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AB (Contested Adoption) [2019] EWFC B68

HHJ Simmonds delivers an ex tempore judgment at the conclusion of the final hearing in an adoption application in respect of two children.

This case concerned two boys, A and B. A was 4 coming up for 5 and B was 3 soon to be 4. Care proceedings were issued for them alongside their two older half siblings, D and E. There were concerns that the boys were being neglected in the face of a poor home life and neglectful parents who were abusing substances. For A and B, they suffered developmental delay as a result of this and needed skilled parents to undertake reparative parenting. Proceedings had been resolved for D and E earlier and they were to reside near to the family home with their father. They enjoy regular contact with their mother and her partner, A and B's father.

D and E also have contact with their other half-brother, A and B's full sibling, C (21 months) who under a different set of proceedings is living with the parents under a Care Order. At the time of this hearing there had been exceptional progress from the parents' in the care they were providing such that C was thriving and there were no safeguarding concerns. The LA were looking to discharge the Care Order. 

Proceedings for A and B have continued, and placement orders were made for them. Following the placement orders being made in April 2018, the boys had farewell contact with their parents and older siblings in May 2018 and were placed with the applicants in this matter, the prospective adopters in June 2018. They have remained with them since this time.

In January 2019 the prospective adopters applied for adoption orders. However, the parents applied for and were later granted leave to oppose. There had been a significant change in circumstances for the parents. HHJ Simmonds who had dealt with this case from the start of these proceedings and had dealt with proceedings for C felt that "they were different people" to those he saw at the end of proceedings and they had gone beyond what he thought was possible. He felt that this was not "a fanciful application." [19]

The Law
This application was heard under s47(4) Adoption and Children Act 2002, as this was an adoption agency adoption with a placement order in place. However, as per McFarlane LJ at paragraph 11 in Re B-S (Children) [2013] EWCA Civ 813, this application should be heard under s47(2). The adoption order can only be made if the Court is satisfied that the children's welfare requires parental consent to be dispensed of and it is necessary and proportionate to do so. This will be in light of the circumstances at the time of the hearing. [22] and [23]

HHJ Simmonds went on to say that the making of adoption order is extreme and should only happen should the welfare and best interests of the child dictate. It is necessary to take a global and holistic view of the children's welfare, and the positives and negatives of all of the options. The long-term welfare in this case is life-long welfare. There should also be regard for the Article 8 rights of both the parents and the prospective adopters and their families subject to the children's rights in the event of conflict. As HHJ Simmonds reminds at paragraph [72] the decision to be based on the children's welfare. It is not a competition between carers.

Should the adoption order be made, HHJ Simmonds said it would be necessary to consider a contact order is made. However, this should not be imposed on adopters who are unwilling unless there are "extremely unusual circumstances" as per Re B (A child: Post-Adoption Contact) [2019] EWCA Civ 29.

This case demonstrates what practical arrangements might be necessary and undertaken in such a situation. The prospective adopters throughout were referred to as Daddy and Pops and were present in court via video link until they gave their evidence, when the parents went into the video link room.

Two assessments were undertaken for the contested adoption hearing. One of these reports which focused on the parents was from Dr Schoeman who gave evidence in the original proceedings. Dr Schoeman said that the parents had learnt to attune to C, and they would be able to learn to attune to A and B. She thought they could probably parent these boys but only if they would allow it and they had support. It was not her belief that the boys would present challenging behaviour as Dr Blincow suggested but if they did, she thought the parents would be able to deal with it. When asked she did accept though that it would be a concern if there was no empathy from the parents.

The other assessment was undertaken by Dr Blincow who focused on the children and was the only expert who met all parties and the children. It was his view whilst possible the parents could carry out the therapeutic reparative work the boys needed, it would be difficult for them to do so and should they fail, any long-term benefits would be outweighed by the damage done at this time. He said that moving them into uncertainty now would be a high-risk strategy. The Guardian adopted and supported his assessment believing that the children should not be removed from their current placement.

In the care of the prospective adopters A and B had begun to catch up to where they should developmentally be and were continuing to receive reparative care as they were in foster care. Dr Blincow said they were achieving their "optimum potential." [31] They have formed attachments with the prospective adopted family and whilst they acknowledged that the parents had made significant changes, they felt it would be damaging to remove the boys at this stage. [68]

The parents had undergone residential assessment with C which had a positive outcome. They began engaging with parenting and substance abuse work which they have continued to do even following the end of the assessment and say they are committed to continuing. Their relationship with the D and E has improved and the Mother is able to deal with challenges they present on occasions. They felt that the boys would have a true sense of belonging with them and their evidence particularly that of the Mother suggested there is still disconnect between the boys' realities and their needs. Concerns were raised on their behalf that the LA were not holistically considering the case and them as an option. However, there is no need for them as with any LA to take a neutral stance in their case.

With respect to contact both sets of carers accepted that it would be important for the boys to have contact with the other party. The prospective adopters had a more reserved view on this and maintained that this would be a discussion "once the dust was settled." [69]

HHJ Simmonds said that when the factors set out in the welfare checklist are considered in terms of life-long welfare as well as that of the short- and medium-term welfare it seemed necessary and proportionate to dispose of parental consent and make adoption orders. It was his view that only this would do.

The boys now saw their lives and family as that of the prospective adopters although it has to be acknowledged that they are likely to want to be part of their larger sibling unit and grow up with their natural parents where possible. At the same time there has to be an awareness that they will have little memory of their siblings given their age and the time passed since they last saw them. Due to their past it was felt they had increased needs which demanded better than good enough care from someone with an existing suitable skillset, stability and security. They have stability and security with the prospective adopters and to lose that at this stage was deemed to be damaging.

Given this and preferring the opinion of Dr Blincow it seemed that to move the boys now and place them in the care of the parents,  would not be in their best life-long interests. The parents continuing their journey of work, caring for C and contact with D and E would not be able to meet the needs of A and B, which was paramount in this decision. HHJ Simmonds did not suggest that there were no risks in making the adoption order. In the short- and medium-term the risks were small, but they increased with time and the likelihood that the boys will want to know their background. This risk, however, can be mitigated by the support of the prospective adopters and life story work. [85]

In consideration of contact, having regard to the UEA research on contact, HHJ Simmonds made no order for contact saying that the factors necessary for contact to work were not present. These factors are the right adopters; the children in the right place; and the birth parents in the right place. [95] He hoped that with the assistance of the LA this might eventually take place and would occur at the level of twice yearly as the parties agreed.

Summary by Molly Mifsud, pupil barrister, College Chambers

Read the full judgment of AB (Contested Adoption) [2019] EWFC B68  on BAILII