This case made quite a lot of news last year – parents of a boy born in 2012, who suffered significant fractures. Within care proceedings, there was a finding of fact that the parents had caused these injuries and in 2013, a Care Order and Placement Order was made. In 2014, the child was placed with prospective adopters and an adoption order was made. In late 2015 (3 years after the injuries, and a year after the adoption order was made) the parents were acquitted at the criminal trial. In fact, the Judge at the criminal trial directed the jury to acquit as there was no case to answer. (That’s obviously a lot stronger than the case going before a jury and the Jury not reaching a 12 or 10 juror verdict that they were sure the parents were guilty. This was a criminal Judge saying that the evidence showed no case to answer)
Understandably, there’s a lot of public disquiet about whether there’s been a miscarriage of justice here, and what would happen.
The law isn’t very helpful to the parents in terms of their ultimate aim to get their child back. An adoption order being overturned after it has been made is very very unusual. I’ve found only 2 reported cases where that happened. One was a step-parent adoption which the birth father had agreed to and later learned that the mother had lied to him, concealing the fact that she had a terminal illness and he would never have agreed to the adoption. The other was
PK v Mr and Mrs K 2015
Where the child had been adopted by family members who had physically abused the child, who later left them and went back to live with mother. Everyone in the case was supportive of the adoption order being revoked. I wrote about the difficulties here:-
The lead case on ‘oh, maybe we got this wrong, but the adoption orders have been made now’ is Webster, where adoption orders were made on the basis of physical injuries and a Court was later persuaded that the injury had been the result of scurvy, itself the result of a failure of a brand of formula milk to have sufficient vitamin C. The Court there, as a result of the passage of time and public policy issues declined to revoke the adoption orders.
“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.”
Anyway, in this case
Re X (A Child) 2016
the parents went to the Court of Appeal, and all parties there * supported a hearing taking place to DECIDE whether there should be a re-hearing of the finding of facts taking place, for the benefit of the child having the truth about their life and childhood and the public confidence in fairness of the justice system.
(* I add the asterisk, because as you can see from Re X, the adopters – who were at that point the child’s legal parents and had been for over a year, were not told about the circumstances or the litigation and were not parties to the proceedings. I’m not at all sure how that is fair or compliant with their article 6 rights. They were and are in law, the legal parents of the child, and it clearly had an impact on their family life.
Ms Fottrell QC made that same point, and I absolutely agree with her. The President bravely ducks the issue.
At the adjourned hearing, Ms Fottrell set out her clients’ position as being that they “appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the facts following on from the outcome of the criminal trial”, but opposing any application to set aside the adoption order. Although making clear that her clients made no point against any of the parties, Ms Fottrell submitted that the decision to exclude the adoptive parents – X’s legal parents – from the appeal process and the permission hearing in the Court of Appeal was wrong and in breach of both Article 6 and Article 8 of the Convention. I record Ms Fottrell’s submission on the point; it is not a matter on which it would be proper for me to comment.)
The case has now come before the President, and he has published this judgment. Bear in mind that the re-hearing has not taken place, so at this stage the family Court hasn’t decided whether the threshold criteria was wrongly found in 2013, or even whether it was right then on what was known at the time, but on what we know now it can’t stand. The parents have been cleared and pretty comprehensively in a criminal Court, but the standard of proof is higher there, so it doesn’t automatically follow that any re-hearing would be bound to clear them. It very well might, but it might not.
As a matter of law, there isn’t really an easy legal framework for this to operate in. The parents aren’t able at this stage to apply to revoke the adoption application, because the findings in the care proceedings still stand, it isn’t an appeal out of time. So we of course use the Court’s magical sparkle powers of the inherent jurisdiction to have a decision as to whether to have a re-hearing. That’s not automatic legal aid, but it doesn’t say in the judgment that the parents lawyers are acting pro-bono (for free) so they must have been one of those rare cases where the Legal Aid Agency grant exceptional funding under s10 LASPO.
The President reminded everyone that if there was a re-hearing and the findings were overturned, that would not automatically lead to the return of the child, and that the Court are not dealing with that application at all (yet), but of course, it is a prelude to the parents making such an application if the re-hearing vindicates them.
- I am not concerned today with any application which may hereafter be made by the birth parents seeking to challenge the adoption order. That is a matter for another day and, in all probability, for another court. It is relevant only because Ms Cover has made it clear on instructions, both in her position statement and again orally, that the present application before me is, at least in part, what might be called the springboard for such a further application. However, as I observed in In re C, paras 44-46:
“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”: In re W (Children), 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. In re W (Children) can be contrasted with In re K (A Minor) (Adoption: Foreign Child)  2 FLR 221 where an adoption order was set aside in circumstances where there had been (p 227) “inept handling by the county court of the entire adoption process” and (p 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 (p 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 natural father 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.”
- Likewise here I express no view on a point of no little difficulty and which is, as I have said, a matter for anther day. The significance of it for present purposes is simply that, as Ms Fottrell correctly submitted, success by the birth parents (if they are successful) on the re-hearing of the facts by no means assures them of success in seeking to have the adoption order set aside.
In terms of whether there should be a re-hearing, the President summed up the arguments
- The case put forward by the birth parents is simple and compelling. They have been, they say, just like the parents in Webster, the victims of a miscarriage of justice. They seek to clear their names, both so that they may be vindicated and also so that there is no risk of the judge’s findings being held against them in future, whether in a forensic or in any other context.
- For different reasons, their desire for there to be a re-hearing is supported by X’s guardian, who submits that it is in X’s best interests that he should know the truth about his birth parents and about what did or did not happen to him.
- I agree with the guardian. X has a right (I put the matter descriptively rather than definitively) to know the truth about his past and about his birth parents. This has long been recognised in our domestic law. In S v McC (Otherwise S) and M (DS Intervener), W v W  AC 24, 57, Lord Hodson, in the context of disputed paternity, said that:
“The interests of justice in the abstract are best served by the ascertainment of the truth and there must be few cases where the interests of children can be shown to be best served by the suppression of truth.”
In In re H (A Minor) (Blood Tests: Parental Rights)  Fam 89, 106, Ward LJ said, apropos paternity:
“every child has a right to know the truth unless his welfare clearly justifies the cover-up.”
“that the interests of justice are best served by the ascertainment of the truth.”
- But this principle is not confined to issues of paternity, as is clear from Strasbourg law, which recognises it as an ingredient of the rights protected by Article 8: Gaskin v United Kingdom (1990) 12 EHRR 36,  1 FLR 167, and Mikulic v Croatia (2002) 11 BHRC 689,  1 FCR 720. It is also recognised in Articles 7 and 8 of the United Nations Convention on the Rights of the Child.
- The wide impact of the principle that, from a child’s perspective, their interests are best served by the ascertainment of the truth, whatever that truth may be, is illustrated by Re Z (Children) (Disclosure: Criminal Proceedings)  EWHC 61 (Fam),  1 FLR 1194, para 13(vii):
“the children … have a direct and important interest … in ensuring that the truth, whatever it may be, comes out. As they grow older they will need to know, if this is the case, and however painful it may be, that their father is a murderer … In this as in other respects, better for the children that the truth, whatever it may be, comes out.”
- There is also, however, a wider and very important public interest which, in my judgment, is here in play. I make no apologies for repeating in this context what I said in Re J (Reporting Restriction: Internet: Video)  EWHC 2394 (Fam),  1 FLR 523, paras 29-30:
“29 … We strive to avoid miscarriages of justice, but human justice is inevitably fallible. The Oldham and Webster cases stand as terrible warning to everyone involved in the family justice system, the latter as stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable: W v Oldham Metropolitan Borough Council  EWCA Civ 1247,  1 FLR 543, Oldham Metropolitan Borough Council v GW & PW [ EWHC 136 (Fam),  2 FLR 597] and Webster v Norfolk County Council and the Children (By Their Children’s Guardian)  EWCA Civ 59,  1 FLR 1378. Of course, as Wall LJ said in Webster, para , ‘the system provides a remedy. It requires determined lawyers and determined parties’. So, as I entirely agree, the role of specialist family counsel is vital in ensuring that justice is done and that so far as possible miscarriages of justice are prevented. But that, if I may say so with all respect to my predecessor, is only part of the remedy. We must have the humility to recognise – and to acknowledge – that public debate, and the jealous vigilance of an informed media, have an important role to play in exposing past miscarriages of justice and in preventing possible future miscarriages of justice.
 Almost 10 years ago I said this (Re B (A Child) (Disclosure), para ):
‘… We cannot afford to proceed on the blinkered assumption that there have been no miscarriages of justice in the family justice system. This is something that has to be addressed with honesty and candour if the family justice system is not to suffer further loss of public confidence. Open and public debate in the media is essential.’
I remain of that view. The passage of the years has done nothing to diminish the point; if anything quite the contrary.”
- In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.
The law on re-opening a case is Re Z, and the President quickly skates through that (having already decided above that there is going to BE a re-hearing)
The re-hearing is going to take place in October 2016. That will be four years after the injury, three years after the Care Order, two years after the Adoption Order, and a year after the parents were exonerated at the criminal trial. If nothing else, this case has not shown that the legal process can react swiftly. The President has also indicated that there may be before then a hearing about how the Press can report the re-hearing (thinking of the Poppi Worthington case, and the press interest there is going to be in this, it might for example include almost-live reporting and tweeting)
IF the findings are overturned at that re-hearing, there’s still a massive legal mountain to climb for the parents. The guidance in Webster is from the Supreme Court, so it isn’t open to the President to simply ignore it. It does however, give the small chink of light An adoption order once lawfully and properly made can be set aside “only in highly exceptional and very particular circumstances”:
So a Court could potentially find that these ARE highly exceptional and very particular circumstances. (though showing why very similar circumstances in Webster didn’t meet the test but this one does is going to require some particularly skilful footwork.)
I appreciate that people’s FEELINGS about this will be very strong, and many of you will strongly support the parents getting the child back. If I was doing the odds, based on the Webster decision, it is at best a 20% chance, even if they overturn the findings. The Webster decision, in law, is a really high mountain to climb. That test, as a Supreme Court decision, is a test that really only Parliament or the ECHR could change. So it is not hopeless for these parents, but legally they have a mountain to climb.
It is certainly true that the public debate and the judicial position on adoption is rather different than it was in 2008 when Webster was decided. It is possible that this will have an impact.
A dreadful set of circumstances for everyone involved – if the parents are found both to the criminal AND civil standard of proof to have not injured their child then what has happened to them has been the most awful thing one can imagine. They will have been completely let down by the British justice system.
It is almost impossible to understand how the child would make sense of it. The child’s adopters, who have had this child in their home for two years and who are now the legal parents of that child and consider him as part of the family, and who went into that process in complete good faith have to face months of doubt and anxiety about the future. It would be nice if whatever the Court finally decide about the adoption order, both his adoptive parents and his birth parents get to play a strong part in his future life, but that in itself would be a brand new arrangement, never tried before in England, and litigation doesn’t often foster that spirit of all parties wanting to work together to do what is best for the child.
One thing is for sure, we are going to have a huge public debate about adoption in October 2016 when this case is decided, and an even bigger one if the parents are cleared but the adoption order still stands (as the precedents suggest that it would)