section 1, I have reminded myself of the need for a lifelong perspective.  I have reminded myself I am dealing with a child with particular needs, in terms of stability and security.  I have reminded myself that I am dealing with a child too young to understand the adult affairs that surround her and in which she is inevitably caught up.  I remind myself that a breakdown in rehabilitation would, on anyone's account, give rise to a risk of suffering harm and I have taken close account, I hope, of the ability and willingness of parents to provide for her and their wishes and feelings about that happening.

25. I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other's predicaments.  However, above all what is at stake for SR?  There can be no blame attached to any of the four adults for why we have all ended up where we have.  Nevertheless, a decision of profound significance has to be made.  In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption.  My real concerns about SR's ability to survive the process of rehabilitation and the parents' ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again.  All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents' consent.  In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact.  If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it.  That said, those are the orders that I propose to make. 

End of judgment.