Tales of the unexpected

Mr Justice Mostyn, in dealing with an application for leave to oppose the making of an adoption order, raised a curious (and to my mind rather unique) point.

Prospective Adopters and SA 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/327.html

The statutory test is that in order to challenge the making of an adoption order if a Placement Order has already been made, the parent needs leave, and to get leave, they need to show a change of circumstances.

Most of the case law on leave (notably Re P and Re B-S) focus on the second limb of the test – if a parent shows a change of circumstances, is it in the child’s interests to allow the leave and hear a full challenge to the making of an adoption order.

Mr Justice Mostyn focuses largely on the first limb – what consitutes a change of circumstances?

For him, the change HAD to be something that was unexpected. Something that had not been foreseen, or forseeable at the time that the Placement Order was made.   (for my part, I don’t think that he is right here, but he makes the argument with significant force)

15. Where, as here, the second condition applies because the child was placed for adoption under a placement order there is a threshold condition of “a change in circumstances since the placement order was made”. The applicant parent has to prove this before the court can move to consider whether leave should be granted to oppose the making of the adoption order.
16. Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.
17. In the well-known case of K v K [1961] 1 WLR 802 the court was concerned with section 1(3) of the Maintenance Orders Act 1950 which provided:
    

    “Where an agreement to which this section applies is for the time being subsisting … and on an application by either party the High Court … is satisfied either (a) that by reason of a change in the circumstances in the light of which any financial arrangements contained in the agreement were made … the agreement should be altered so as to make different … financial arrangements … the court may by order make such alterations in the agreement … as may appear to the court to be just in all the circumstances …”

18. In its judgment the Court of Appeal held that changes which were foreseen or foreseeable at the time of the agreement did not fall within the terms of section 1(3). Holroyd Pearce LJ stated:
    

    “We think that a change in “the circumstances in the light of which any financial arrangements were made” means something quite outside the realisation of expectations. The parties make their bargain upon certain basic facts and expectations. When those facts unexpectedly change, or those expectations are not realised, there is then a change of circumstances which may produce unfairness. Had the legislature intended to give a power to the court to vary agreements as it may vary maintenance orders, it could have said so in terms similar to the sections which regulate variation of maintenance. It did not, we think, intend to remove entirely the stability of agreements, but only to do so when injustice was caused by a change in certain circumstances.”

19. This decision led the Law Commission in 1969 to recommend that the provision be altered to include a change of circumstances which the parties had actually foreseen when they made their agreement. This change was duly enacted in section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970 (now section 35(2)(a) Matrimonial Causes Act 1973). The fact that Parliament had to intervene in this specific case shows to my mind that where a provision talks of a change of circumstances it is talking about an unexpected change in the basic facts and expectations on which the court founded its original decision.

I’m not at all sure that I am with the Judge here, but he has clearly given it a great deal of thought and consideration, and delved deep into the legal framework and underpinnings. For myself, I would think that if Parliament had meant in 2002 that the change needed to be ‘unexpected’ it would have been a fairly simple matter to say so (yes, it needs to be something more than simple passage of time) but I think Parliament would have said ‘unexpected’ rather than relying on everyone realising that as a result of a 1961 case about some different 1950 legislation the word ‘unexpected’ would be implicit.

There are situations, in fact they come up fairly regularly, where a parent is said to be unable to make the necessary progress within the child’s timescales. Take for example a parent who is in a relationship with someone abusive and is struggling to leave them or has left them but it comes so close to the final hearing that the Court can’t have confidence that the separation will be maintained. If two years later, that parent comes to Court having been separated from the violent partner for two years, is that an unexpected change?  Or is it rather something that could have been envisaged as a possibility but the Court could not make the child wait for the parent to show that?

Or a case where a parent is wrestling with drugs or alcohol and is endeavouring to become abstinent? Two years later, the parent has the sort of period of abstinence that would give rise to confidence about the future prognosis that didn’t exist at the time the Court had to make its decision.  Is the parent’s abstinence an unexpected change?  Or was it a possibility that the Court countenanced, but given the child’s timescales, the child could not wait for the parent to achieve this?

I think that I would instead rely on the Court of Appeal in Re T (Application to Revoke a Placement Order : Change of Circumstances) 2014 where an test with the same wording was considered, and the Court of Appeal said this:-

We do not think it permissible to put any gloss on the statute, or to read into it words which are not there. The change in circumstances since the placement order was made must, self-evidently and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings. In our judgment,however, the phrase “a change in circumstances” is not ambiguous, and resort to Hansard is both unnecessary and inappropriate.

Looking at the facts of the case, the father asserted four changes to his circumstances since the Placement Order was made

34. Miss Markham relies on the following changes of circumstances since the placement order was made on 17 January 2011:

i) He has formed a second (invalid and polygamous) marriage to SSB by whom he has had two children YSY and ISS who he is caring for as a secondary carer. YSY is no longer subject to a protective order and ISS never has been. Although he does not share a home with SSB his marriage to her is stable. No-one has ever suggested that domestic violence has featured in it.

ii) Contrary to the plan and expectation that SHT would be adopted this has not happened, because he has acute needs that have prevented him from being found new adoptive parents. He will stay with his current foster parents who either cannot or will not adopt him. Therefore adoption for SSM is a unique treatment which is not to afforded to any of his full siblings. The effect of adoption is to sever legal ties with all his siblings. They will no longer be his legal brothers and sisters.

iii) He has shown that, in contrast to the findings of Judge O’Dwyer, that he can work closely and co-operatively with professionals. He particularly relies on the report of the social worker Tony Stanley dated 2 February 2015 who had been assigned to the case concerning YSY. There have been no concerns regarding his conduct during contact sessions.

iv) He has successfully completed the first year of a two year NVQ childcare course

Mr Justice Mostyn felt, applying his ‘unexpected’ criteria, that changes 2, 3 and 4 didn’t count, but that ther first one did. The first one, that he was caring for children without State intervention is clearly the most important.

35. I am not satisfied that the second, third or fourth grounds amount to qualifying changes of circumstances. In order to explain why it is necessary for me to set out certain key passages from the judgment of Judge O’Dwyer
    

    “14. I am satisfied that taking the above matters into account the welfare of the boys both emotional and physical requires that the boys should be placed for adoption. No lesser order will do or can be managed for the welfare of the children.

    …

    51. The father has not been able to change. He has not recognised his problems. His own evidence adamantly affirms this. It is clear he is not able to work successfully with professionals to assist the children. Despite some protestations in his oral evidence that he would accept assistance from professionals and work with them, it was clear that this would only be on his own terms.

    52. It was clear from the Coral assessment that he is not able to accept and act on advice given to him without becoming angry and defensive. They concluded: “Based around our observations of contact, we gave advice and made suggestions to Mr A to support him to develop his parenting skills, but he was unable to accept these, however innocuous. We remain deeply concerned for the welfare of all the children during contact as our observations indicate that their father struggles to provide them with a safe and contained environment, even within a contact centre and with a supervisor present. He presented at times as very angry and controlling, and the behaviour of the children indicates that they are regulating their behaviour so as to optimise their interactions with their father, rather than that he is adapting and responding to their needs.”

    53. The Local Authority submit and I accept that Mr A lacks empathy and understanding of the children’s needs or an ability to react flexibly in order to provide for them both practically and emotionally. They refer to the Coral Assessment “Given Mr A’s presentation over the course of this assessment, the extent of his denial regarding the concerns in the judgement, and his tack of insight into, and attunement with, his children’s needs, it seems very unlikely that he would be able to provide ‘good enough’ caring for any of his children, even within the context of a robust ongoing professional presence within the family home.” In my judgment that is manifestly well founded.

    54. The Local Authority submit that the court can conclude upon all the evidence and taking into account the welfare checklist that care orders should he made in respect of all four children upon the final care plans proposed. The contact proposed between the parents and the children is appropriate (and approved by the children’s guardian). Placement orders are appropriate in respect to the boys. They are vital in order to pursue the long term placement proposals of the Local Authority. Applying Section 52(1) (b) Adoption and Children Act 2002 it is submitted that the children’s’ welfare requires that parental consent is dispensed with. I find it is imperative that it is dispensed with as the boys require the long term placement plan for adoption as proposed by the Local Authority and supported by the children’s Guardian. As will have been seen I accept these propositions.”

36. I do not accept that because the plan for SHT has altered that this amounts to an unexpected change in the basic facts or expectations that underpinned the placement orders. By its nature a placement order does no more than to allow the adoption process to commence; it does not mandate that it must be concluded by an adoption order. It is known that sadly many children cannot be placed for adoption because of their needs.
37. I do not accept that because the legal effect of adoption in a technical, as opposed to natural, way cuts the formal ties of brotherhood, that this in any way can amount to a qualifying change of circumstance. The plan accepted by Judge O’Dwyer would have had that effect anyway so far as SSM was concerned. That his brother SHT will retain the formal legal tie of brotherhood with his sisters is to my mind neither here nor there.
38. I do not accept that because the father has worked better with professionals that this amounts to a qualifying change of circumstances. It is worth my noting that in my Court of Protection judgment at para 11 I recorded some disturbing aspects to the father’s conduct when he had contact with the mother. Mr Stanley however said this in his report:
    

    “I found Mr A increasingly able to manage his moods and behaviours at times of stress. I experienced him, on the whole, to be willing to work with me. Mr A explained to me that he felt powerless and voiceless in a system of social services and courts, where decisions affected him so gravely. Nevertheless, earlier reports of his aggression and anger toward professionals was not my experience. Mr A conducted himself in case conferences, core groups and other meetings in a calm manner. I directly challenged him on several occasions, as did Ms B (about the money he had promised) and he maintained his calm.”

39. This is to be set against Judge O’Dwyer’s finding that “it is clear he is not able to work successfully with professionals to assist the children.” It is much to the father’s credit that he has been able to mend his ways in this regard. However, such an improvement is surely not unexpected. Even if it were it does not follow that this was a change in the basic facts and expectations that underpinned the order. Put another way, had Judge O’Dwyer known that four years on the father would have conducted himself with professionals in a calm manner it would not have altered his decision in any respect.
40. The father’s NVQ course is not a relevant change of circumstances. This was not even mentioned in his witness statement.
41. I do however find that the first ground does amount to a qualifying change of circumstances. The key finding in para 53 was that “it seems very unlikely that he would be able to provide ‘good enough’ caring for any of his children, even within the context of a robust ongoing professional presence within the family home”. Had Judge O’Dwyer been able to foresee that four years on he would be successfully co-parenting two very young children, he might (and I emphasise might) have reached a different decision about making a placement order although I have no doubt that he would have reached the same decision about making a final care order.