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21 OCT 2014

Re W [2014] EWCA Civ 1303

Re W [2014] EWCA Civ 1303
Neutral Citation Number: [2014] EWCA Civ 1303


Royal Courts of Justice

Tuesday, 12 August 2014

B e f o r e:



DAR Transcript of the Stenograph Notes of WordWave International Limited A Merrill Communications Company 165 Fleet Street London EC4A 2DY Tel No: 020 7404 1400 Fax No: 020 7404 1424 (Official Shorthand Writers to the Court)

Ms M Jones (instructed by Imran Khan) appeared on behalf of the Appellant
Ms P Jenkins (instructed by Bedfordshire Council) appeared on behalf of the Respondent
Ms S Bradley (instructed by Hepburn Delaney) appeared on behalf of the Interested Party



[1] This appeal arises in connection with care proceedings that have been conducted before the Luton County Court in relation to no less than six children. Those six are the younger six of nine children born to the same mother. The group of children have two separate fathers, neither of whom played any significant part in the proceedings. The six children include a group of three older children, now aged 14, 10 and 12, who are not the direct focus of this appeal and a group of three younger children, all girls; D, aged 6, G, aged 4, and M, aged 2.

[2] Though the proceedings ranged far and wide over issues of fact relating to the threshold criteria, issues of the arrangements for the care of the children, each of whom have now developed troubling presentations and behaviour, it is said, as a result of the experience of being cared for by the mother and then issues relating to the level of intervention that is justified in the case of each child, at the conclusion of the proceedings, the judge who conducted the final hearing, HHJ Davies, made care orders in respect of each of the six children. She went on to make orders authorising the Local Authority to place the younger three, D, G and M, for adoption. That order was made on 17 January 2014. In the course of the judge's conclusions, she held that the welfare of those three younger children required adoption. She, therefore, dispensed with the relevant parental consent of the mother and father. The mother seeks to appeal against the determinations made by the judge on that day.

[3] Although the application for permission to appeal was made promptly, there were delays in processing the paperwork. The matter did not come on for hearing before this court as a permission application until 10 July 2014 when my Lord Jackson LJ granted permission to appeal on a limited basis. He refused permission to the more widely based challenge that the mother sought to bring to the care plans for the children. Permission was granted in order for the full court to understand in greater detail how it was that the judge had come to make the placement for adoption orders. I will explain in a moment why that decision was necessary.

[4] First, it is appropriate to say something as to the background of the case, but given the narrow focus of the appeal, it is not necessary to rehearse all of the detail. The scale of the task of parenting these nine young children that was faced by the mother is striking. She was not only unaided by, but was thwarted by, her discharge of her duty by the choice of partners that she has made. The Social Services had been aware of the mother's difficulties from as long ago as 1999. It is plain that both Social Services and, as the children became older, the education authority noted various difficulties in relation to various of the children.

[5] In particular, one of the older children, a boy, J, now aged 12, has been the subject of concern for some years, he having at a very early age of 5 or 6 having been diagnosed as being selectively mute. He went on to exhibit extremely challenging behaviour at school and at home. But no care proceedings were issued in relation to this group of children save that in 2013 a supervision order was made with respect to J.

[6] Matters, however, came to a head at a meeting organised by the Social Services on 5 August 2013 to consider whether or not it was necessary to institute care proceedings. Against the guidance and understanding of the Social Services, the mother informed the father of the three eldest children, and he is the putative father also of the fourth eldest child, about this meeting. He attended and there plainly was a substantial altercation on that occasion with that gentleman removing the three eldest children from the Social Services' premises. The police were called. The children were brought back. They were removed again.

[7] In the middle of this, the mother was present with all of the children. It became apparent to the Social Services that the mother's anger at the events as they unfolded with respect to the adults preoccupied her to the extent that she was unable to provide any effective parenting for the children, in particular the baby, M, who on one occasion fell out of a pushchair. The level of concern of the Social Services was that on the following day, these proceedings were commenced and the children were removed to various foster care arrangements.

[8] So far as the three young children with which this court is concerned, the younger two were placed together in August 2013 in a foster home. The third youngest, D, initially was placed with some of the older children, but six weeks later she moved to join the younger two. Those three, D, G and M, have remained in that foster home since that time. Indeed, the potential for them to remain for the rest of their childhood and beyond in that foster home became progressively more of a factor in the hearing before the judge.

[9] Pausing there, any reader of the history of these children in recent times can only be struck by how lucky they were to find the couple who are now looking after them. Following the time in the mother's home, which, following the removal of the children, it has become clearer was an emotionally highly damaging environment, these three children have found a safe haven where they can be together and be looked after by two carers who have ring fenced them from the unwelcome pressures that they had been exposed to in the mother's home.

[10] It is also plain that these three young children each present a challenging prospect for any carer, both individually and together. The fact that these foster parents have stayed the course for the sake of the children and that there have not been a series of short term moves within the period of the last 12 months is of enormous benefit to the children. For my part, I cannot be as praiseworthy as is possible to be in saying how good these foster parents have been.

[11] Moving on, the court was faced with the difficult task of developing a bespoke care plan for each of these six children. It was assisted by the Local Authority. The two social workers who had carried the case had only been appointed to the proceedings less than a month before the trigger event on 5 August, but the judge was plain in her judgment in endorsing the high quality of professionalism and commitment that these two individual social workers had displayed. I for my part also would endorse that on the basis of what I have read.

[12] The court also had the benefit of expert opinion commissioned from a consultant child and adolescent psychiatrist, Dr Juliet Butler. Dr Butler had been involved with the family on two previous occasions in 2011 and 2012. For the purposes of this final hearing, she prepared a very detailed report which runs to well over 100 pages and was based upon an extensive period of interviews with adults and with some of the children and with observations of contact. In addition, the judge had the benefit of a experienced children's guardian, Mr Kenny, who also provided a substantial report for the hearing.

[13] The care plan of the Local Authority in the lead up to the final hearing had been to look for a placement for these three children together if possible, but away from the current foster home. It was accepted that because of the serious behavioural difficulties and emotionally challenging behaviour of the children, it may be difficult to find a placement for all three together and also because of the eldest child's age, now 6, she may be outside the age band typically sought by those looking to adopt. So the plan was to look for an adoptive placement for all three together for a period measured in months, but if that was not found, to prioritise the need for an adoptive placement for at least two of them, the younger two, together.

[14] Prior to the hearing, the current foster carers had not put themselves forward, certainly in any overt way, as candidates for adoption. However, during the hearing and after the conclusion of the filing of written reports, the children's guardian remained in touch with the foster carers. It became apparent on the second or third day of the hearing that the guardian had had a telephone conversation with the foster carers and that they were prepared to contemplate either being special guardians to the children or becoming their adoptive parents.

[15] Thus it was that the final care plan of the Local Authority was amended and was in the terms, first of all, that I have described that there would be a search for an adoptive placement for six months before a revision of the plan if a place to take all three could not be found. Then the care plan continued in the following terms:

"The Local Authority will explore the current foster carers as prospective adopters for D, G and M alongside the current care plan. The Local Authority will organise a meeting between the adoption family finder and the current foster carers and will fund any application for adoption by the current carers if the assessment is successful."

[16] The position of the parties before the judge was that the mother opposed adoption entirely. Her primary case was that the children should come home, but if they could not, she favoured them remaining in the current foster placement. If there was to be an adoption, she was prepared to contemplate the current foster carers as adopters, but not a stranger placement.

[17] Part of the submission on behalf of the mother at the hearing was that this new development, namely, the clarification of the foster carers' position and the potential for them to be either special guardians or adopters to these three young children, should be assessed; that the judge should hold back from making a final decision at that stage; should adjourn the placement order application until that assessment process had been concluded; and then consider the matter afresh and, if necessary, make a choice between the children staying put with a placement that was seen to be working for them and doing well or moving on for adoption.

[18] As is clear from the order that was made, the judge rejected that avenue. The judgment is short in terms of its physical compass, but within the course of the judgment the judge has drawn in, albeit on occasion by oblique reference, a lot of the detail to which she had been exposed. In terms of the younger three children, she summarises the position with respect to them, particularly relying upon the analysis of Dr Butler at paragraphs 26, 27 and 28:

"Dr Butler considered that D was the most concerning of the three younger children. She is a stressed and anxious child. Her language is sexualised. She pushed away difficult feelings and was not able to talk about anything difficult. In contact she was very watchful and worked hard to keep her anxiety under control. She has a significantly disordered attachment development. She is likely to have experienced a very angry and frightening mother. D feels quite hopeless at times and is potentially depressed. Although she has made significant changes since going into care, she is old enough to be aware of what Dr Butler described as the "family narrative". G is behaviorally and emotionally agitated. She finds it hard physically to contain herself. Dr Butler considered that she was the most anxious and physically agitated around her mother. She tries to process a lot of frightening information about her mother's emotional world. Potentially she has been traumatised in the care of her mother. M was described by Dr Butler as being "self reliant" at the age of just over one year when she came into care. Dr Butler assessed that M had been used as a comfort by K, and to some extent by the mother. She noticed that in contact M demonstrated avoidant physical behaviours to her mother, pulling away, keeping her head down. She was very watchful of her mother. She became extremely aroused when mother tickled her. Dr Butler assessed M as finding this to be intrusive and frightening. Dr Butler concluded that M is stressed within her relationship with her mother. This may indicate that she has been hit, or at least that she has witnessed anger. She has had to develop maladaptive ways of functioning. These are all risk factors for her future emotional and behavioural development."

[19] The judge then concluded her summary of Dr Butler's evidence with respect to the younger three children in the second part of paragraph 29 where the judgment says this:

"As far as D, G and M are concerned, Dr Butler thought it would be helpful if they could stay in their current placement. She would be concerned about separating them for adoption. She said that they have survived as a sibling group. They all need therapeutic work some form of play therapy. She was clear in her oral evidence that only adoption would give them the stability they need."

[20] All, save the last sentence, of that quotation is a almost direct lift word for word from the concluding paragraphs of Dr Butler's report. The key sentence for the context of this appeal is the last one where the judge records the doctor as being clear in her oral evidence that "only adoption" would give the children the stability that they need.

[21] Dr Butler's report, whilst analysing the children's position very clearly, does not actually descend to an opinion one way or the other on the issue of adoption or long term fostering or some other form of placement. All we have in this court in terms of the evidence of Dr Butler on this point is, firstly, this sentence in the judge's judgment and, secondly, a copy of counsel for the Local Authority's handwritten notes taken during the hearing which in particular obviously does not include any question and answer record of counsel's own cross examination of the doctor.

[22] In granting permission to appeal, my Lord directed that transcripts be prepared of the evidence of Dr Butler and the children's guardian, but unfortunately that has not been accomplished and is not available to this court. I will return to the consequences of that problem and the submissions that Ms Jones on behalf of the mother makes about it in a moment.

[23] The judge, having recorded Dr Butler's analysis in those terms, goes on to record in paragraph 33 the guardian's evidence. It is, in respect of the three younger children, in these terms:

"Following discussions with the Local Authority, an amendment to the care plan has been proposed which provides for the Local Authority to assess the foster carers as adopters. The guardian was clear that even if these foster carers are not approved as adopters and if it means that D has to be separated from G and M, he still considered, following his analysis, that adoption was the right and only option available for these children."

[24] That summary of the guardian's position is of note because it is in apparent contrast to the guardian's position in writing as recently as 12 January 2014, a week or so before the hearing commenced, having summarised the position of the children and the three younger children and in particular highlighted the priority that the guardian gave to the benefit achieved from their current foster home.

[25] The guardian says this at paragraph 62:

"That opinion, therefore, is, at this time, not to support the placement order application of the Local Authority naming D, G and M. The current foster carers are willing to care for all three children in the long term and have been seen as very capable of meeting the children's needs to date."

[26] Then in his recommendations, the guardian is express. He says:

"I recommend that the court does not make a placement order on naming D, G and M. However, I reserve the right to change this position until after I have heard the evidence and opinions of Dr Butler and she having read this, my final report."

[27] The judge's description of the guardian's final position in paragraph 33, which not only contemplates the children moving from the foster carers if they are not approved as adopters and contemplates them being separated but nevertheless holding that "adoption was the right and only option available for the children" is a significant clarification or change of the guardian's position. The judge in short terms accepted the guardian's analysis and which was, as the judge says at paragraph 34, "reinforced" by the oral evidence of Dr Butler which the guardian found to be "compelling". The judge simply says, "I accept the guardian's evidence and his analysis."

[28] The judge later on in the judgment, having then spent a substantial passage analysing the factual background of the threshold criteria, turned at paragraph 65 onwards to the placement application. I am not going to read the judge's analysis in its entirety into my judgment at this point. The judge looks at the pros and the cons of adoption. She stresses some advantages, which include the children remaining in their current placement if it remains as a foster care placement, notes the advantage of special guardianship if that is pursued, but she notes the disadvantage of any arrangement other than adoption which includes the real risk of the mother disrupting the placement and unsettling the children.

[29] At paragraph 67, the judge describes the advantages of adoption as being "that the children would have a secure home for the rest of their lives with no prospect of the mother disrupting it". The judge then concludes her analysis at paragraph 68 and 69:

"Dr Butler, the social workers and the children's guardian all considered these options. They concluded that, even though there is a possibility that the three children may be separated, adoption would give by far the best opportunity to the children for their welfare needs to be fully met. The mother says that the application for placement orders should be adjourned until the current carers have been assessed as adopters. I have come to the conclusion that the evidence before me is clear. Even if the current carers are not approved, adoption would be the only option for these children. It is a last resort. It is a draconian order. But the children's needs require the certainty of an Adoption Order that would give them stability. The need for the children to be aware of their birth family, their mother, their father and siblings must be taken into account when considering if it is possible to have contact with each other and with their siblings. Sadly, the evidence is clear that contact with the birth mother is a real and serious risk to the children. She poses far too great a risk. The risk is the risk of disrupting the placement and unsettling the children."

[30] The judge then concluded her judgment by endorsing a plan for contact which, for these three young children, saw a reduction of contact until the moment at which they had been matched with prospective adopters. She held that if, contrary to the plan, that was not possible for D, then D would revert to the same contact arrangement as the older children, which was to have some continuing contact with each other and with their mother. So it follows in the context of contact that the consequence of the placement orders, if they stand, is that all three of these young children will cease in due course to have contact with their brothers and sisters and with their mother if they go on to be adopted, but then obviously remain either together as a trio or at least a group of two the; younger two, G and M.

[31] Some time ago I indicated the narrow focus of this appeal and the concern expressed by my Lord Jackson LJ in granting permission to appeal. The concern is one that, on the papers, I share. It arises from the difficulty that any reader of the judgment has in understanding two matters. First of all, what it was that Dr Butler and, in turn, the children's guardian said in oral evidence which justified, in Dr Butler's case, at least a clarification of her view that adoption was the only option and, in the guardian's case, a change from his position of not supporting the placement applications to holding that in any circumstances adoption was the only order for these children. The second related difficulty that any reader of the judgment has is understanding what it was that the judge thought about these matters as leading in her view to making these final orders, particularly in the context of the outstanding, albeit recently identified, need to assess the foster carers. Rhetorically, the question is asked: why was it necessary to make the final orders on this occasion?

[32] The mother was, in effect, a litigant in person before my Lord, although she had the great benefit of counsel, Mr Elliott, who had, on the basis of Direct Access instructions, crafted the grounds of appeal and a skeleton argument and appeared to present the oral argument before my Lord. Since then, the mother has reverted to the status of an unrepresented litigant in person until last week when legal aid was granted to her former solicitors. They have been able to instruct Ms Maggie Jones of counsel who has prepared her own helpful and clear skeleton argument and presented the arguments before the court today. In addition, we have been assisted by Ms Phillipa Jenkins, counsel for the Local Authority, who did appear below and Ms Sue Bradley, counsel for the guardian, who did not appear below.

[33] For my part, it was only on reading the Local Authority's skeleton argument, which arrived with the court yesterday, that I became aware of recent developments. In short, they are that relatively shortly after the hearing before the judge, the foster carers indicated that they were not in a position to put themselves forward either as adopters or special guardians for these children. They are prepared to be considered as long term foster carers for all three or, if it is the case, for one or two of them, but they are not willing to be seen as adopters.

[34] The second development is that the Local Authority have indeed identified a family who are prepared to take all three of the children together as prospective adoptees. The proposal that the three should go to these strangers, who are called Mr and Mrs X, would have gone before the Local Authority's adoption panel for a matching decision this week. That has been put back because of this appeal hearing, but is now booked for 10 September. In the meantime, arrangements have been made for the children to move there if the matching is successful.

[35] News of this development, according to Ms Jones, came to the mother as it did to this court; namely, in the course of the last 24 hours. The Local Authority disputes that and asserts that the mother was informed at a slightly earlier date, but be that as it may, the landscape insofar as it existed before the judge has altered. For my part, I take on board that information, but I have conducted my analysis of the mother's appeal as it would have been had I not known that information. I have focused upon the case as it was before the judge and the judge's judgment.

[36] Ms Jones in her skeleton argument helpfully distills the points down to the following submissions. First of all, she submits that the evidence from Dr Butler and the guardian prioritised the need to hold on to the stability of the good placement of the foster carers and that should have been a priority with which the judge engaged.

[37] Secondly, she submits that on the basis of the case as it was before the judge, even with the revised care plans that the Local Authority had produced, the proper course for the judge to take was to adjourn making the final decisions until the position of the foster carers had been clarified.

[38] Thirdly, she submits that it appears that Dr Butler and the guardian changed their opinions during the course of the hearing, but, and I am quoting from the skeleton, "there is no clue in the judgment as to reasoning behind the apparent change of mind".

[39] Finally, Ms Jones submits that the judge has failed to set out the judicial analysis and her reasons for agreeing with Dr Butler and the guardian and making these final orders at any stage in the judgment.

[40] The appeal is opposed by the Local Authority and they are supported in that opposition by the children's guardian. In particular, it is of note, insofar as the guardian's oral evidence is in question, that Ms Bradley makes no submissions other than to support the judge's summary of what the guardian and Dr Butler had to say in oral evidence.

[41] I propose to take the points that Ms Jones seeks to make in an order other than the one in which she has presented her arguments; first of all taking the lack of evidence; secondly looking at the lack of reasons; and thirdly the decision to make the final orders rather than to adjourn the case.

[42] If the judge's judgment were the only material available, it is a document upon which it is hard to rely in terms of gaining any detail as to what it was that Dr Butler said about adoption and why it was that the guardian changed his opinion. The court has made efforts to try and obtain transcripts, but they have come to nothing. The note of counsel takes matters so far, but does not provide in anyway a total answer. Yet the appeal has to be determined. In particular, there is now a pressing need for the appeal to be determined because of the prospect of the children being matched, if the appeal is unsuccessful, with these prospective adopters. I considered countenancing an adjournment to obtain a transcript, but to my mind, that is not necessary.

[43] Short though it is in terms of detail, the judge's judgment is absolutely clear that the two experts, Dr Butler and the children's guardian, spoke in very precise terms as to the option of adoption being the "only" option for the children and that that was the case even if the children could not stay with their current foster carers and even if they had to be separated in some way to achieve adoption or one, two or three of them.

[44] The judge was the person in the court room who observed the evidence as it unfolded who then produced this tightly worded judgment. In the moments immediately after the giving of the judgment and in the day or two that followed, no party made any complaint as to the accuracy of the judge's summary of the expert and professional oral evidence that she had heard. The grounds of appeal that were crafted on behalf of the mother in February make no mention of an error on the part of the judge in recording the oral evidence of Dr Butler and the guardian. As I have already mentioned, Ms Bradley on instructions makes no criticism of the judge's summary.

[45] So while it does seem to me that although this court lacks the precise detail of the actual words used by these two key witnesses, we are entitled to take as the baseline the judge's summary of what was said. It is absolutely clear in the terms that I have described. So having gone into the matter in more detail than was possible on the occasion that my Lord considered the permission application, I am satisfied that the judge must have had the clear professional oral evidence in the terms that she has summarised, which, in turn, enabled her to consider the options for these three children.

[46] I therefore turn to the lack of reasons given in the judgment. This court has from time to time had to consider the absence or submitted absence of full judicial reasoning in cases across the civil justice spectrum, but perhaps particularly in the context of family justice.

[47] There are a number of relevant authorities, but the most convenient is that of Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, the decision of this court presided over by Thorpe LJ and Bodey J in 2003. They had the benefit of a judgment given one year earlier by my Lady Arden LJ in the case of Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736. In the course of that judgment, my Lady considered the applicability of the ordinary civil authority English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 to family cases. My Lady held that there was no distinction to be drawn on the question of principle as to the need for the requests to be made to judges at first instance to amplify their reasons in family cases just as in civil cases.

[48] The law report is available to all. I do not intend to lengthen this judgment by repeating what my Lady said in Re T, save to quote from paragraph 41 to this extent. My Lady said this:

"It would be unsatisfactory to use an omission by a judge to deal with a point in a judgment as grounds for an application for appeal if the matter has not been brought to the judge's attention when there was a ready opportunity so to do. Unnecessary costs and delay may result."

[49] That approach was unsurprisingly endorsed by Thorpe LJ in the course of his judgment in the later case of Re B. He in turn at paragraph 11 said this:

"No doubt I have hesitated as to how best to respond to these submissions. I regard a number of the criticisms of the judgment as ignoring the seniority and experience of this judge. No doubt a judge recently appointed or only recently inducted to public law would not reach the milestones and signposts to ensure that no essential stage of the process is overlooked or truncated... But there is a huge virtue in brevity in of judgment... The more experienced the judge, the more likely it is that he may display the virtue of brevity. Certainly it is not incumbent upon the judge to adopt some formula of a judgment or simply to parrot statutory provisions. For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions?"

[50] The judge in this case, as I have described in the quotations from her judgment that I have set out, gives short reasons and, in effect, identifies her reasoning as being at one with that of Dr Butler and the children's guardian.

[51] They in turn conclude that the only option is adoption. If a true reasons challenge was to be mounted in relation to this judgment, the proper course to be adopted would have been to go back to the judge at the permission to appeal stage before the first instance judge, which I do not think was undertaken in this case, and to raise the reasons challenge and to invite the judge to enlarge upon the reasons that she has given. That simply was not a step that was taken here. Insofar as the mother was a litigant in person, she is not to be criticised for that, but the reality is that step was not taken. It was not taken at a later stage when, for a time, the mother had the benefit of some legal representation.

[52] It is always possible for this court to put the matter back, as was the outcome in the case of Re T, but for my part in preparing for this hearing I have read through quite a deal of the paperwork available to the judge and, in particular, the report of Dr Butler. That is in very striking terms, in particular with regard to these three young children. Dr Butler describes each of them in terms which would give rise for true concern as to their ability to have any positive future if in any form of relationship with their mother or, sadly, their older siblings.

[53] Variously they are described as having significant disordered attachment, to being anxious and angry and to struggle to interact with each other and with adults. They are unnecessarily autonomous, self contained, looking out for themselves and keeping their head down in terms of the way in which they go about their everyday life.

[54] So far as the middle child, G, is concerned, Dr Butler says that she has a disordered attachment development:

"as a result of having to manage in this very complex (family) system where you have to learn a lot of skills related to self care very early on. Of the three younger children, she was the most anxious and physically agitated around her mother. I think she is trying to process a lot of frightening information about her mother's emotional world which is something which she appears preoccupied with and potentially she has been traumatised within the care of her mother."

[55] That was a child who was aged 3 when she left her mother's care.

[56] So far as the youngest child, M, is concerned, Dr Butler says this in the course of a longer summary:

"She is described as a child who does not show any pain if she hurts herself physically. Again, this would indicate that trying to elicit care for an injury was not helpful, so children learn to suppress their physical pain."

She was aged 1 and half at the time she left her mother's care and yet she had developed that reaction.

[57] It is that detail which is to be found in Dr Butler's report and in the social work statements which, to my eyes, make total sense of Dr Butler's recommendation to the effect that only adoption would be justified in the case of these children as being the only option to provide security for them away from the adverse and harmful influence of their mother and, indeed, the interaction with the older siblings.

[58] For my part, I am content that, shortly stated though they are, the judge's reasons are to be found in the detail that she was exposed to in the written material and in the course, no doubt, of the oral evidence that sat behind the bottom line conclusions of Dr Butler and the guardian which she rehearses.

[59] So far as contact between the sibling groups is concerned, the matter is slightly different. The judge simply does not mention this in her judgment. In an adoption case, often the potential for contact between siblings is as important, if not more important, than contact with the parents. As a matter of human fact, the time that one is a brother or a sister would normally be a longer length of time than one is a child or a parent, yet the matter is not mentioned by the judge.

[60] Again, I have gone back to the detail that lay behind the expert evidence. It is plain there that each of the older children had more developed, more difficult and more entrenched behavioural difficulties than the younger three and were obviously going to continue to be in touch with their mother through contact and with each other. The potential for a child moving on to adoption, if adoption was justified, in being disrupted by any form of direct contact with these siblings is, on ordinary social work and family justice principles, unlikely to justify continuing sibling contact. So although the judge does not deal with the point, I cannot see there is merit in putting the matter now back to the judge for further reasons to be given.

[61] If I turn to the final element of Ms Jones' challenge; namely, the submission that the judge should have stepped back from making a final decision and adjourned the decision to allow the foster carers to be assessed.

[62] There will be some cases where further time in reconnaissance by the court is justified. One such is the decision of this court handed down in the case of Re A (Children) in December of last year, neutral citation [2013] EWCA Civ 1611. In that case, the judge was only prepared to countenance adoption for two boys provided that a number of very strict perimeters were met. The judge listed them in the court order and effectively made them conditions of the placement for adoption order. The judge held that if those conditions could not be met, then adoption was not in the best interests of the boys and they would be better cared for in the context of foster care. In the appeal, Laws LJ, Gloster LJ and I held that it was impermissible for the court to add any conditions to the granting of a placement for adoption order. We moved on then to consider, as we characterised it, the problem of "what is a judge to do" in such circumstances? We gave the answer to that at paragraphs 37 to 43 of our judgment.

[63] In short and in summary, the answer is that if the court is in the position that the judge was in that case, Re A, of only contemplating adoption in very narrow circumstances, then it was impossible for the judge to hold that she was satisfied that the terms of the Adoption and Children Act 2002 section 52(1) were satisfied; namely, that "the welfare of the child requires the consent (of the parent) to be dispensed with". If, in the context of the modern case law, adoption should only be ordered if "nothing else will do" where the court readily contemplates in the context of that case that foster care may "do" then the test may not or would not be satisfied.

[64] In the present case, the circumstances before the judge were different. She was not in the explicitly difficult judicial position that HHJ Kushner had been in Re A. The judge in the present case was plain that the expert and professional evidence was to the effect that only adoption would do for these three children. That was also the judge's conclusion. Therefore, in my view, as a matter of structure and of law it would not have been open to the judge to contemplate the court carrying on to oversee the assessment process of the foster carers if a placement for adoption order was to be granted at the end of the day.

[65] The working out of the plan for the assessment of the foster carers and the development of an alternative plan if they were not acceptable as long term carers for the children were matters and should be matters for the Local Authority under the placement for adoption order and the care order and not for the court. So as a matter of structure, I am not persuaded by Ms Jones' submissions.

[66] In any event, we would only be able to intervene and overturn the judge's conclusion on this point if we were satisfied that the judge was "wrong" and that she had acted in a disproportionate manner in making a placement for adoption order at this stage without proper regard to the Article 8 rights of the children, which may well include the relationship they have with the current foster carers. It simply is not open, in my view, to the mother in this case to sustain that submission.

[67] The evidence before the judge was that adoption was what was required. It was necessary to take a decision at that stage partly to avoid delay, but partly to achieve clarity. On the evidence before the judge which she accepted, no other outcome other than the adoption of these children was justified unless that could not be achieved. Therefore, there was no benefit for the children in holding back from making a final order at that stage. It was the only tenable outcome of the case on the evidence and on the findings of the judge. So even within the compass of the appeal as it was on paper before my Lord when he gave permission and this court before we had the extra information from the Local Authority, I would refuse the appeal on that basis.

[68] Now that it is apparent that the foster carers have clarified their position in a way that is adverse to the arguments that Ms Jones now makes, she sensibly and candidly accepts it makes the position harder for her to mount the appeal on the submissions that she had intended to make. For my part, that is simply news in terms of fresh material that I have heard about. It does not alter the clear view that I have formed in any event, which is that this appeal must fail on each of the bases on upon which it has been argued. I would, therefore, dismiss the appeal.


[69] I agree.

[70] I wish to add brief comments on one procedural issue. From time to time when this court grants permission to appeal, it directs that the evidence of a particular witness be obtained. If the appeal concerns the adoption of children, it is by definition an urgent matter and the hearing will be listed at an early date. Indeed, as here, the court granting permission to appeal may direct an expedited hearing.

[71] In such a case, the parties must use their best endeavours to obtain any transcript of evidence which is required as soon as possible. If, as here, the transcript cannot be obtained in time, then solicitors and counsel should co operate in producing a composite note of the relevant evidence.

[72] That did not happen in this case. Instead, part way through the hearing today, counsel for the Local Authority stood up and informed us that she had a note of the evidence given by Dr Butler and the guardian. In those circumstances, the hearing was adjourned for 40 minutes so that counsel's note could be photocopied and considered by all present. I say at once that counsel's note of the evidence is clear and extremely helpful, although it does not include her cross examination of the two witnesses. I am grateful for the copy of that note which we have received.

[73] Nevertheless, in any future case where a necessary transcript of evidence is not obtained in time for the hearing, then any available notes of the relevant evidence must be circulated in advance to all parties and the court. That will avoid any risk of ambush. Also, it will avoid the need for an adjournment in the middle of the hearing of the appeal.


[74] I agree with both judgments.

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