Re B-S can itself be the change of circumstances

The Prospective Adopters v London Borough of Croydon 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/331.html

In this case, the father was seeking leave to oppose an adoption order, that adoption arising from a Placement Order made on February 2012, in relation to proceedings that have now been going on for five years. There have been unsuccessful appeals to the Court of Appeal and the Supreme Court. The father has lodged an ECHR claim, and that has not yet received any date or directions.

It is not altogether surprising that the leave to oppose application found its way up to the High Court, given that history of litigation.

Here are the five points on which the father based his claim of a change of circumstances (that being the first limb to meet the statutory test to oppose adoption – the second being in effect a balancing of the solidity of the case against the impact on the child of reopening the case)

a) The effect of Re B and Re B-S;

(b) The alleged cancellation of one or possibly two periods of contact in June 2013;

(c) Improvements in the health and development of the subject child; and

(d) The pending application in the ECHR.

(e) The paternal grandmother obtaining her leave to remain in the UK

The High Court  (corrected from earlier error) had little difficulty in rejecting (b), (c) (d) and (e) as not being  changes in circumstances since the Placement Order was made and thus not meeting the first limb of the test.

• First, it cannot possibly be said that the cancelling of one or possibly two periods of contact in June 2013 gets close to a change of circumstances. There was a genuine mistake made by a social worker and there was an offer to make up the lost contact. The argument was modified by Mr Macdonald in submissions to be based on the fact that the Applicants had previously supported twelve periods of contact between N and her Father after adoption but were now saying there should be only four. This has just as little merit. The Judge had considered this in detail in his judgment and had preferred the Local Authority position which was for four periods of contact, rather than that of the Guardian (or even the Applicants) for more. He approved the Care Plan which provided for four contact visits, so there has been absolutely no change in circumstances. 
• Second, it is alleged that there have been improvements in the health and development of N. The only relevance of this, in my view, would be if it meant that she was going to be able to be independent by the time she attained her majority rather than remaining dependent on the Applicants. 
• Whilst it is quite clear that there have been improvements in her physical condition and, in particular, in relation to the tracheotomy, it is clear that she remains a very disabled child. I have a medical report from Dr O, a Consultant Community Paediatrician dated 21^st January 2014 which makes it clear that N has cerebral palsy (spastic diplegia); autism (diagnosed since the hearings before HHJ Atkins); and global development delay as well as speech and language delay. She is inattentive and impulsive. She is likely to have significant and complex communication needs. It is right that Dr O has not seen N recently. At the PTR, I gave permission for the doctor to be asked three follow up questions. I do not have the answers to hand as yet but it is clear to me that there has been no significant change of circumstances in this area. 

• The third alleged change of circumstances is the application to the ECHR. I cannot see how this can be a change of circumstances, particularly where the ECHR has not accepted the case.  

Fourthly, the Paternal Grandmother has, since the judgments of HHJ Atkins, been given permission to remain in this country, albeit initially for a two year period. It seems pretty clear that this will, in due course, be extended so as to enable her to become a British Citizen. Again, this is most certainly not a change of circumstances. The expert evidence before Judge Atkins considered this was the likely outcome, even if the reason seems to have been different to that postulated at the time. Moreover, the case against adoption was in part based on the possibility of the Father and Paternal Grandmother being removed from this country if the placement order was made. Although this argument was firmly rejected by the Judge, it is impossible to see how the favourable resolution of the Grandmother’s position can assist the Father in alleging a change of circumstances. It follows that this ground also fails.

That left the “The change in the law with Re B and Re B-S is in and of itself a change of circumstances” point. 

• It is, however, the final ground with which I have had the most trouble. It is argued that the effect of Re B and Re B-S invalidates the decision to make a placement order and is therefore a sufficient change of circumstances to warrant the Father being given permission to oppose the adoption. 
• I do not propose to deal with arcane arguments as to whether or not the Supreme Court and the Court of Appeal were merely stating the law as it has always been. The simple fact of the matter is that HHJ Atkins did not have the benefit of those judgments when he gave his judgments. 
• I have come to the conclusion that is impossible to say that Judge Atkins applied the test in Re B. In doing so, I am not being critical as he did not have that test available to him. It is though right that he did not find that adoption was “necessary” nor that “nothing else will do.” In fact, he found the opposite. He found that special guardianship was a “possible solution” albeit with disadvantages. He found adoption to be “the best solution” rather than the only solution. 
• It is, of course, quite possible that, if he had properly directed himself, he would have come to the same conclusion but he has not said that. Moreover, I take the view that it is impossible to come to that conclusion in the way that Black LJ was able to do in Re J. 
• I must consider the fact that both the Court of Appeal and the Supreme Court dismissed the Father’s appeals. It is, though, undoubtedly the case that the Court of Appeal did not dismiss the appeal on the basis that a proper construction of the judgment was that there had been a determination of the competing arguments between special guardianship and adoption. The judgment in the Court of Appeal is entirely based on the fact that the Judge had not been asked to perform this exercise. The subsequent cases have made it clear that he should have done so. 
  • I have therefore come to the conclusion that there has been a change of circumstances in accordance with section 47(5)

That is a somewhat huge decision, suggesting as it does that a parent need make no actual changes themselves of any kind post the making of a Placement Order, but can rely on the legal requirements of a judgment having changed a YEAR after the judgment was delivered, to demonstrate a change in circumstances.

That also leaves individual cases poring over this decision and that in Re J (see below) trying to work out which of the two camps that particular case falls into.

• In Re J (A Child) [2013] EWCA Civ 1685, Black LJ dealt with the approach to judgments given on the issue before publication of the decisions in Re B and Re B-S. She said:- 
  

  “I have already remarked that the judge’s judgment is short. It has to be borne in mind that the judge can hardly have been aware when he gave it of the intense focus that there would be this year on the form and content of judgments…However, although he kept the judgment short, the judge gave clear signposts to the evidence that supported his conclusions…it is not incumbent on a judge to replicate all the evidence in his judgment, provided that he identifies sufficiently the evidence he has accepted, what he takes from it and what findings he makes based upon it. In my view, this judge did that and, taken as a whole, his judgment clearly shows that he engaged with the essence of the case and directed his mind to, and answered the key questions. We can see from it why it was that he made the orders that he did.”

Okay, so father met the first limb of the test, but given how technical the limb was met, it can hardly have the requisite solidity to move forward to a contested adoption, can it?  It absolutely can, and it does.

 I must now turn to the second question, namely whether or not the Father has shown that his prospects of success are more than just fanciful but have solidity. I cannot say what conclusion I will come to when the arguments in favour and against adoption are correctly marshalled before me. I can, however, say that it is not inevitable that the end result will be adoption. It follows that I have concluded that the prospects of success are not fanciful and do have the required solidity.

• My paramount concern is the welfare of N. Mr Main Thompson for the Local Authority rightly concedes that, given her disabilities, it will not adversely affect N’s welfare if I give permission so her welfare is not a ground for refusal. 
• I have been troubled about the position of the Applicants. I do not want them to suffer undue distress, which I accept could itself have a detrimental effect on N. In this regard, however, I am reassured by the evidence that was before HHJ Atkins. They were asked in writing as to their views and they said that their priority was to provide consistency and stability for N and that the type of order made by the court was, for them, less important than this. I recognise that they now seek an adoption order but it is not a case where N was placed with them solely on the basis of a placement order. 
• To reassure them further, I make it quite clear that there is no question whatsoever of N being removed from their care. The Father’s appeal against the final care order has been dismissed and he can have absolutely no complaint about that. He has been excluded as a carer and that will remain the position. The issue is solely between special guardianship and adoption. I make it equally clear that, by giving leave to oppose, I am not indicating that I favour special guardianship over adoption. I will decide on the evidence. I am merely saying that the Father is, on the authorities, entitled to have the matter heard and properly determined. 
• I therefore give the Father leave to oppose the adoption application. As I indicated at the beginning of this judgment, I am very troubled by the immense delay that has taken place in this case. I will hear the case with a two day time estimate commencing on 30^th April. It will not be adjourned. It will be reserved to me. The hearing will concentrate solely on the issues identified in Re B and Re B-S. I will not consider anything else. If there has to be oral evidence, it will be extremely strictly controlled.

The contested adoption hearing will not, therefore, be Adoption v return to father’s care, it will instead be Adoption v Special Guardianship Order to the people who wanted to adopt the child.

Perhaps it is just a pragmatic decision, on the facts of this individual case, but it muddies waters which were already far from pellucid.