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The Court of Appeal and the Birth Family: Making Certain Justice is Seen to be Done

David Bedingfield, barrister of 4 Paper Buildings, considers two recent Court of Appeal judgments which had cause to consider the significance of a child's family ties.

David Bedingfield, barrister, 4 Paper Buildings

David Bedingfield, barrister, 4 Paper Buildings

The Court of Appeal continues to grapple with issues central to the Children Act 1989. What is the significance of a child's birth ties? Does Article 8 of the Children Act 1989 create a legal presumption that a child's best interests require placement with a birth parent? Does the existence of other family members putting themselves forward for assessment qualify as a "change of circumstances" that requires a court to grant a parent permission to oppose an adoption order, even if those family members had been negatively assessed as possible carers for other children in the family?

Re E-R (A Child) [2015] EWCA Civ 405 
The issue regarding any legal "presumption" attaching to birth parents came before Lady Justice King and Lord Justice Laws in the matter of Re E-R (A Child) [2015] EWCA Civ 405, a judgment handed down on 24 April 2015.  The trial judge (HHJ Vincent, sitting in Truro) had made a child arrangements order under s.8 of the Children Act 1989 in favour of a child's father. The child was born in July, 2009; the parents separated in March, 2011.  The child's mother had been diagnosed with breast cancer in 2012.  The parties briefly reconciled after the diagnosis, but soon thereafter separated permanently. There was considerable acrimony after the separation. The father had lost contact with his child after he had left the Cornwall area. He began a new relationship, and he had had no contact with his daughter from 2012 up until the court ordered contact in November, 2014.

The mother and child, during the last stages of mother's terminal illness, had moved to live with two friends of the mother. These friends offered care and support for both mother and child. The mother died in April, 2015, after the hearing in front of the trial judge had concluded on 30 January 2015 but before this decision by the Court of Appeal. Mother in her will made clear she wanted these friends to care for the child, and purported in her will to appoint them as the child's guardians under s.5 of the Children Act 1989.

The father sought a child arrangements order in his favour. A social worker conducted both a special guardianship report and an assessment of the father. The social worker was especially concerned that the child might not have contact with her father if placed with the wife's friends. He pointed out the strained relationship between the friends and the father, and noted the continuing hostility during the proceedings. 

The trial judge sought to apply the welfare checklist to the case. He then said this:

"There is a broad natural parent presumption in existence under our law and indeed common sense would cause one to recognise that a young child will all other things being equal be best off in the primary care of a parent. Part of the conundrum in this case is working out if all other things are equal."

The trial judge had noted that the child's placement for the last 8 months had been with the mother's friends, and that they had offered her very good care. But the judge concluded that "[t]he argument in favour of the status quo therefore is not strong enough to displace the proposition that the father as a capable parent should assume T's care upon her mother's death."

Lady Justice King had no difficulty in finding that the trial judge's approach was wrong in law. The House of Lords in 2006 had expressly held that the paramount consideration for judges under the Act is the best interest of the subject child. There is no legal presumption in favour of a birth parent.1 That does not mean, as Baroness Hale pointed out in Re G [2006] UKHL 43, at paragraphs 30 and 31, that the fact of parentage is irrelevant. Of course it is relevant. But as Lord Hope noted in Re B (A Child) [2009] UKSC 5, [2010] 1 FLR 551,

". . . the consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the child's best interests. This is the paramount consideration. It is only a contributor to the child's welfare that parenthood assume any significance. In common with all other factors beating on what is in the best interests of the child, it must be examined for its potential to fulfil that aim."

King LJ then noted that in this case, the "status quo" is ". . . that place where the child had been living and settled, in a familiar environment, cared for by people upon whom she can rely and who are currently offering her the love, security and consistency she needs to enable her to cope with the loss of her mother."

King LJ did not address the issue of whether Article 8 of the European Convention for the Protection of Human Rights adds anything to the analysis. Arguably, the Court must consider the proportionality of placing the child outside the birth family. It may well be that proportionality adds nothing. But it is contended that at the least the court must consider whether a "right to respect for family life" means that the position of the father should be considered differently from the position of the friends.

King LJ also noted that the father appeared in person throughout the trial and the appeal.  In a case of this magnitude, King LJ and the Court believed it vitally important that the court has the advantage of legal representatives appearing in court, and pointing the court to the appropriate legal authorities. That was not done in this case. The Court of Appeal believed it important that, upon the matter being placed before the relevant Family Division Liaison Judge for the Western Circuit, consideration be given to having the child made a party and securing legal representation.

It was acknowledged by King LJ that the mother's appointment of the friends to be testamentary guardians of the children would not in any future contest between the father and carers generate a preferential position in favour of the proposed testamentary guardians. The making of the decision by the court will be governed by the welfare principle, informed by the application of the welfare checklist. The mother's preference, while not irrelevant, is certainly not conclusive. In any event, an appointment as a testamentary guardian under s.5 of the Children Act 1989 cannot take effect so long as the father is alive and has parental responsibility (see s.5(7) and (8) of the CA 1989).

King LJ also concluded that the assessment of father and of the carers was superficial and failed to give the court relevant information about the father's new relationship. Given that the decision to be made by the court would have life-altering consequences for the child, the court required better information than provided in this report. For all those reasons, the order in favour of the father was vacated, and the matter was remitted for re-hearing before a different judge.

Re W (Children) [2015] EWCA Civ 403 
Another case where a trial judge got it wrong when considering whether a family member should be considered prior to placement of a child outside the family is the case of Re W (Children) [2015] EWCA Civ 403, CA. In this case, however, the trial judge erred in failing to give appropriate weight to the possibility that the child could remain within her birth family.

The father in this case sought permission to appeal against adoption orders made in respect of two of his children. Findings had been made against both parents in care proceedings regarding the couple's five children. Long term foster care was approved for the three eldest children. The younger two were made subject to placement orders.

During the proceedings the mother gave birth to another child. A paternal aunt put herself forward as a carer for the newborn child. The local authority assessment of her was negative. Prior to the final hearing of the adoption order application, the paternal aunt made clear she should also be considered as a potential carer for the two children now subject to the placement orders.

The trial judge made the adoption orders, but gave father permission to appeal. The Court of Appeal, with Munby P writing the main judgment, set aside the adoption orders. The Court of Appeal identified several problems. The first, and perhaps most important, is that the trial judge made the adoption orders without complying with R. 14.15 of the FPR 2010. That rule requires an order setting down an adoption application for hearing to set out clearly the nature of the application to be heard and the orders to be sought.2

Munby P and the Court also held that it was wrong for the trial judge to consider the father's application for permission under s.47(5) and the adoption application at the same hearing on the same day. A President's Guidance in 2008 had specifically recommended that this not be done. See also Re B (A Child) [2013] EWCA Civ 421, CA, where McFarlane LJ criticised the practice, and Re W (A Child) (Adoption Order: leave to oppose) [2013] EWCA Civ 1177, [2014] 1 WLR 1993, at paras 30 and 31, which Munby P sets out in full in Re W.

But Munby P and the panel of the Court of Appeal also believed the trial judge should have considered whether the aunt's change of position regarding an offer to care for the two children subject to the application was a "change of circumstances."    The trial judge had a duty to consider whether the aunt's change was a sufficient change of circumstances to convince the court to grant the father permission under s.47(5) of the Adoption and Children Act 2002 to seek to oppose the making of the order. The trial court had simply failed to address the issue at all in her judgment.

Again, the case shows the importance (at least to some panels of the Court of Appeal) of making certain that all birth family members are considered and ruled out as reasonable prospects prior to the court making adoption orders. In this case, the aunt had already been negatively assessed as a potential carer for one child. She now sought to care for two. The judge hearing any adoption application must nevertheless go through in his or her judgment the reason why this change in circumstance is not sufficient to justify granting to the father permission to oppose the making of the adoption order. At the least, the trial judge must address the issue.

Given that the trial judge failed to address the issue at all, it is difficult to draw lessons from the Court of Appeal's judgment. It may well be that the Court would have approved the order, had the trial judge simply addressed the issue and given reasons for deciding that the aunt's new proposal was not a sufficient change in circumstances to justify making the father a party. It does show, however, that when considering adoption applications, courts must take care not only to see that justice is done, but to make certain that justice appears to be done.

In fact, this proposition has been a part of the law of this jurisdiction prior to the Children Act 1989's enactment. See J v C [1970] AC 668, HL, where the House of Lords held that there is no presumption in favour of a birth parent who was seeking return of a child from non-family members with whom the child had been placed some years previously.
[2] The Court of Appeal also believed the trial judge got it wrong when she attempted to make a provisional adoption order, dependent upon the child being circumcised prior to the adoption order being made. That "condition precedent" made the proposed order unlawful, the Court of Appeal held. In particular with an order that will change a child's legal status, care must be taken with regard  to the effective date of the order.