Succeeding in an opposed adoption

 
There are cases – you can see them in law reports, read about them in the newspapers and sometimes see them for yourself, when a Local Authority seeks a Placement Order with a plan to adopt a child and the Court says no. {Just looking at the Bailii reports of county court cases since 22nd April, I can find three of those}

You can also see cases where the first Court says yes, and the Court of Appeal say no, and the Placement Order and the plan of adoption is stymied. So parents can and do, successfully fight PLANS for adoption.

What about when the plan is approved and the Court makes the Placement Order that allows the child to be placed with prospective adopters?

Once the Placement Order is made, a parent can apply for leave to revoke the Placement Order – to get the child back if the application to revoke is successful.

Since the Adoption and Children Act 2002, I have not personally experienced a successful application for revocation of a placement order by a parent, nor have I ever read about one in a newspaper. Nor have I been able to find one in the law reports. I have found some cases where LEAVE was given, but not any that ultimately ended up with the child coming home.

If the child is placed with prospective adopters, and they make an application for adoption, the parent may apply for leave to oppose the adoption application. Up until Re B-S was decided last year, the only reported case where that leave had been given to a parent had been immediately appealed.

That’s because pre Re B-S, the test was that the Court should follow a “stringent approach” and that it would be only in “exceptionally rare circumstances that these applications would be granted”

[That, in practice seemed to be “exceptionally rare” in the sense that a unicorn is exceptionally rare, rather than in the sense that a Cabinet minister is sacked sense of exceptionally rare]

In Re B-S though, the Court of Appeal decided that that was not on – Parliament had set out in the Adoption and Children Act 2002 that there was a remedy allowing a parent to oppose an adoption order under s47(5) of the Act, and if that was to be a real remedy rather than a merely illusory one, there had to be cases where leave would be given. The Court of Appeal decided that the mere fact that a child was placed with adopters and would be potentially unsettled was not enough to defeat a leave to oppose application, and if the parent demonstrated some ‘solidity’ to their case, it would be right to grant them leave and let them oppose the adoption.

Since then, a higher proportion of leave to oppose applications have been successful (or successful appeals after original refusals). But have any of them actually resulted in the parent getting their child back?

Since the 2002 Act, I have not found a single law report that shows a parent successfully opposing the adoption order and getting the child back. I have seen cases that could be counted on the fingers of one hand of opposition to adoption orders that resulted in the child remaining with the prospective adopters under a different form of order.

The closest anyone had come in a reported case (up until now) was in Re W (Adoption Order :Set aside and leave to oppose) 2010 [2011] 1 FLR 2153

In which a mother had not been served with the adoption application, despite telling the social workers that she wanted to fight it, and she persuaded the Court of Appeal that it was right to set aside the adoption order But the Court of Appeal then went on to decide that she failed in her application for leave to oppose, and that there would thus be an unopposed application for adoption, which of course would succeed. That’s about as pyrrhic a victory as one can imagine.
In fact, if you want to find the answer to the question “What happens to the child if a Court refuse the adoption application?” the case that answers it is from 1960 (which is two sets of Adoption legislation ago – the answer NOW is that the Care Order comes back into force, so unless the Court discharge the care order or make the new equivalent of a Residence Order, the adoption won’t go ahead but that doesn’t automatically mean the child will come home)
This raises two big questions for me

1. Where does that leave the Court of Appeal’s statement in Re B-S that parliament intended there to be a real remedy in s47 for a parent to fight an adoption application, rather than a merely illusory one?

AND

2. How can a parent’s opposition to an adoption order be said to have solidity, if nobody has ever succeeded in opposing one?

If in twelve years, no parent has successfully fought an adoption application and got their child back, is the whole concept of contested adoption really just an illusion, and moreover, an illusion that causes further pain and suffering to a parent, anxiety to the prospective adopters and takes up Court time that we can ill afford?
Those questions are thrown into sharp focus by this High Court decision that I am finally getting around to.

Borough of Poole v W and Another 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1777.html

This judgment was delivered by Sir Mark Hedley, in the High Court in April 2014. I will say, before we begin, that if I happened to be representing a parent in the High Court, the Judge I would be praying for would have been Hedley – you cannot have a more kindly and sympathetic tribunal. It would be a dream start.

In this case, the Judge had given leave to oppose the adoption application for a child SR, and thus this is one of the rare reported contested adoption judgments.

SR was 2 ½ years old. She had been removed shortly after birth, there having been care proceedings and adoptions of her older siblings. A Care Order with a plan of adoption and Placement Order was made – the parents appealed that decision and were unsuccessful. SR was placed with prospective adopters in November 2012 and her direct contact with her parents ceased.

The adoption application was made and the parents were granted leave to oppose.

[I note in passing that the Judge refers extensively in his judgment to 2011 caselaw, but does not touch upon Re B or Re B-S – no doubt these formed a major part of his judgment to grant leave to oppose]

“Although the final legal burden on the prospective adopters remains unchanged, the parents, according to Re W have a significant evidential burden of laying solid grounds of opposition to what has already been planned and approved by the court. I mentioned at the end of the hearing that I thought, this being, I think, the first case at full trial after the bout of cases in the Court of Appeal, that it would be proper normally to provide a written judgment so that others could see how the process works out”

[There has of course been the judgment in the opposed adoption case of Re N (A Child : Adoption Order) 2014 – but in that case, the father was not seeking the return of the child but to persuade the Court to make a Special Guardianship Order instead of an adoption order https://suesspiciousminds.com/2014/05/10/special-guardianship-versus-adoption/ ]
Coming back then to the essence of this case, all parties agreed that there were probably three factual questions that the court had to ask and answer. First, would SR survive the rehabilitation process? If yes, secondly, would the parents survive the rehabilitation process? If yes, thirdly, would they produce parenting consistent with the needs of SR over the balance of her childhood? It seems to me, in a case such as this, it is always best to start by looking at things as they will appear to the child herself. All the adult analysis and debate and arcane recital of authority is wholly incomprehensible to her. The world, so far as she is concerned, looks very different. She was removed from her parents after two weeks at hospital. However, unlike the other children, she had had no adverse parental experience this being, as it were, a likelihood of harm case, rather than a harm case. From the 4th August 2011 to about the 19th November 2012 she was placed with a foster carer called Karen, to whom she clearly became securely attached over that period of time. Moreover during that time, she had what I am content to accept, was positive experience of parental contact. Her life changed dramatically on the 19th November 2012 because she had to break that secure attachment and re-form it with people who were, in effect, strangers to her. There is no doubt that she had some difficulties with that. There is no doubt they were only the kind of difficulties that anyone would have expected and there is no doubt that they were substantially overcome. As far as she is concerned, the last parental contact she had was a lifetime away and since then she has settled down and made her home and family with the prospective adopters. Her parents will perforce now be strangers to her. She has only one home and only one world and that includes, as everybody recognises it would include whatever happens to her, the extended family of those who care for her.
Looking at the change in the parents since the Placement Order had been made, these were considerable – in fact, this bit is quite remarkable – in effect their former social worker was their McKenzie Friend. That’s not something I’ve ever come across before and may never see again.
They have been assisted throughout by Mr Levers, who is a retired social worker, indeed was once social worker to this family, but that had ceased before any legal proceedings here started. He has manifestly, with his wife, been a tower of strength to the parents throughout these proceedings. He has afforded not just litigation but personal support and I am entirely satisfied that such support would continue unabated into the future, whether it is in supporting the parents in renewing their care of the child or supporting them in their grief in being deprived of the opportunity of doing that.
The changes they had made are delineated

If we come up to today’s date, everybody accepts that the parents are in a very different position indeed to the one that they were in, in July 2011 or indeed October 2012. They enrolled themselves in university courses at the Greenwich Business School at its Greenford Campus in West London. They have set up their own home in Hayes in West London, having moved up from Dorset and they have established for themselves all the appearances of a stable lifestyle in which studies are accommodated and part-time work ensures both that they have control of money and also their ability to live independently. Moreover, the mother has completed and benefitted from therapies which were designed to address the emotional dysfunction which she recognised she had. The father has clearly benefited from involvement in a domestic violence course and the very fact that he saw it through is good grounds for optimism and it has been not without its benefits to him. Both the parents are able to give an articulate and compelling account of the progress that they have made. Both parents acknowledge the need for further work if so advised, both in respect of couple counselling and in the respect of the mother for some more individual work
What then are the concerns that were raised in particular in the expert evidence about the parents? The expert evidence consisted of the clinical psychologist and an independent social worker, both of whom have provided extensive written reports and gave oral evidence at this hearing before me. Both of them acknowledge the parents have made very substantial progress since they, the experts, first dealt with them when they, the experts, were recommending the permanent removal of the older children. Both experts, in their written evidence at least, concluded that if the parents have another child, whilst an assessment may be needed, the child should not be removed from them while such an assessment took place, though it is only right to record that in this, as in pretty well every other matter of which she spoke, the psychologist became increasingly cautious as she gave oral evidence. However, said the experts, the real progress that has been made is not enough to justify attempting a rehabilitation of this child at this time. They contend that much work remains to be done. The psychologist in oral evidence, though I am not sure she had said it in her report, said that some of that work, quite a lot of it, would have to take place before a rehabilitation started. They both said that it was really impossible to assess the real risks involved in rehabilitation without there being some significant contact which could be observed and evaluated. Of course, everybody in the case accepts that contact is simply impracticable unless and until an order has been made refusing the adoption. Those of course are all matters that I must take into account. I was left with the impression, and I do not assert this because it was only an impression, that the psychologist became increasingly cautious once she realised that serious consideration was actually being given to the case that the parents were seeking to advance.

Now, there are two other matters which have been universally advanced as grounds for concern about the parents. The first of those is a failure by the parents to accept their responsibilities for what has happened in the past. Now, I am ready to accept that there is something in this concern because it is clear to me that they do not accept the full implications of Judge Bond’s judgment of the 1st July 2011. However, they have, by what they have done, shown a real awareness of deficiencies in their own parenting and personalities. They have demonstrated a serious commitment to the cause of endeavouring to improve themselves and I think I am not as troubled as others by their failure, as it were, to make unmitigated confession in respect of everything that has occurred. I am not saying there is not something in it, but the something that is in it that may be truly significant, is a failure to appreciate just how far they would have had to travel to get from the 1st July 2011 to the place where rehabilitation could begin. Secondly, it is said that they have failed to work honestly and openly with professionals. I fully accept, as I think do they, that there have been some examples of that but that needs to be qualified I think by two other observations. The first is that they have certainly not been amiss at making admissions contrary to their own interests from time to time during the course of these proceedings. How otherwise could they have, as it were, done what they have done to demonstrate a commitment to improvement? Secondly, I think they and the social worker were placed in a next to impossible position by a family placement and adoption officer being left with the responsibility for dealing with a case which was, in fact, all about a removal and rehabilitation. Adoption and placement officers have a very distinctive role to perform, which is based on the assumption that a decision has already been made that adoption is in the best interests of the child and their role is to procure that end. The social worker was being asked to do something that was completely counterintuitive and I am not surprised that she and the parents found relationships in those circumstances difficult. Nothing turns on this, in my judgment, but it was canvassed in the evidence so I think I ought to express the view that I attach no significance whatever to anything that was or was not said in the last interview between the social worker and the parents. If the purpose of an interview is to establish evidence it has to be properly noted at the time. I thought we had all learnt that by 1984 at the latest and, of course, if that is not the purpose and there are other purposes well of course nobody has to sit there poring over notebooks, but it was being used as though that were the purpose of the interview and it was wholly inadequate to achieve that end.

I recognise that there would be some risk of the parents being less than fully candid with a professional. However, it seems to me that the whole history of the case viewed in the round encourages one to the view that they would be in relation to things that really mattered and that such a risk, if all other things were equal, would be a risk worth accepting

That left the Court in a very difficult position

Everybody agrees that there are only two possible outcomes in this case. Either an adoption order is made with resultant devastation to the parents and their families or a rehabilitation order is made with subsequent devastation to innocent prospective adopters who took this child under a placement order without a hint, so far as they were concerned, that the thing could ever blow up on them.
Therefore, those seem to be the choices that confront the court and I must evaluate those with care, bearing in mind both the lifelong perspective required by Section 1(2), and also that this is not a choice in any real sense. This is a case in which an adoption order will only be made if only an adoption order will meet the welfare needs of this child and that the welfare needs of this child requires an adoption order be made. I evaluate it bearing in mind what Thorpe LJ said about the last hurdle being the highest, but I also bear in mind that at the end of the day, the legal burden to establish adoption lies not on the parents but on the prospective adopters.
I think, because it was clear how difficult a dilemma this was for the Judge, it would be fair to set out his conclusions in full rather than to condense them. I will simply say that if THESE parents were unable to succeed in opposing an adoption, before THIS Judge, I am not sure when (or indeed if) I will ever see a successfully opposed adoption. [I think it is something of a shame that Lady Hale’s “nothing else will do” formulation does not come into this exercise, because framed in that way, it is possible that a different conclusion might have been reached – it is almost impossible to say]

Therefore, let me start with my consideration of the merits and demerits of the rehabilitative process. I am satisfied that the parents have been committed to the concept of self-improvement. I can see the basis on which they say that they have achieved all that has been asked of them, but of course I have to remind myself that it is where you start that determines how far you have to go and doing all that you reasonably can may not in fact be to do enough. I need to remember, in the context of rehabilitation, where SR is at now, where the parents are at now and the full implications of what is involved in working out rehabilitation. Thus, if it were successful the child would grow up with the natural parents in settings in which the vast majority of children grow up and I recognise that it was always going to be the case that whichever choice the court made in this case, SR was going to grow up separate and apart from B, M and H. On the other hand, if the rehabilitation were unsuccessful, everybody agrees that would be a disaster for SR. Of course, no one can actually predict what would happen if the rehabilitation were unsuccessful but all the realistic possible outcomes merit the description ‘disaster’, so far as SR is concerned. Hence, the three questions that emerged. Would SR survive rehabilitation? Would the parents survive rehabilitation? Can the parents provide the necessary ongoing care for the next 15 and 16 years? Let us come to those questions in the context of considering rehabilitation. Would SR survive rehabilitation? Well, the short answer is nobody can give a confident answer to that because there can be no contact and because nobody would have any choice but simply to see what happened when you tried it. Secondly, it will of course be a second breaking of secure attachments and an attempt to make a third set of attachments. It would involve the burning of all boats, because the prospective adopters would not be available to her, in the light of a breakdown in rehabilitation and she would have to start all over again. It would mean a move to two people, i.e. the parents, who I think are emotionally more fragile that the prospective adopters and it would involve assessing that risk in the context of consequence. A modest risk that involves a serious consequence, should it come about, will invite much greater caution than the wider risk for which the consequences are predictable and manageable. This very firmly comes in the first of those categories. I confess to having very real fears for SR, should this process happen because, although the risk of failure is by no means certain, it is clearly real and the consequences are so serious.

The second question, would the parents survive the rehabilitative process? I have more confidence in that. Even if they underestimate the possible difficulties involved, they do appreciate that seriously troubled waters would lie ahead and they are willing to relocate and they are committed to the process, so that were SR to survive the process, then it seems to me it would be fair to conclude that the parents probably would. However, that then leaves the third question: would the parents provide ongoing care throughout this child’s childhood? The parents are confident that they could and I fully accept that that expression of confidence is genuine, in that it reflects what they feel and believe. I have to confess, however, that I do not fully share that confidence, partly because of their emotional fragility and partly because of their unknown capacity to react to what may be wholly unpredictable and quite irrational demands and responses of an upset child. This is a radically different state of affairs from dealing with a new baby, as we are dealing with a child that is attempting to make, and putting at risk, the third set of attachments in the first five years of her life. My confidence is inevitably dented by the gravity of the consequences of it all going wrong.

Now, what are the merits and demerits of adoption? Well, the demerits are clear enough. She will be deprived of being brought up, as the vast majority of children are brought up, by their own parents. That can lead, I fully recognise, to issues both in adolescent and adulthood because a child who will know what the background is will know that they are not being brought up in the way in which children are usually brought up. On the other hand, one has to recognise that a placement of a child of this age who has good attachments to the prospective adopters will, in the overwhelming number of cases, lead to at least a satisfactory outcome of family life. Now, of course, you can have both at the same time. You can have a satisfactory outcome with all the issues that adoption can raise in adolescence and adulthood and the fact that they have been brought up differently. The two are by no means exclusive and one has to consider them all together.

Having as it were, looked at the respective merits of the approaches, let me stand back and review all this through the prism of Section 1 of the Adoption and Children Act 2002. I remind myself that subsection (2) requires that the paramount consideration of the court must be the child’s welfare, throughout her life. I am anxious when I reread subsection (3) which says, ‘The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the children’s welfare.’ Well, it was once pointed out in the past that SR had been involved in litigation for the whole of her life after the first fortnight and that remains as true today as it was then. Mercifully, for one reason or another, she will not be conscious of the litigation that goes on at some distance from her own awareness, though she will be deeply conscious, if not able to articulate, the fact that she has had two moves, three homes during the course of her life, if you include the first fortnight as one of them, which I do.

So far as Section 1(4) is concerned it seems to me that the key aspects of it in this case are the child’s particular needs, in terms of security and stability, having regard to her life experiences to date and the child’s age, which has the effect of making it impossible for her to understand the adult world in which her future is caught up or to explain to that adult world the effect that that is having on her. I used the expression earlier that we are likely to see unpredictable and apparently irrational demands being made by a child who has no other capacity to communicate when distressed or confused by what is going on around her. There are two other aspects. First, one must consider the harm that she is at risk of suffering; that is entirely, in my judgment in this case, associated with the risk from a breakdown in rehabilitation and the emotional harm that will be occasioned by that. It would not however be right to part with the matter without, secondly, considering the requirements of subsection 1(4)(f) which provides as follows:

‘The relationship which the child has with relatives and with any other person in relation to whom the court considers the relationship to be relevant, including the likelihood of any such relationship continuing and the value to the child of its doing so, the ability and willingness of any of the child’s relatives or any such person to provide the child with a secure environment, in which the child can develop or otherwise meet the child’s needs and the wishes and feelings of any of the child’s relatives or any such person regarding the child.’
Now, that is drawn in very wide terms simply because adoption can arise out of a whole concatenation of circumstances which bear little or no relationship to one another, as between one case and another. However, it seems to me in the context of this case that the court, as part of the welfare and the judgment is to take account of the fact that we have parents who are willing to provide the child with a secure environment in which the child can develop or otherwise meet the child’s needs and what is in question is not their willingness but their ability to do so and that seems to me a matter on which the court should reflect. Secondly, the wishes and feelings of any of the child’s relatives regarding the child. I have only cursory evidence as to the input of the extended family but it is enough to suggest to me that the parents when they speak, speak with the support of their families and that therefore the wishes and feelings of the extended families and the parents are properly to be taken into account. The parents have demonstrated a commitment to the child which entitles them to have their wishes and feelings considered. Therefore, in my review of all this through the prism of Section 1, I have reminded myself of the need for a lifelong perspective. I have reminded myself I am dealing with a child with particular needs, in terms of stability and security. I have reminded myself that I am dealing with a child too young to understand the adult affairs that surround her and in which she is inevitably caught up. I remind myself that a breakdown in rehabilitation would, on anyone’s account, give rise to a risk of suffering harm and I have taken close account, I hope, of the ability and willingness of parents to provide for her and their wishes and feelings about that happening.

I have considered this case with the most anxious care, considering how much is at stake, both for parents and prospective adopters who happily all have a real understanding of each other’s predicaments. However, above all what is at stake for SR? There can be no blame attached to any of the four adults for why we have all ended up where we have. Nevertheless, a decision of profound significance has to be made. In the end, I have reached a clear conclusion that there is only one route which will sufficiently safeguard the welfare of SR and that is the route of adoption. My real concerns about SR’s ability to survive the process of rehabilitation and the parents’ ability to sustain her care, whatever her reactions throughout her childhood, when seen in the context of their fragility and of the consequences to SR of a failure of rehabilitation and the need to then start all over again. All those matters when drawn together, in my judgment, require that adoption be provided as the way of securing her welfare and therefore require that the court dispenses with the parents’ consent. In making the order which, in my judgment, promotes the welfare of SR, I fully recognise the grief of the parents who do not share my view and I recognise that I have no comfort to offer them, beyond letterbox contact. If ever an example was needed of how legitimate and heartfelt aspirations of parents can be trumped by the welfare needs of the child, this surely is it. That said, those are the orders that I propose to make.