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Children Public Law Update (September 2015)

John Tughan QC of 4 Paper Buildings reviews recent judgments of significance to child care lawyers.

John Tughan QC, 4 Paper Buildings

In this update I will consider the following:

• recent authorities on the issue of whether to make adoption orders when there is a natural family member available and the child is placed for adoption;

• the President's recent guidance on the adoption of children who are foreign nationals but habitually resident in the UK;

•  the President's recent decision on the provision of legal aid where the care proceedings had been re-opened;

• guidance on the revocation of adoption orders; and

• a case on who should pay for the translation of documents.

Adoption and natural family members
There has been a series of cases in which the courts have had to deal with the difficult balance between the natural family caring for a child who has already been placed for adoption.  The series started with the decision of Holman J in A&B v Rotherham [2014] EWFC 47 (5th December 2014)  in which an aunt succeeded in opposing an adoption order for a child aged 20 months.  The child had been placed with the adopters since the age of 7 months.  Holman J described the decision as the most harrowing in his time on the bench.  Permission to appeal that decision was refused by the Court of Appeal.

Then came the case of  M'P-P (Children) [2015] EWCA Civ 584 (June 2015) which was an appeal on similar issues.  The judge at first instance had found in favour of the aunt over the adopter.  One of the two children had been placed with the adopter since one day of age.  The Court of Appeal overturned the decision on narrow, judgment specific, grounds without giving guidance beyond what is already known.  That case is awaiting re-hearing.

More recently Russell J had to grapple with similar issues in Re W (Adoption Application: Reunification with Family of Origin) [2015] EWHC 2039.  In this case the Court of Appeal had allowed the father's appeal out of time against the making of the care and placement orders (Re H [2015] EWCA Civ 583).  The child was 2 ½ and had been placed with adopters since the age of 16 months.  The three older siblings remained with the father.  The child was settled and happy with the adopters.

Set out in the factual background to the decision is the conclusion of the court that the care and placement proceedings were finely balanced and the inference that if the legal principles (Re B [2013] UKSC 33 etc) been properly applied then W would have been placed at home with support.  The evidence was that the father provided "very good care" to the older siblings.  The judge was very critical of the social work evidence and described the efforts at case-building as "reprehensible".  There was also strident criticism of the approach of the Guardian and the absence of a child-centred analysis until mid-way through the hearing.  Importantly, the Guardian failed to put before the court the views and position of the older siblings, whose rights were clearly engaged.

The Article 8 convention rights of the father, mother, siblings and adopters were engaged.

The fact that the threshold facts within the original proceedings were at the lower end of the scale weighed with the court in deciding the issue before it.

Russell J described the legal test in this way:

"The  result of the Supreme Court and subsequent decisions of the Court of Appeal  is that that this court can only make an adoption order if it is necessary to do so and it is not enough that it would be better for this child to be adopted than to live with her original or birth family as Lord Wilson said in  Re B:

34. …Yet, while in every such case the trial judge should … consider the proportionality of adoption to the identified risks, he is likely to find that domestic law runs broadly in parallel with the demands of Art 8. Thus domestic law makes clear that:

a)  it is not enough that it would be better for the child to be adopted than to live with his natural family (Re S-B (Children) (Care Proceedings: Standard of Proof) [2009] UKSC 17, [2010] 1 AC 678, [2010] 2 WLR 238, [2010] 1 FLR 1161, para [7]); and

b)  a parent's consent to the making of an adoption order can be dispensed with only if the child's welfare so requires (s 52(1)(b) of the Adoption and Children Act 2002)

The same thread, therefore, runs through both domestic law and European Convention law, namely that the interests of the child must render it necessary to make an adoption order. The word 'requires' in s 52(1)(b) 'was plainly chosen as best conveying ... the essence of the Strasbourg jurisprudence' (Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para [125])."

It may not be possible to draw conclusions from these three cases.  The correct legal conclusion may only be that each case is fact-specific and that the legal principles to be applied are now settled.  However, on the two decided cases the natural family successfully retrieved the child from an adoptive placement and issues such as the fact that the child had settled in that placement or the difficulty in moving the child were overcome without too much difficulty.  However often we are told that the law has only been re-stated recently, those outcomes constitute a sea change in approach.

Adoption of children who are foreign nationals but habitually resident in the UK

CB (A Child) [2015] EWCA Civ 888 was an appeal from a decision of Moylan J.  The child was the subject of care and placement orders and had been placed for adoption.  The litigation history was extensive with the mother making a number of different applications and appeals in order to attempt to overturn the original orders.  Moylan J dealt with her further application for contact together with an application under Article 15 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, commonly known in this country as BIIR or BIIA, for jurisdiction to be transferred to Latvia; and an application under section 47(5) of the 2002 Act for permission to oppose the making of an adoption order.

The Ambassador of Latvia and the consul attended the hearing.  The Latvian central authority was present.  CB and her mother are citizens of the Republic of Latvia, though it was common ground that CB, who was born in this country, has at all material times been habitually resident here. CB's father had no involvement in her life.

Moylan J dismissed the applications of the mother.  The suggestion of an Article 15 transfer to Latvia (raised by the Latvian central authority) could not stand as the article did not apply to decisions on adoption or matters preparatory to adoption.  In deciding whether to grant leave to oppose the adoption Moylan J decided that there had not been a change of circumstances.  The mother had sought to argue that the involvement of the Latvian authorities (and their willingness to accept case responsibility) was part of the change of circumstances.

In giving judgment in the Court of Appeal (and dismissing the appeal) Munby P described one aspect of what is being said by the Latvian authorities as particularly significant.  That related to their submission that CB's needs could be assessed and her future determined, in the light of such assessment, by the appropriate Latvian authorities.  The President agreed with Moylan J's analysis and concluded that an application under section 47(5) of the 2002 Act is a "measure preparatory to adoption" within the meaning of Article 1(3)(b) of BIIA.

The President then went on to refer to the Vienna convention and his decision in Re E (A Child) (Care Proceedings) [2014] EWHC 6, [2014] 1 WLR 2670

"46. In cases involving foreign nationals there must be transparency and openness as between the English family courts and the consular and other authorities of the relevant foreign state. This is vitally important, both as a matter of principle and, not least, in order to maintain the confidence of foreign nationals and foreign states in our family justice system. To seek to shelter in this context behind our normal practice of sitting in private and treating section 12 of the Administration of Justice Act 1960 as limiting the permissible flow of information to outsiders, is not merely unprincipled; it is likely to be counter-productive and, potentially, extremely damaging. If anyone thinks this an unduly radical approach, they might pause to think how we would react if roles were reversed and the boot was on the other foot.

47  Given this, it is highly desirable, and from now on good practice will require, that in any care or other public law case: (1) The court should not in general impose or permit any obstacle to free communication and access between a party who is a foreign national and the consular authorities of the relevant foreign state … (2) Whenever the court is sitting in private it should normally accede to any request, whether from the foreign national or from the consular authorities of the relevant foreign state, for (a) permission for an accredited consular official to be present at the hearing as an observer in a non-participatory capacity; and/or (b) permission for an accredited consular official to obtain a transcript of the hearing, a copy of the order and copies of other relevant documents. (3) Whenever a party, whether an adult or the child, who is a foreign national … is represented in the proceedings by a guardian, guardian ad litem or litigation friend … the court should ascertain whether that fact has been brought to the attention of the relevant consular officials and, if it has not, the court should normally do so itself without delay."

The President accepted the local authority's apology and explanation for their failure to notify the Latvian authorities of the care proceedings prior to the decision in Re E on the basis that such duties were not widely known at the time.

The President then went on to re-visit issues of the inter-relationship of the UK's approach to adoption with that of other countries.  He affirmed Re E and went on to say:

"But there are two important points to be borne in mind. There is, first, the point I made in Re R (A Child) [2014] EWCA Civ 1625, para 45:

'The fact that the law in this country permits adoption in circumstances where it would not be permitted in many European countries is neither here nor there … The Adoption and Children Act 2002 permits, in the circumstances there specified, what can conveniently be referred to as non-consensual adoption. And so long as that remains the law as laid down by Parliament, local authorities and courts, like everyone else, must loyally follow and apply it. Parliamentary democracy, indeed the very rule of law itself, demands no less.'

83. The second point is that, whatever the concerns that are expressed elsewhere in Europe, there can be no suggestion that, in this regard, the domestic law of England and Wales is incompatible with the United Kingdom's international obligations or, specifically, with its obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms. There is nothing in the Strasbourg jurisprudence to suggest that our domestic law is, in this regard, incompatible with the Convention. For example, there is nothing in the various non-consensual adoption cases in which a challenge has been mounted, to suggest that our system is, as such, Convention non-compliant.   

84. The lessons of this and other cases are clear but bear repetition. We must be understanding of the concerns about our processes voiced by our European colleagues. We must do everything in our power to ensure that our processes are not subject to justifiable criticisms. This means ensuring that:

i)  local authorities and the courts must be appropriately pro-active in bringing to the attention of the relevant consular authorities at the earliest possible opportunity the fact that care proceedings involving foreign nationals are on foot or in contemplation;

ii)  the court must, whether or not any of the parties have raised the point, consider at the outset of the proceedings whether the case is one for a transfer in accordance with Article 15 of BIIA: see generally In re E (A Child) (Care Proceedings: European Dimension) Practice Note [2014] EWHC 6 (Fam), [2014] 1 WLR 2670, [2014] 2 FLR 151, paras 31, 35-36;

iii)  if there is no transfer in accordance with Article 15, the court, if the local authority's plan is for adoption, must rigorously apply the principle that adoption is 'the last resort' and only permissible 'if nothing else will do' and in doing so must make sure that its process is appropriately rigorous: see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and Re R (A Child) [2014] EWCA Civ 1625;

iv)  in particular, the court must adopt, and ensure that guardians adopt, an appropriately rigorous approach to the consideration of the 'welfare checklist' in section 1(4) of the 2002 Act, in particular to those parts of the checklist which focus attention, explicitly or implicitly, on the child's national, cultural, linguistic, ethnic and religious background and which, in the context of such factors, demand consideration of the likely effect on the child throughout her life of having ceased to be a member of her original family."

Availability of legal aid where care proceedings have been re-opened

In M (A Child) [2015] EWFC 71 the mother had applied for the discharge of a special guardianship order (a private law application) in order to argue that the factual aspect of the care proceedings should be re-opened.  The factual issues were re-opened on the basis that the process had been unfair because the mother suffered from a learning difficulty that significantly impacted her ability to engage in that process.  The original allegations related to non-accidental injury (including fracture) to a child.  The Legal Aid Agency took the view that the automatic legal aid (non-means or merits tested) could not be granted as the application (for SGO discharge) did not fall within the relevant categories within the terms of the regulations.  The President held that the effect of the application was to re-open fully the care proceedings and that this was, therefore, a case in which automatic legal aid should be granted.  He so declared.

The Legal Aid Agency has accepted that decision and a legal aid certificate has now been granted to the mother.

Revocation of adoption orders
In PK v Mr & Mrs K [2015] EWHC 2316 (Fam) Pauffley J was dealing with an application for the revocation of an adoption order.  The applicant was the (now) 14 year old adopted child.  The applicant sought the revocation as she had been re-united with her natural family and abused within the extended adoptive family.  The application was granted and Pauffley J set out the legal framework for such (rare) applications.  That framework is to be found in Re Webster v. Norfolk County Council and the Children (by their children's guardian) [2009] EWCA Civ 59 and Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] 2 FLR 1609.

The court followed the reasoning of Bodey J in Re W:

"He observed it was common ground that "the only possible vehicle for revocation would be the inherent jurisdiction of the High Court … but only in exceptional circumstances." Bodey J cited a passage from Re B (supra) where Swinton Thomas LJ said this – "To allow considerations such as those put forward in this case to invalidate an otherwise properly made Adoption Order would in my view undermine the whole basis on which Adoption Orders are made, namely that they are final and for life, as regards the adopters, the natural parents and the child. In my judgment, (Counsel) is right when he submits that it will gravely damage the lifelong commitment of adopters to their adoptive children if there is the possibility of the child, or indeed the parents, subsequently challenging the validity of the Order."

5. Bodey J also referred to the judgment of Wall LJ (as he then was) in Re Webster v Norfolk County Council) and to the following extract – "Adoption is a statutory process; the law relating to it is very clear. The scope for the exercise of judicial discretion is severely curtailed. Once Orders for Adoption have been lawfully and properly made, it is only in highly exceptional and very particular circumstances that the court will permit them to be set aside."

Payment for translation of documents

In R (Translation of Documents in Proceedings) [2015] EWFC B112 HHJ Lynn Roberts was dealing with the issue of which party should pay for the translation of documents within the context of publicly funded parties.  The decision of the court was that the costs should not be equally shared and that the party who sought translation should meet the costs.