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F & J (Children) [2005] EWCA Civ 349

Application by a mother for permission to appeal against orders freeing her children for adoption. Appeal refused.


Neutral Citation Number: [2005] EWCA Civ 349





Royal Courts of Justice


London, WC2

Wednesday, 9th March 2005

B E F O R E:




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(Computer-Aided Transcript of the Palantype Notes of

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MS JANE HOYAL (instructed by Messrs Raggett Tiffem & Harries) appeared on behalf of the Applicant (Mother)

MISS JOY BRERETON (instructed by Essex County Council, Law & Administration, PO Box 11, County Hall, Chelmsford, Essex CM1 1LX) appeared on behalf of the First Respondent (Local Authority)

MR R BARRETT (instructed by Messrs White Grindlay, Southend on Sea SS1 1AN) appeared on behalf of the Third Respondent (Guardian)

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(As approved by the Court)

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1. LORD JUSTICE RIX: I will ask Lord Justice Wall to give the first judgment.

2. LORD JUSTICE WALL: This is an application by a mother, whom I will call "VK", for permission to appeal against two orders made by His Honour Judge Richards sitting in the Colchester County Court on 12 October 2004 freeing her two children for adoption. The children, whom, for reasons which will I think become apparent, I propose to identify only by initials, are MK, a boy born on 28 March 2000, and CJ, a girl, born on 26 June 2001. MK is thus now rising 5 and CJ is rising 3¾.

3. On 25 November 2004, Thorpe LJ, on the papers, directed an oral hearing of the application without notice to the respondent local authority, which is the Essex County Council. That application came before Waller LJ and myself on 17 January 2005, when we adjourned it to be relisted on notice, with appeal to follow if permission to appeal was granted. We have, accordingly, had the benefit today of argument from both sides and on behalf of the children's guardian in the proceedings, who supports the position taken by the local authority and seeks to uphold the judge's order.

4. At the date the children were freed for adoption, they were both the subject of care orders which had been made by the judge on the previous day. By the time of the final hearing of the care proceedings in October 2004, the children had been in foster care for the best part of two years. The local authority's care plan, which was accepted by the judge, was, in summary, that the children should be adopted together in one placement; that contact between the children and their mother should be gradually reduced and then terminated on placement for adoption. The mother's case in the care proceedings was that the children should be rehabilitated to her care over a period of time.

5. The mother refused her agreement to the making of the freeing orders. The judge dispensed with it. She now seeks to appeal against the freeing orders, and, in particular, the judge's decision to dispense with her agreement. She does not seek to appeal against the care orders.

6. The identity and whereabouts of CJ's father are unknown. All that is known about him is that he was of Asian origin, and that he had problems with his mental health. CJ is thus a child of mixed race. MK's father, to whom the mother was and (I think) still is technically married, now lives in America. He does not, however, oppose MK's adoption.

7. Both the mother and MK's father suffer from mental ill health. Indeed, I think they met when they were both patients in hospital. The mother suffers from a borderline personality disorder. There are three psychiatric reports in the papers, all of which make the same diagnosis. The first in time is by a treating psychiatrist, Dr O'Flynn, dated 18 July 2000. The second and fullest, although not the most up to date, is by Dr Cleo Van Velsen, a forensic psychiatrist instructed by the guardian in the care proceedings. Dr Van Velsen produced a long report in 2004 which diagnosed the mother as suffering from an Emotional Unstable Personality Disorder (borderline type). Thirdly, there is a letter from Dr Dein, who has known the mother since 1995 and has looked after her for several years. His report was the most sympathetic to the mother's stance in the proceedings and identified a critical issue in them. He made the same diagnosis as the two other psychiatrists, and described it in a letter dated 17 September 2004 in the following terms:

"Her condition is characterised by enduring personality traits which include difficulties such as irritability, attention seeking, poor coping strategies and deliberate self harm including cutting and overdosing. She is also prone to brief psychotic and defensive episodes when undergoing life challenges.

She has had several admissions to hospital. These usually follow some major stresses in her life and when she comes in she is depressed with suicidal ideas. These generally settle fairly quickly.

[She] is currently going through a major life crisis on account of losing her 2 children who will be adopted. This has caused her immense stress. In fact this has resulted in her being in hospital twice in the last few months for brief periods."

However, in his summary of her condition, Dr Dein said this:

"I do feel that she has progressed somewhat in the last year overall. She is keen to continue in treatment. She is seeing a psychologist regularly for supportive psychological therapy. With appropriate and long-term psychotherapy, I would expect her mood and self-harming impulses to improve. With psychotherapy I would expect her prognosis to be fairly good. If [she] were able to address and work through her personality issues, I would expect that she could provide safe and consistent care for her two children. She is making appropriate plans for the future so that if she were to have her children back she could continue her courses with appropriate child care."

8. The result of the mother's condition, as the judge found, was, sadly, that she was unable to give any structured, consistent nurturing care to her children. It is not disputed in the proceedings by anyone that she does not love them dearly. It was also, however, not disputed by the mother in the care proceedings that there was a likelihood of significant harm if the children were returned to her care. The well-known threshold criteria under section 31(2) of the Children Act 1989 were, accordingly, agreed at a hearing which took place on 29 March 2004, without any oral evidence being called. The terms in which the threshold criteria were agreed were as follows:

"The risk of significant harm arises from the fact that [the mother] suffers from a borderline personality disorder. This means that at times [she] becomes preoccupied with her own needs and unable to meet those of her children; she is unable to manage stress and can be volatile. It also means that she is unable to provide a stable and predictable level of care for the children which would put them at risk of emotional harm."

9. However, as at March 2004, there were several unanswered questions in the case. First was whether or not the children's maternal grandfather and his wife would be in a position to care for them. They had been given permission to intervene in the proceedings to seek residence orders. Secondly, there was a possibility that MK's father and paternal grandparents might be able to care for him in America. Thirdly, there was a significant medical question mark in relation to MK. There is in MK's family a history of Huntingdon's disease. The question was whether or not MK himself was carrying the gene. The guardian wanted advice from an expert geneticist about the likelihood of MK developing the condition, and about how the issue should be handled - in particular at to the ethical and medical questions involved in informing MK about the risk that he may be carrying the gene. In addition, of course, the risk that MK was carrying the gene was information which would have to be given to any prospective adopters, and the guardian wished to know what effect this would be likely to have on the prospects of MK being adopted.

10. In the result, therefore, on 29 March 2004, the threshold criteria having been established, a number of directions were given and the care proceedings were put over to 11 October 2004. By that date, the position was much clearer. The maternal grandfather and his wife had withdrawn their application to care for the children: the father, having initially stated that he wanted to look after MK, likewise withdrew. There was a report from a consultant clinical geneticist, Dr Rosser, which is not in our papers, but to whom the guardian had spoken, and whose views she reflected in her second report. On the critical question as to whether or not the prospect or fear of Huntingdon's disease was likely to affect MK's adoption prospects, Dr Rosser was able to indicate that, in her experience, being at risk of Huntingdon's disease should not prevent MK being adopted. She concluded that on the information available it was not possible to make a definitive statement about his risk of developing the disease. She identified the risk as being within the range of 5% if MK's grandfather was truly asymptomatic, to 50% if his father's psychiatric symptoms were manifestations of the conditions being present in him.

11. As I have already indicated, the mother resisted the making of care orders. She made a long statement setting out the progress she asserted she had made in addressing the issues arising from her mental health, and she sought interim care orders with increased contact with a view to the children being rehabilitated to her care.

12. The judge considered the mother's evidence carefully, and expressed himself sympathetically in the judgment which he gave in the care proceedings. Of course this is not under appeal, but in my judgment it is important background to the freeing application. The judge came to the clear and very firm conclusion that the mother's needs were such that it would not be possible for her to achieve the necessary changes in herself within the timescale of the children's need for security and stability of placement. The judge found that what the children needed, after a long period in foster care, was a permanent placement which was able to give them a long and demonstrable period of stability. That, he held, could only be achieved by care orders based on care plans which legislated for the children to be adopted. That was also the clear view of the guardian, who had filed two, if I may say so, clear and exemplary reports in the proceedings setting out her views.

13. As I have already made clear, there is no appeal against the making of the care orders, nor, in my judgment, could there be. It is, accordingly, on that basis that the applications to free the children for adoption must be approached.

14. The applications for freeing orders followed immediately on the making of the care orders, and the judge decided them on the following day. I have some sympathy for the mother in this context. She had fought the care proceedings on the basis that she wanted the children returned to her care. It is, inevitably, very difficult for any parent, even with the benefit of good legal advice, to be able immediately to contemplate, let alone agree to, children being adopted in these circumstances. On the other hand, the decision whether or not to free needs to be made quickly, and the whole case has to be structured, and was structured, around the proceedings to free for adoption following immediately upon the care proceedings themselves. The question of consent to adoption was not, accordingly, one which was sprung unexpectedly on the mother.

15. The judge had a number of issues to consider in the freeing proceedings. The way he went about it was to consider, first, the question of the mother's contact and whether or not there should be an order for contact. In my judgment, this is correct. The question of the mother's contact clearly had a direct relevance to the issue of freeing and whether or not she should retain parental responsibility. The judge considered this issue carefully. Of course the welfare of the children in such a question is paramount, and the judge came to the clear conclusion that contact was not a primary need for the children. Their primary need, he said, was for a permanent placement and any delay in their permanent placement in order to accommodate contact would, he held, not be in their best interests. Once again, that is a position which had the powerful support of the guardian.

16. The second question which the judge addressed, again correctly in my view, was whether or not adoption would safeguard and promote the welfare of the children throughout their respective childhoods (section 6 of the 1976 Act). The judge was satisfied that it would. That conclusion, as Ms Hoyal for the mother properly concedes, must be correct, given the decision he had made the previous day that the welfare of the children required the making of care orders with care plans for adoption.

17. Thirdly, and critically, the judge had to decide whether or not the mother was unreasonably withholding her agreement. One of the matters about which he had to be satisfied in this context was whether or not it was likely that the children would indeed be placed for adoption. Section 18(3) of the 1976 Act reads as follows:

"No agreement required under subsection (1)(a) shall be dispensed with under subsection (1)(b) unless the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption."

18. This is what the judge had to say. Having dealt with the question of contact as I have already stated, he goes on to deal with section 6, again as I have stated. He then goes on to the third head in these terms:

"A greater difficulty is the issue of whether the mother is withholding agreement unreasonably. I have been helped by all the advocates in a view of the authorities, both new and old. The proper approach is this. First, I need to judge reasonableness as at the date of the hearing, that is today.

My view of today is informed by the events of yesterday, which is that this mother has only one view, namely the children should be home with her, and everyone else is making the most dreadful mistake.

I need to take into account all the circumstances of the case. I have identified the relevant ones in my judgment. There are others contained not only in the statements but as well in the very closely reasoned report of the Guardian and, as well, the written submissions of all the parties. In respect of this decision, whilst I must take account of the welfare of the children, it is not the sole or paramount consideration. It is, nevertheless, a significant factor.

The test is an objective test. Could a reasonable parent in the position of this parent withhold consent? The test is reasonableness, and nothing else. That can include, in my judgment, a parent being unreasonable where, through no fault of their own, they are unable to provide care for their children.

I am careful in carrying out this exercise not to substitute my view for that of the reasonable parent. I am well aware that there is a band of differing decisions, each of which could be reasonable in a given case. I adopt the formulation approved in Re F and described by Steyn LJ in Re C, that the test is best described in modern terms as the Judge asking himself whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the children appear sufficiently strong to justify overriding the views and interests of the objecting parent.

In this case the situation is that I have come to the view that adoption is in the children's best interests; that it is not in their best interests to continue face-to-face contact by way of an order; that they have an urgent need for permanence; that the prospect of the children being placed within twelve months is a likely prospect, given that there have been a number of adopters who may have been suitable for these children in the course of the last six or eight months; that the Local Authority recognise the urgent need to place the children and have given a commitment to the Court to provide funding for an out-of-county placement if necessary, and that the mother and the father cannot care for [MK] and [CJ]. Both parents have serious mental health issues.

Having regard to those factors, I have come to the view that the advantages of adoption do sufficiently outweigh the views of the objecting parent, and that I ought properly, in the children's best interests, to override those views. The factors I identify justify my doing so."

19. The admirably succinct grounds of appeal assert, shortly, that the judge was wrong in two ways. He was wrong (1) in finding on the evidence before him that the provisions of section 18(3) of the Adoption Act 1976 were satisfied; and (2) that the mother, who continues to enjoy regular and frequent contact with her children, was unreasonable in refusing consent to the freeing adoptions.

20. As to the first point, it is I think plain from the passage which I have just read from the judgment that the judge was not only alert to the provisions of section 18(3), but was satisfied that they had been met. He does not of course refer to section 18(3) in terms, but it is clear what he means. We also have a transcript of the evidence given to the judge in the freeing application. It is clear from the transcript that the judge was concerned both about the appropriateness of freeing orders generally, and about section 18(3) in particular. Without any criticism being made of her, the children's social worker was unable to give him the information he required, and he heard additional evidence on the subject from a senior team manager of the local authority, and then from the guardian.

21. We were informed this morning by Miss Brereton, for the local authority, that they have been unable to find adoptive parents within Essex and that the search for suitable prospective adopters has, accordingly, been widened in line with the undertakings given to the judge. The children are on the national register, and their particulars will shortly be sent out in the national monthly publication "Be my parent". The local authority remains reasonably confident that the children will be placed within the 12-month period allowed by the freeing order.

22. On the first point, therefore, it seems to me that the judge was not only alive to section 18(3), but was fully entitled to accept the evidence put forward by the local authority, particularly in the light of their recognition that permanent placement for the children was urgent, and the commitment to go nationwide if adopters could not be found in county within three months. In my judgment, therefore, the first point is effectively unarguable and fails.

23. Ms Hoyal's second point is more substantial. She advances a number of reasons why the judge should not have held her client to be unreasonable in refusing her agreement to the children being freed. She points out that no prospective adopters have been identified. This was a mother who cared deeply for her children. Under the freeing order she lost her parental responsibility. It was not, Ms Hoyal argued, unreasonable for her to object in these circumstances, since she wished actively to be involved in the process of selection and approval of prospective adopters, and to be satisfied that an appropriate placement had indeed been chosen for her children. Ms Hoyal submitted that if the mother was so satisfied, she might well then give her consent to adoption. Removal of parental responsibility effectively disempowered her. She wanted to know who the family caring for her children was before she consented - and, to take the argument in a circle, there was at present no family on the horizon.

24. In her first skeleton argument, Ms Hoyal also argued that the mother considered that it was in the interests of the children to have both direct and indirect contact with her children post-placement, given their respective ages, the attachment which they had to her and the need to foster a sense of personal identity in both children. Freeing, she submitted, deprived the mother of the opportunity to achieve that objective.

25. Other points advanced by Ms Hoyal in the skeleton argument were the fact that the children would be hard to place, that they had been having regular visiting contact with their mother on a weekly basis, that they had a significant attachment to her, having lived with her up until about September 2002. She was, moreover, the only parent both children had resided with. Apart from her affection for them, the extinction of her parental responsibility left the children in the well-known section 18 limbo, or might well do so if they were not placed within the 12-month period. There was, Ms Hoyal submitted, little advantage to the children in the loss of their mother's parental responsibility and the severance of the legal relationship, particularly if no significant adoptive placement arose.

26. Ms Hoyal also pointed to the difficulties which would lie in the mother's way if the children were not placed within the 12 months. She would have to apply to the court to regain her parental responsibility by the discharge of the freeing orders and that was, Ms Hoyal submitted, a potentially burdensome and disruptive litigation process and one which was in the circumstances unnecessary.

27. Finally, on this head Ms Hoyal submitted that the care plans were inadequate in failing to give details of any contingencies in the event that no suitable placement had been identified. The guardian had been wrong to argue that were the children freed that factor might add slightly to the pool of adopters available to them, without balancing that concept against the disadvantage to the children of the mother losing parental responsibility prematurely, and that the orders freeing the children for adoption were disproportionate in the terms of Article 8(1) of the European Convention on Human Rights.

28. In a supplemental skeleton argument, Ms Hoyal submitted that the test which the judge had applied in dispensing with the mother's agreement and based on Re C had unwittingly misled him because the phrase "applying the current values of our society" required him to have regard to the fact that freeing orders had been prospectively abolished by the Adoption and Children Act 2002, under which parental responsibility could only be extinguished by the making of an adoption order or voluntarily. These reforms, Ms Hoyal argued, ended the "legal limbo" into which children freed for adoption but not actually adopted fell. She submitted that the judge's decision fell to be considered in the light of these provisions and Article 8, as I have already indicated.

29. Dealing with the argument under the 2002 Act first, a number of observations can, I think, be made. The first is, of course, that this argument was not addressed to the judge, who was hearing an application under the 1976 Act. He cannot, therefore, in my view be criticised for not considering it. Nor does Ms Hoyal so argue. Secondly, the question for the judge, in my view, was whether or not the mother was acting unreasonably within section 16(2) of the 1976 Act. The approach identified by Steyn and Hoffmann LJJ is, in my judgment, a very helpful way of identifying and defining the concept of unreasonableness or reasonableness in the context of a given case. Thirdly, it seems to me that whilst the 2002 Act will, when implemented, alter the adoption process and allow parents to retain parental responsibility up until the moment of adoption, I would not, speaking for myself, take the view that the Act "alters the current values of our society" in relation to the adoption of children. There will remain in 2004 and beyond children whose needs require that they be adopted and that they be taken from their parents' care. MK and CJ are such children. Whether or not it is reasonable for their mother to agree to them being freed for adoption must, it seems to me, be seen as a decision relating to all the circumstances of their particular case, their mother's particular circumstances, including of course their welfare needs.

30. I therefore for myself do not think that the prospective implementation of the 2002 Act required the judge to take a different stance in relation to the question of the mother's refusal of agreement. The question for him remained: was she withholding her agreement unreasonably in all the circumstances of the case?

31. In answering this latter question, an important consideration, in my judgment, is indeed the mother's attitude to prospective adopters and the question of future contact with the children. It is plain that the mother's position had fluctuated during the course of the proceedings. We were taken by Mr Barrett, for the guardian, to a passage in the judge's judgment in which he cited from the guardian's second report. The context of the quotation was that in the care proceedings, the mother had of course argued that the children be returned to her care. The judge says this:

"During her evidence later in the day following my decision in the care proceedings, she nevertheless said that she would support the children in any placement. The evidence ... was telling, because it goes directly to the issue of contact that Mrs Harries has raised as the reason why the mother is not being unreasonable in withholding her consent. [The mother] said that if she saw the children regularly, she would want to work alongside the adopters. What she said was this:

'I want to see that they love them like I do.'

She said that she could promote the children being with her carers. She said that she did not want to be unable to see them. She said she had missed [CJ's] first steps, and missed [MK's] first day at school.

That evidence, in my judgment, reflected the view that had been expressed by ... the Guardian in her report. Namely, the mother would not accept, and does not accept that her mental health difficulties have, and continue to prevent her caring for the children sufficiently well. The Guardian has identified contact as a means to an end, namely the mother monitoring the adopters. She put it like this in her report. I hope I will be forgiven for repeating it. It is at paragraph 8.7. The whole paragraph bears reading, but I will not burden this judgment with all of it. What the Guardian says is:

'Mother perceives continued face-to-face contact as a means of monitoring her children's wellbeing. Whilst this can be seen as understandable in any birth parent who has not chosen to have a child adopted, this attitude is likely to compromise mother's ability to ensure any contact is not experienced as undermining to the relationship between the children and their new parents, especially in the context of a personality disorder.'

The Guardian says:

'I believe that as well as potential advantage to the children, there is also a risk of any continued face-to-face contact having a disruptive influence on an adoptive placement."

32. Mr Barrett pointed out that the reason the paternal grandfather and his wife had withdrawn their application to care for the children was their apprehension at their ability to cope with the mother's behaviour. He showed us other passages in the guardian's report which demonstrated the volatility of her attitude over very short periods of time.

33. On 25th August 2004 the guardian had seen the mother. She had discussed with the mother how the latter envisaged continued face-to-face contact with the children post-placement for adoption and how it would promote their interests. The mother initially proposed that she should spend each of the children's birthdays and Christmas with them. She could acknowledge that it might be important for the children to be able to spend these special times with their adoptive parents and family. She was able to move to suggesting that the children should spend a "special" day with her, so that the children would know that they would "get to see mummy". She considered that she would be able to convey to the children and their adoptive parents that she supported them living with their new family. She had some difficulty in accepting that the children's adoptive parents would be in control of arrangements for any contact; she did, however, suggest that arrangements could be made on a trial basis. There were then other discussions between the guardian and the mother.

34. However, when the mother then saw the guardian shortly on 14th September 2004, some three weeks later, the mother presented her view that the children should be returned to her care. She stated that she did not trust the local authority to make the best decisions for her children, because of her own experience and because of the care her children had received in their previous placement.

35. I have no doubt at all that the mother's volatility as demonstrated by her attitudes in the care proceedings is a function of her disorder, but when it comes to assessing the needs of the children within the framework of their mother's agreement to them being freed, it seems to me that the judge was fully entitled to conclude, as he did, that the mother's involvement in the process of the search for prospective adopters and the placement of the children was likely to be disruptive, not constructive, and that given the difficulties of placing the children, such conduct was manifestly likely to narrow the pool; whereas a freeing order would widen the pool of prospective adopters, something which had to be in the interests of the children. Speaking for myself, like the judge I have no confidence that the mother would consent to an adoption, and I also agree with the point which Miss Brereton made that the mother would undoubtedly find further adoption proceedings stressful and difficult, and that they may well result in further deterioration to her mental health.

36. In these circumstances, I find myself in full agreement with the submissions made by Miss Brereton and the guardian that the judge was entitled in all the circumstances of this case to find that the mother was unreasonably withholding her agreement, and that he did so by a careful examination of all the relevant material.

37. Although I think I have covered the ground, the matters are succinctly summarised by Miss Brereton in her skeleton argument.

38. Finally, in terms of the argument addressed by Ms Hoyal under Article 8 of the Convention, the interference with the mother's rights to respect for her private and family life, is, in my judgment, on the facts of this case both lawful and proportionate. The amended care plan provides for ongoing contact gradually reducing, and is now at the reduced level of once a month. Were the local authority to resile from that contact, the mother undoubtedly, in my view, would have the right to apply for permission to make an application for contact. If there were no good reason for the local authority's change of position, that application would stand a reasonable prospect of success. Equally, if the children have not been placed within 12 months, the mother has the right to apply to revoke the freeing order and regain parental responsibility. In my judgment, on the facts of this case, these are sufficient safeguards. The judge's view, which I share, is that the exercise of parental responsibility by the mother in the period leading up to placement would, despite her love for the children, be unlikely to be constructive and would be far more likely to work against their interests than for them. The removal of parental responsibility by the making of freeing orders was, accordingly, justified for the reasons which the judge gave. I cannot fault his approach, which seems to me to have been both sympathetic and sensitive.

39. Accordingly, despite Ms Hoyal's careful arguments, I have come to the conclusion that permission to appeal in this case should be refused, and I would so order.


41. LORD JUSTICE RIX: I also agree.

ORDER: Application for permission to appeal refused; permission to appeal to the House of Lords in relation to the dispensation of consent refused; detailed assessment of the mother's Community Legal Services Funding costs.

(Order not part of approved judgment)