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M-J (A Child) [2007] EWCA Civ 56

Appeal by mother against an order placing her child for adoption with her half-sister. She argued that the half-sister should be appointed as special guardian instead. Appeal dismissed

Judgment was given in this case alongside two other cases - Re S and Re AJ - both dealing with the same points of law concerning adoption and special guardianship. Paragraphs 40 to 77 of this judgment in Re S should be read into this judgments as the agreed commentary on the statutory provision of all the judges involved in the three appeals


Case No: B4/2006/2429/2430/2431

Neutral Citation Number: [2007] EWCA Civ 56
Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 6th February 2007
Before :

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Between :

ARJ (Mother) Appellant (1st respondent)
- and -
Newport City Council (Local Authority) (2nd respondent)
JM-J (Child) (2nd respondent)
SJ (Aunt) (3rd respondent)

M – J (A Child)
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(Transcript of the Handed Down Judgment of
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Abigail Bond (instructed by Winterbothams Ltd - Solicitors) for the Appellant
Sian Parry (instructed by Newport City Council – Solicitors) for the 1st Respondent
Paul Hartley-Davies (instructed by Devonalds - Solicitors) for the 2nd Respondent
Sian Parry (instructed by Humphreys – Solicitors) for the 3rd Respondent

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As Approved by the Court

Crown Copyright ©

Lord Justice Wall:
1. This is the judgment of the court.

2. The mother of a male child born on 10 June 2003, whom we will identify only by the initials MJ, seeks permission to appeal against an order by Recorder O'Leary sitting in the Newport (Gwent) County Court on 3 November 2006. The order against which the mother seeks to appeal is that MJ be adopted by the mother's maternal half-sister, SJ, with whom MJ had been placed pursuant to a care order made on 14 March 2005. The mother acknowledged that she was not in a position to care for MJ. Her case was that he should remain with SJ under a special guardianship order.

3. This is, accordingly, the third of the triptych of cases heard in this court in November and December 2006 in which the question for the court had been the choice between an adoption order and a special guardianship order. All three judgments are being handed down on the same day, and in these circumstances, we do not propose to repeat the general discussion and guidance contained in paragraphs 40 to 77 of the first of the cases, Re S. For the reasons given in that case, however, we adopt the same thinking in those paragraphs.

4. The mother's application for permission to appeal came before Thorpe LJ on the papers on 11 December 2006. He adjourned it for an oral hearing on 19 December 2006, and directed that the appeal should follow if permission was granted. As the question it raised is one of general importance, we granted permission to appeal at the outset of the hearing, and at the conclusion of the argument announced our decision that the appeal would be dismissed. However, we reserved our reasons, which we now give.

The facts
5. We think we can do no better than to set out the recorder's summary of the background to the case, which appears in the first seven paragraphs of her clear and thoughtful judgment: -

"1. This is the final hearing of various applications brought in respect of the child MJ, born on 10 June 2003. He is a little boy of three years and almost five months of age. (He) was born at 36 weeks gestation with a history of growth retardation in the womb. His mother, who is aged 32, and her partner, Mr. M, had problems with alcohol and drug dependency, and MJ had a history of early hospitalisation, admission due to failure to thrive. MJ was accommodated by the local authority in a foster placement in December 2003 and the local authority instituted care proceedings in June 2004. In the period between December 2003 and early 2005, the mother had regular contact with MJ but she was frequently under the influence of alcohol.

2. MJ is the subject of a care order made on 14 March 2005 on the basis of an agreed care plan of 11 February 2005 which provided that he would be rehabilitated to his mother subject to (1) his mother successfully completing the first stage of her rehabilitation from her drug and alcohol addictions at a residential unit (2) successfully completing the second stage of the detoxification programme; and (3) successful completion of all the above by no later than the end of 2005.

3. In the event of failure, the local authority's contingency plan, a placement with the maternal half sister, SJ, the 3rd respondent within these proceedings before me, for adoption, would be implemented. In addition, the placement contingency plan was to be triggered if the mother was found to have consumed any alcohol or any substance at all before taking over care of MJ.

4. The history indicates that initially all went well. The mother moved to the second stage of her programme on 31 March 2005. Contact included overnight staying contact at this time, but the mother relapsed, taking heroin on 7 May 2005, and in accordance with the care plan replicated in the contract of expectations and signed by the mother in March 2005 the contingency plan was implemented and MJ was moved from his foster carers to the home of his aunt in August 2005.

5. In due course, the mother completed the third stage of her programme of recovery this month.

6. The applications before the court at the commencement of the final hearing were, firstly, the application of the local authority to free MJ for adoption, that application being made under (the 1976 Act) on 3 October 2005; secondly, the mother's application to discharge the care order, and a section 34 application for contact made on 13 April 2006; thirdly, the application of SJ to adopt MJ brought under section 46 of (the 2002 Act). By the order of HH Judge Gaskell of 6 October 2006, it was ordered that the mother's application to discharge the care order would be heard first and if unsuccessful the local authority would not seek an order on their freeing application but would support the application of SJ to adopt. In fact, the evidence in relation to all the applications has been heard together and all applications fall to be disposed of by this judgment.

7. However, the mother at the conclusion of her evidence indicated when being re-examined by her counsel that she no longer pursued her application to discharge the care order or for contact, conceding that MJ's interests would be best served by remaining where he was. I indicated that in due course the court would accede to the mother's application for leave to withdraw her applications, and the balance of the hearing before me was devoted to evidence on the discrete issue of whether MJ should remain with SJ under a special guardianship order or an adoption order. The issue remaining for adjudication is a narrow albeit fundamental and important one for all parties."

The evidence before the recorder
6. It will be immediately apparent that, unlike the cases of Re S and Re AJ, the adoption proceedings taken by SJ were instituted under the 2002 Act. This court has set out the relevant provisions of the 2002 Act in paragraphs 35-36 and 38-39 of its judgment in Re S, and we do not propose, accordingly, to repeat them in this judgment.

7. The recorder heard oral evidence from the mother and from Dr. Wenban-Smith, a chartered forensic psychologist whom the recorder described as having been instructed to assess "amongst other matters, MJ's future placement needs, his attachments, and further contact needs". The recorder also had oral evidence from the prospective adopter, the local authority social worker and from MJ's guardian. The recorder also had reports from Dr Jamil, a consultant psychiatrist jointly instructed in June 2006 to report on the mother, and a statement from an independent social worker who had observed a contact between MJ and his mother on 16 August 2006.

8. The recorder regarded it as being of importance that SJ's position since her initial meeting with the local authority in May or June 2004 had been that if MJ could not be looked after by his birth mother, she would offer him a permanent home on the basis of adoption by her. The recorder found as a fact that this was also what the mother in early 2004 indicated she wanted, and that she agreed to it in March 2005, both in the care plan and in the "contract of expectations" to which the recorder had previously alluded.

9. The mother, however, had changed her mind by January 2006, when she told the local authority that she did not feel able to consent to MJ being freed for adoption. At the same time, she acknowledged that she did not have any plans to resume the care of MJ, since she accepted that this would not be in his best interests. There was, however, a further fundamental shift in the mother's position in March and April 2006, and in her statement filed in support of her application to discharge the care order, she attempted to explain her change of heart by indicating that she had concerns about SJ's ability to meet MJ's emotional needs. The result was the vacation of the final hearing fixed for 20 and 21 April 2006, and the instruction of Dr Wenban-Smith, Dr Jamil and the independent social worker to whom reference has already been made.

10. Unfortunately, but perhaps unsurprisingly, the mother's change of heart had what the recorder described as "a devastating impact" on her relationship with SJ. The recorder found that SJ had not known of the mother's intention to apply to discharge the care order and resume the care of MJ despite having been in telephone contact with the mother almost fortnightly. As a consequence, occasions of contact between the mother and MJ in May, July and August 2006 had been "strained and difficult from the adults' perspectives".

11. The recorder found as a fact that in reality the mother's true feelings had not changed, and that she had never truly accepted the contingency plan for adoption, always believing and hoping that SJ would only be a caretaker carer. The recorder's assessment of the mother was not unsympathetic, and was in the following terms: -

"16. The mother has made remarkable progress in conquering her addictions and turning her life around. The testimonials in the papers and her own presentation at court are a credit to her. She is a far cry from the mother in the papers who gave birth to MJ. Her acceptance at the end of her evidence that MJ's interests and welfare dictated that he should remain with SJ was a courageous and selfless act.

17. However, I am satisfied that (the mother) is both a highly intelligent and highly impulsive woman who displayed little insight in her evidence until the very end of the consequences of removal of MJ from SJ's care. She has paid lip service to cooperating with the local authority, and I have no doubt in previous proceedings felt justified on the basis of a damage limitation exercise of keeping the local authority and other professionals in the care proceedings in the dark about the extent of her drug addiction, alcohol being perceived by the professionals as her principal problem. It was clear in her evidence that this mother sees herself very much as a victim, and much of her evidence focused on her own feelings of rejection and isolation from her family. It is perhaps not surprising that much of her evidence was so self-focused, ass she had been in fairly intensive therapy of one kind or another since embarking on her recovery in 2005.

18. To her credit, in evidence she accepted that she was in early recovery, and on being asked about the consequences of change and removal of MJ asset out in Dr. Wenban-Smith's report…. appeared to reflect and reconsider her decision on the discharge application. Her earlier changes of position have, however, been at some considerable cost and have damaged the relationship between her and SJ, which was of such critical importance in any ongoing contact with MJ. It has led to feelings of great insecurity and anxiety, and a belief that (the mother) will try and undermine MJ's placement. This view and impression has been reinforced by the mother's behaviour in contact after 2005. The comments in Dr. Wenban-Smith's report are of concern, and it is not in MJ's interests for there to be competition for his loyalties."

12. The recorder's assessment of MJ was in the following terms: -

Turning to MJ, currently he is a vulnerable child, small for his age, and despite his many changes of carer, had developed a strong and secure attachment to SJ, whose parenting skills are obviously of a high calibre. Any disruption of that attachment would have a highly detrimental effect upon him, and against the background here the mother's application to discharge the care order was bound to fail.

13. The recorder thus reached the point at which her decision had to be made. She summarised the statutory provisions relating to special guardianship orders in clear terms, and used a neat phrase to describe the parental responsibility exercised by a special guardian. She says:
The parental responsibility vested in the birth mother is not, however, extinguished. But the imperative to exercise parental responsibility in partnership is not imposed on the special guardian.

14. Unfortunately, later in the same paragraph, she makes a slip, when she says: -

A special guardianship order can be varied or discharged, and in that sense it is not permanent, but a parent must obtain the permission of the court to bring such an application and a significant change of circumstances is required. However, a parent may apply for section 8 orders without leave, but the mother here proposes that the court should impose a timeless restriction on the making of such applications pursuant to section 91(14) of the 1989 Act.

15. As this court points out in paragraphs 62 to 68 of its judgment in Re S permission is required to make an application for a residence order: - see section 10(7A) of the 1989 Act (set out at paragraph 63 of this court's judgment in Re S). The recorder's statement is, accordingly, too broad. We do not, however, think that either this slip or the errors of emphasis which we identify below in paragraphs 17 and 19 of this judgment vitiate what is otherwise a clear and compelling judgment.

16. The recorder notes that both the local authority and the guardian supported the application for MJ to be adopted by SJ, and accurately summarises the effect of an adoption order. She then refers to the two decisions of A local authority v Y, Z and others [2006] 2 FLR 41, and S and B v Newport City Council (unreported) which this court has discussed in paragraphs 53 to 61 of its judgment in Re S. The recorder then says: -

"I have approached the discretionary exercise here on the basis that as a general rule in family placement special guardianship is the preferred option unless there are cogent reasons to the contrary. Special guardianship has many of the advantages of adoption, save that it does not give absolute security and the closing of the door on the mother's parental responsibility. It also has the advantage of not skewing family relationships. An adoption order would skew family relationships and would make here MJ's aunt his mother and his mother his aunt. That is not an insignificant consideration. Notwithstanding those factors, the guardian, the local authority and the jointly instructed expert Dr Wenban-Smith, all maintain that adoption is the placement option which most accords with MJ's welfare."

17. With respect to the recorder, we think her formulation in the first sentence of this paragraph puts the matter too strongly. Whilst special guardianship orders may well have been designed to encompass, and in many cases are suitable for, long term familial placements, we do not think it helpful to approach any given case on the basis that one option is "the preferred option" unless there are cogent reasons against it. The proper formulation for the approach is, we think, that stated by this court in paragraphs 47 to 49 of the judgment in Re S. Each case, as the recorder recognised, depends on the order which in all the circumstances of the case best meets the welfare needs of the child or children concerned. The recorder in due course appropriately applied this test. We do not think, however, that it was either appropriate or necessary for her to set up what would be in danger of becoming a presumption which then had to be rebutted. We also think, with respect to the recorder, that she overstates the "skewing" argument on the facts of this case.

18. In paragraph 24 of her judgment, the recorder directed herself in the following terms: -

"The paramountcy principle of MJ's welfare governs the applications before me, and I must remind myself that it is incumbent on the court to take the least interventionist option and ensure that the ultimate order is a proportionate response to MJ's needs now and in the future. In considering the central question of which order, special guardianship or adoption, best meets MJ's welfare with regard to his upbringing and throughout his life, I have had regard to the checklist factors in both the 2003 Act and the 1989 Act within the context of the range of powers and alternative options for permanency available to the court, together with the article 8 principle and the no order principle."

19. Again, with respect to the recorder, we think it goes too far to say that it is "incumbent" on the court to adopt "the least interventionist option". It is true that section 1(5) of the 1989 Act (the terms of which we have set out in paragraph 26 of the judgment in Re S) requires the court to make an order under the Act only if it considers that doing so would be better for the child than making no order at all. However, in the instant case, an order is manifestly necessary. Indeed, MJ is already subject to a care order. The recorder was right to consider whether the order was a "proportionate" response to the child's needs. In that context, it may be material for the court to be required to consider which order is less "interventionist". However, in so far as any such consideration is allowed to derogate from the welfare principle, it is plainly unacceptable. The danger of the recorder's formulation is that because a special guardianship order is less "interventionist" than an adoption order, that is the order which the court will feel constrained to make. That would be wrong as a matter of law, because it would be a clear derogation from the paramountcy of the welfare principle. It is also not the decision which the recorder ultimately reached.

20. The recorder's judgment continues: -

"25. I have considered the least interventionist option first of special guardianship coupled with a section 91(14) limitless embargo on further applications. I had to remind myself that MJ is a vulnerable child owing to his small stature, his emotional history of inadequate parenting and many changes of carer. He has developed a strong, secure attachment to SJ, who has committed herself to him unconditionally. The placement with SJ has meant that MJ has been embraced by his wider maternal family and his position within that family is a secure one. The paradox in this case is that neither special guardianship nor adoption would result in the loss of MJ's identity in the wider maternal family context. Any change in his current circumstances would, I am satisfied, have a highly detrimental effect on him.

26. Many of MJ's needs are met by special guardianship and a section 91(14) order, but the fact remains that those orders do not give total security or extinguish permanently the parental responsibility of (the mother). It is not a final closing of the door on (the mother). The history here of the change of heart of the mother, her failure to separate the needs of MJ from her own, together with her distorted thinking about her family and other matters, and her perception of herself as a victim cannot be wiped out by the eleventh hour change of position at the conclusion of her evidence. Her conduct during the observed contact with both Dr (sic) Wenban-Smith and the guardian illustrates her true feelings and desire to reclaim MJ only too well."

21. Having recorded that SJ had throughout consistently sought adoption, and had wanted to give MJ the security of adoption, the recorder asked herself what was clearly the crucial question in the case: -

"30. The question is how important in the context of MJ's welfare is the additional element of certainty and clarity for all provided by adoption? Against the history here and the true nature of the mother's feelings of wishing to claim MJ, I have concluded that no lesser order than adoption would meet MJ's welfare, and adoption by SJ is a proportionate order in the particular circumstances of this unusual case."

22. The recorder then dispensed with the mother's agreement applying the test contained in section 52 of the 2002 Act. If the conclusion she expressed in paragraph 30 of her judgment is correct (or incapable of being said to be plainly wrong) her dispensation with the mother's agreement to adoption applying the welfare test in section 1 of the 2002 Act must, in our judgment, and on the facts of this case, follow.

23. The recorder correctly had no difficulty of the position of MJ's father, who did not have parental responsibility and had taken no part in the proceedings.

24. The recorder dealt, finally, with the question of post adoption contact. She reached the conclusion that there was a "considerable risk that direct contact of the sort recently experienced post December 2005 will undermine the stability of MJ's placement with SJ". As a consequence, the recorder said: -

"I have therefore concluded that it is not in MJ's interests for there to be contact with (the mother) as things currently stand, and that any contact should in the future be at the discretion of SJ. Once the spotlight of this litigation is behind this family, it will be up to SJ to make any arrangements for contact during MJ's minority which meet his best interests. "

The professional evidence
25. As the recorder had plainly relied on the professional evidence in the case, we asked to see the reports of Dr Jamil, Dr. Wenban-Smith and the independent social worker. We do not think it necessary to set out their evidence. It suffices, for present purposes, that it supports the decision reached by the recorder.

The argument for the appellant in this court
26. For the appellant, Miss Abigail Bond faced an uphill task. This was mainly, of course, because the recorder had reached a carefully reasoned discretionary decision based on her assessment of MJ's welfare, which in turn had been informed by her assessment of the parties. In addition, however, Miss Bond's difficulties were exacerbated by the fact that those errors which we have detected in the recorder's judgment were directions which favoured the appellant.

27. Miss Bond's principal ground of appeal was that the recorder had given insufficient weight to the proposition that special guardianship orders were designed as an alternative method of securing legal permanence. Reference was made to the passages in the White Paper, which have been set out in paragraph 11 of this court's judgment in Re S. Secondly, however, she argued that the recorder had given too much weight to her own assessment of the mother, and in particular to her findings; (1) that the mother had never truly accepted the final care plan; (2) her hope that MJ would return to her care; and (3) her initial consent to the care plan for adoption and her subsequence change of stance. Furthermore, she argued, the recorder had overlooked the fact that even where the court had made an adoption order, a former parent could still at any time seek the leave of the court to make an application for contact with the child. The recorder had thus been wrong to make an adoption order. She had not ruled out the prospect of contact between MJ and his mother in the future; MJ was already securely and strongly attached to SJ; the form of order was not of immediate importance to him, and there was no indication that the placement would fail if a special guardianship order rather than an adoption order was made.

28. Miss Bond developed these points in oral argument. She placed particular reliance on the decisions at first instance in A local authority v Y, Z and others and S and B v Newport City Council, both of which, she argued, expressed a clear preference for a solution other than adoption where the child concerned was being cared for a members of the wider family. This, she submitted, was in tune with the long term concerns about adoption expressed in the Houghton report, and subsequently in the provisions of the Children Act 1975, which had introduced the concept of custodianship, and which had discouraged adoption by step-parents or other relatives.

29. Miss Bond also argued that the recorder had been right to find that MJ's relationships within his wider family would be "skewed" by an adoption order, but wrong not to give that finding proper force and effect. Her decision that the disadvantages of an adoption order were outweighed by MJ's need for "total security" represented the flawed outcome of an inappropriately exercised judicial discretion, and was plainly wrong.

30. It is impossible not to feel some sympathy for the mother in this case. But for the fatal lapse in 2005, she might well have completed her rehabilitation in time and resumed the care of MJ. But the fact of the matter is that she did not, and the recorder had to decide the case on the facts as they presented themselves to her, and in the light of the positions which the various parties had taken up. In these circumstances, we find it impossible to say, applying the principles in G v G, that the exercise of her discretion is flawed, and that her decision is plainly wrong. She was, in our view, entitled to reach the conclusion that adoption was in the best interests of MJ. Insofar as she made any errors of law, they were errors which largely favour the appellant – for example her self-direction that in the context of a family placement a special guardianship order was to be preferred unless there were cogent reasons against it.

31. In summary this was, in our judgment, a case in which the recorder was entitled to find on the facts that the child's particular welfare needs required the making of an adoption order, and that a special guardianship order would be insufficient to ensure the long term security and stability of the placement. The recorder's exercise of discretion was open to her: in so far as she made any errors of law they favoured the appellant and did not vitiate her final decision.

32. In these circumstances, we came to the clear view that the appeal must be dismissed.