Avoiding catastrophes

 The peculiar, and desperately sad, case of Re C (A Child) 2013. 

 http://www.bailii.org/ew/cases/EWCA/Civ/2013/431.html

This is a Court of Appeal decision which has hit some of the national press. It is the one where a father learns three years after the event that he has fathered a child, and worst still, learns that the child has been made the subject of a Care and Placement Order and placed with adopters.

 He sought to oppose the adoption order, and this was refused. What happened then, was that a Judge heard the application for adoption and made the order (knowing that there was a desire to appeal the decision refusing leave to oppose the adoption order, but it being uncertain as to when that would be).

1. C, as I shall refer to him, was born on 13 August 2007. The appellant was in fact, though he did not know it at the time, his father. C’s mother was unable to care for him. On 16 August 2007, just three days after he was born, the local authority obtained an interim care order in relation to C from the Family Proceedings Court in accordance with section 38 of the Children Act 1989. The next day, 17 August 2007, C was placed with a foster carer with whom he remained until 28 October 2010. On 1 May 2008 the Family Proceedings Court made a final care order in accordance with section 31 of the 1989 Act, followed on 8 August 2008 by a placement order in accordance with section 21 of the Adoption and Children Act 2002. On 19 October 2010 C was matched with adopters. On 28 October 2010 he was moved to an interim placement while introductions began with the adopters. On 8 November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.

2. Thus far, everything had proceeded as might have been expected. At this point I need to go back to the beginning.

3. The appellant had had a brief sexual relationship with C’s mother in late 2006 at a time when she was living with another man, R. The appellant learned that the mother was pregnant. He asked her if he was the father. She denied it and said she thought R was. The care proceedings were brought and continued on that basis. In 2009 the appellant resumed his relationship with the mother. According to him, it continued until about May 2011. A son, M, was born to them in September 2010. Towards the end of 2010, according to the appellant, his sister saw photographs of C and wondered whether he might be the father; the mother apparently laughed and said she was sure he was not. He says that to him she always said that R was the father, though he admits he began to have doubts.

4. In about May 2011 the appellant became aware of the adoption proceedings. On 6 June 2011, and again on 20 June 2011, his sister approached the local authority. She was told that they should seek independent legal advice. The first directions hearing followed on 15 August 2011; the order made on that occasion recorded the local authority’s agreement to carry out a DNA paternity test.

5. On 3 October 2011 a DNA test report from Cellmark indicated that the appellant was C’s father. On 18 October 2011 the results of the DNA test were communicated by the local authority to his solicitors and by them to the appellant. The very next day, 19 October 2011, he filed an application at the Principal Registry under Part 19 of the Family Procedure Rules 2010 seeking “permission to defend/oppose the adoption order” and permission to be joined as a party. The application was made pursuant to section 47(5) of the 2002 Act. It is to be noted that in response to the question “Does your application include any issues under the Human Rights Act 1998?” the answer given was “No”. Directions were given by District Judge Malik on 20 October 2011, 7 November 2011 and 20 December 2011. On the last occasion he had a position statement from C’s mother which set out her position very clearly: “I do not want my child … to be adopted by strangers … I wish to ask the court to place him with his natural father or allow his sister to adopt him”.

The Court made it plain that the Local Authority in the care proceedings, having been assured by mother throughout that the child’s father was a man “R” and that the true father had never come into the equation, were entitled to proceed on that basis and not have to try to investigate the true paternity. By the time the father came forward, the child had already been in the potential adoptive placement for two years and the application was lodged.

The Court of Appeal considered the case and concluded that the initial decision to refuse leave to oppose was correct, and certainly not plainly wrong.

29. Before Judge Redgrave, the appellant had to clear two fences. First, he had to establish (as he did) the necessary change of circumstances referred to in section 47(7) of the 2002 Act; second, he then had to satisfy the court that, in the exercise of discretion, it would be right to grant permission: Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para [18]. In relation to the second, the question fell to be decided by the application of section 1 of the 2002 Act to the facts of the case, so the paramount consideration for the court was C’s welfare throughout his life: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 1 WLR 2556, [2007] 2 FLR 1069, paras [27], [55].

30. At this stage a “stringent approach” was required: Re W, para [28], approving the approach adopted by McFarlane J, as he then was, in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para [15]. In Re W Thorpe LJ expressed it in this way (para [20]):

“I am in no doubt at all that where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family. Of course, each case will depend upon its particular facts. The present case may be said to be a strong case in the sense that the mother had had no sight of J since the summer of 2007. J had been placed for over a year. J had been told of and had reacted to the making of the adoption order in the spring. To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child. So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable. In my opinion, they should have substance. Perhaps, to borrow from the language of Lord Collins of Mapesbury in another sphere, they should have solidity.”

That is, of course, a reference to what Lord Collins said in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 AC 628, para [33].

31. Ms Fottrell, for whose admirable submissions I am indebted, as is the appellant, distilled her submissions into seven propositions:

i) That Judge Redgrave failed to have due regard to the factors listed in section 1(4), and in particular section 1(4)(c) of the 2002 Act (“the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person”).

ii) That she failed to have due regard to section 1(4)(f) (“the relationship which the child has with relatives, and with any other person in relation to whom the court or agency continues the relationship to be relevant …”).

iii) That she failed to have due regard to the real possibility that C could be placed with relatives and that, considering the known strengths of the appellant and his sister as carers, the merits of his application should have been considered at a full hearing.

iv) That she was disproportionately influenced by the possibility of disruption to the placement, which was not the only consideration when assessing the welfare of the child, and was wrong to conclude and rely on the assertion that a further move would place C at risk of suffering further harm.

v) That she was wrong to conclude that it was implausible that the appellant did not suspect that he was the father of C, having not heard evidence from him.

vi) That she was wrong to conclude that his immigration status was in any way relevant to her analysis.

vii) That, having concluded that she could not assess the ability of the appellant to care for C but that she could not conclude he had no prospect of succeeding (there was a recent assessment of him as a co-carer for M and he was actively caring for a child at the time), she was wrong to conclude that he should not be granted leave to oppose the adoption.

32. Ms Fottrell identifies the central question for us as being whether Judge Redgrave’s approach was too stringent. She submits that the judge’s approach was to assume that C’s welfare would be adversely affected by a purposeful delay and that too great weight was placed on the fact that C was in the adoptive placement at the time of the application. She supplements this with the additional submissions that Judge Redgrave erred in not considering whether the appellant’s application had ‘solidity’ and in giving insufficient weight to the merits of the appellant’s application to oppose, its prospect of success and the likely benefit to C of being placed with his biological family.

33. Ms Fottrell also pointed out that, in distinction to both X and Y and Re W, the merits of the appellant’s case had never been considered by any court in the course of either the care or the placement proceedings.

34. Ms Fottrell relied upon the protection afforded the appellant by Article 8, both in relation to his “private life” and also in relation to his “intended” or “potential” “family life” as expounded in Anayo v Germany (Application No 20578/07) [2011] 1 FLR 1883, paras [60]-[62], Schneider v Germany (Application No 17080/07) (2011) 54 EHRR 407, paras [82]-[84], and, most recently, Kautzor v Germany (Application No 23338/09) [2012] 2 FLR 396, para [75].

35. Mr Perkins on behalf of both the local authority and the adopters submitted that Judge Redgrave was invested with a discretion that she properly exercised, having regard to the section 1 criteria, in a way that sits comfortably with the current domestic and Strasbourg jurisprudence. Further, he said, even if, which he did not accept, she had included additional matters in her consideration (ie, the appellant’s immigration situation) which she perhaps should not have, her overall assessment and decision was not so plainly wrong as to enable us to interfere.

36. For the purposes of the appeal, Mr Perkins was willing to assume that the appellant in combination with his sister could provide for C’s physical needs, and to a good standard. But, he submitted, sadly for them the combination of all the circumstances in this case falls well short of Thorpe LJ’s “solidity” test. What he called “the unchallengeable obstacles” are a combination of:

i) the fact that the appellant and his sister are strangers to C, now aged 4; not wishing to be unkind, the sad reality is that they have no relationship whatsoever with him;

ii) the fact that for the first three years of his life C was in foster care, so effectively he has had no experience of natural parental care;

iii) the fact that he has spent the last two years with his adoptive parents and has become settled and attached, no doubt secured by those around him in their expectation that this was to be his permanent home;

iv) the fact that, as the judiciary has already noted positively on a number of occasions, his adoptive placement more than adequately meets his needs, particularly for a placement within a culturally appropriate home; and

v) the risk that setting in train the process now being proposed by the appellant could seriously undermine C’s stability and strike hard against his best interests.

37. Despite everything that Ms Fottrell has so attractively argued on his behalf, and recognising the bitter heartache this must cause for a father who, it would seem, was cruelly deceived by the mother of his child, I was by the end of the argument on the point entirely satisfied that the appeal against Judge Redgrave’s order had to be dismissed. Standing back from all the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?

38. In my judgment, Judge Redgrave’s decision as set out by her in a very clear and lucid judgment displays no error of law, no error of approach, whether viewed from a purely domestic perspective or, as one must, from the broader Strasbourg perspective. Nor can it be said that her exercise of discretion was flawed or that it was plainly wrong. In my judgment it was neither. Judge Redgrave addressed the relevant factors and gave them what she thought was the appropriate weight. That was a matter for her, and we cannot interfere unless she was plainly wrong, either in her evaluation of the weight to be attached to them, whether individually or collectively, or in her overall conclusion. She was not. Despite Ms Fottrell’s submissions to the contrary, I do not accept that Judge Redgrave failed to have due regard to, or, as the case may be, was unduly influenced by, the various factors to which Ms Fottrell has drawn our attention

They were not terribly happy that the second Judge, following that refusal of leave to oppose, and knowing that an appeal was being contemplated, went on to make the adoption order.  IF the father had won his appeal against refusal of leave to oppose, that decision to make the adoption order could have made matters very difficult indeed, as overturning an adoption order once made is not straightforward.

42. The dismissal of the appeal against Judge Redgrave’s order renders academic the proposed appeal against Judge Altman’s subsequent order. I cannot pass it by in silence, however, not least because of the very serious implications if the appeal from Judge Redgrave’s order had in fact been allowed.

43. It is quite clear that the appellant has locus – status – to appeal against the order made by Judge Altman even though he was not a party to the proceedings at the time it was made: Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, [2009] 1 FLR 1378, para [141]. The real question is whether his proposed appeal would have been successful.

44. The law sets a very high bar against any challenge to an adoption order. An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”: Webster para [149]. In that case, the adoption orders “were made in good faith on the evidence then available” (para [177]) and therefore stood, even though the natural parents had suffered a “serious injustice” (para [148]). Webster can be contrasted with Re K (Adoption and Wardship) [1997] 2 FLR 221 where an adoption order was set aside in circumstances where there had been (page 227) “inept handling by the county court of the entire adoption process” and (page 228), failure to comply with the requirements of the Adoption Rules, “procedural irregularities go[ing] far beyond the cosmetic”, “a fundamental injustice … to [the child] since the wider considerations of her welfare were not considered” and “no proper hearing of the adoption application.” Butler-Sloss LJ held (page 228) that:

“there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside.”

45. Whether the appellant would have succeeded in meeting that very stringent test is, in my judgment, open to serious question. I do not want to be understood as saying that he would not; but equally I do not want to be understood as saying that he would. It certainly should not be assumed that his appeal would have succeeded.

46. In relation to this aspect of the matter I propose to add only this: I am bound to say that I find Judge Altman’s decision to proceed in the full knowledge that there was a pending application to this court for permission to appeal very difficult to understand, let alone to justify.

The Court of Appeal (and this is the President of the Family Division, who is even now beavering away on the revised Public Law Outline) had this to add, about the case generally

I cannot part from this case without expressing my very great concerns about what it reveals of our system. The history of the events since 7 February 2012 as I have set them out makes for depressing and profoundly worrying reading. This is not, I stress, necessarily a criticism of those involved, most of whom did what was required of them; it is a criticism of a system whose inadequacies and potential for catastrophe have here been all too starkly exposed. No humanly devised system can ever be foolproof, but we must do everything to ensure as best we can that future catastrophes are prevented.

Where a challenge to the making of a Placement Order, or any order consequent to that, is being contemplated, the Court of Appeal say that the following steps MUST be taken  [and adds “when I say must, I mean MUST”]

1. 48.   i) The appellant’s notice must be filed as soon as possible.

ii) Those advising the appellant must give careful thought to including in the appellant’s notice any appropriate application for a stay or other interim relief.

iii) If a transcript of the judgment being appealed against is not then available:

a) the appellant’s notice must be accompanied by whatever note of the judgment (even if unapproved) is available; and

b) the transcript must be ordered immediately.

iv) When an application for a transcript is received, the court from which the appeal is being brought must deal with the application immediately.

v) Respondents who are parties to any application consequential upon the placement order (eg, an application for an adoption order) must immediately inform both the appellant and the Court of Appeal of:

a) the fact of the making of the application; and

b) the date(s) of any hearing of the application.

The President also indicated that steps are to be taken to deal with the particular logjam in this case, which was that the case could not be appealed until the transcript of judgment was available and that obtaining this transcript had taken many many months, thus preventing a Court of Appeal Judge looking at the appeal application at permission stage and giving directions (which might well have included that any application for adoption should be stayed until the appeal was determined).  None of that really helps, because in this case the LSC would not award funding for the appeal until THEY had seen the transcript, and understandably, counsel drafting the grounds of the appeal needed to see the transcript in order to provide the advice for the LSC that an appeal had a reasonable prospect of success.