Case No. GL20P00553

(Babies Relinquished for Adoption [2016] EWHC 440 (Fam); [2016] 4 WLR 40, Baker J (as he then was) considered two cases of babies who had been relinquished for adoption. In one of the cases there was a clash between the wishes of the parents on the one hand which were for the child to be adopted in England and the Hungarian authorities and of the child’s Guardian on the other, which were for the child to be sent to Hungary and placed for adoption there. Baker J concluded that in a case where the parents were consenting to an adoption, the approval of the court did not depend on the local authority or the court concluding that ‘nothing else will do’, because the degree of interference with family life rights was less than when the parent child relationship was severed against their wishes. In paragraph 55 he stated; “Instead, they must approach the case by applying section 1 of the 2002 Act. making sure that they give paramount consideration to the child’s welfare throughout his or her life, allocating such weight as they consider appropriate to the comprehensive list of factors within section 1(4). In such cases, the local authority and the court must consider the parents’ wishes that their child be adopted in the context of all those factors, including the child’s background, the likely effect on the child of having ceased to be a member of the original family and the ability and willingness of any of the child’s relatives to meet the child’s needs. As in the case of step-parent adoptions, the manner in which the statutory provisions are applied will depend upon the facts of each case and the assessment of proportionality”. In paragraph 56 he stated “It follows therefore that in all adoption cases – non consensual and consensual – the local authority is under an obligation to carry out a thorough analysis of the realistic options for the child as highlighted in Re B-S. Indeed a thorough analysis of all the realistic options should surely be carried out in all cases where a local authority is making plans for the child’s future”. 22.In Re A, B and C (Adoption: Notification of Fathers and Relatives) [2020] EWCA Civ 41, Peter Jackson LJ reviewed the statutory material relating to children whose parent or parents wish them to be relinquished for adoption. At paragraphs 89 onwards, he set out the principles which should apply when a parent wishes to relinquish a baby confidentially without notice to other family members. One particular factor in the balancing exercise to be conducted is the likelihood of a family placement being a realistic alternative to adoption. At paragraph 89(4) he stated “This is of particular importance to the child’s lifelong welfare as it may determine whether or not adoption is necessary. An objective view, going beyond the say-so of the person seeking confidentiality, should be taken about whether a family member may or may not be a potential carer. Where a family placement is unlikely to be worth investigating or where notification may cause significant harm to those notified, this factor will speak in favour of maintaining confidentiality, anything less than that and it will point the other way’. Applications for leave to apply for orders under section 8 and/or 14A CA 1989 23.S.10(9) of the Children Act 1989 provides as follows: “Where the person applying for leave to make an application for a section 8 order is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to— (a)The nature of the proposed application for the section 8 order; (b)The applicant’s connection with the child; (c)Any risk there might be of that proposed application disrupting the child’s life to such an extent that he would be harmed by it; and (d)Where the child is being looked after by a local authority— (i)The authority’s plans for the child’s future; and (ii)The wishes and feelings of the child’s parents.” 24.The leading authority with respect to such applications is Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737 Black LJ (as she then was) made clear that neither the paramountcy principle in s.1 CA 1989 nor the welfare checklist apply to such applications. In summary, she stated as follows:- (a)Section 10(9) does not contain a test, and by picking out some factors to which the court should have particular regard it acknowledges that there may be other factors that a court has to consider, which will vary infinitely from case to case; (b)One factor will be the prospects of success of the application that is proposed, as leave will not be given for an application which is not arguable; (c)The fact that a person has an arguable case may not necessarily be sufficient to entitle him or her to leave under s 10; as there may be situations in which, when the judge exercises his or her discretion, balancing all the relevant factors, the presence of an arguable case is outweighed by the other factor or factors that carry weight in a particular case; (d)There is room in cases concerning children for applications to be checked at a very early stage and without wholesale investigation. The court has a broad discretion to conduct the case as is most appropriate given the evidence involved and the evidence available; (e)There is no absolute entitlement to an assessment with a view to caring for a child (see Re T (Residential Parenting Assessment) [2011] EWCA Civ 812);(f)It is for the judge to ensure in each case that there is a fair determination of the claims of the parties and the issues in the case. The prospects of a grandparent taking over the child’s care must always be looked into carefully because it can be greatly to a child’s benefit to be kept within the family by such a placement. There are, however various levels of investigation into the possibilities which range from a full hearing with reports and oral evidence, to the other at which a careful but limited examination of the situation may disclose overwhelming reasons why care by a grandparent is obviously not an option; (g)S 10(9)(c) is directed at the risk to the child of disruption occasioned by the proposed application rather than the making of any order arising from it. Delay occasioned by or associated with the application is an obvious source of disruption and harm, and must properly be considered under this heading. 25.All the parties are agreed that I should consider the two applications, that is the local authority application for a declaration that it is not obliged to carry out an assessment of the paternal grandmother and her application for permission under s10(9), together. They are also all agreed the decisions are not governed by the paramountcy provision in either the CA or ACA. H’s status 26.H was placed with the current carers (who are ‘foster to adopt’ carers) at the age of three weeks (as permitted by s18(1). At the end of February the mother gave her formal written consent to adoption pursuant to s20 ACA. The father attended but as he does not have parental responsibility his formal consent is not needed. At this point pursuant to s19 C’s legal status became that of a child ‘placed for adoption’. This means that the local authority has parental responsibility, which is shared with the prospective adopters pursuant to s25 ACA. The submissions of the parties 27.The local authority, mother and guardian all submit that the local authority application should be granted, and the grandmother’s application should be dismissed. The father has not sought party status in these proceedings, nor has he applied for parental responsibility, but it is abundantly clear that he strongly supports the mother’s position. 28.Central to all these arguments is the serious disruption that they argue would follow in the event of the grandmother being granted permission to make an application for a child arrangements order. The litigation would take a considerable period of time (the time required for an assessment for a Special Guardianship order, the impact of s14A and more recent Family Justice Council guidance are all cited). There would be a number of court hearings and there would have to be consideration of an order for contact. Although the prospective adopters accepted H into their care in the full knowledge that there could be further applications, the Guardian does raise the possibility that they may decide they no longer wish to care for H if they are faced with the prospect of the grandmother being assessed as a Special Guardian. Any further litigation is likely to cause even more discord within the family than there is already. Mr. Storey QC and Ms Sparrow for H state that there is every likelihood that the mother and father will not cooperate with further assessment. 29.Mr. Goodwin QC and Mr Miller point out that the extent of the conflict in this case is very significant. They argue that the parents’ reasons for not wishing H to be cared for by the grandmother are sound and reasonable, but in any event it is not so much what they say but the fact that they are saying it which is so important. The conflict is relevant not only to the question of the disruption that they argue would be caused to H as a result of the proposed application, but also to the prospects of success of the proposed application itself. 29. Although it is acknowledged that a parent does not have a right of veto concerning the placement of their child with a family member, or to put it another way, a right to have their child adopted, there is considerable focus in all the arguments as to the extent to which the grandmother’s proposals are, or would be, an interference with the Article 8 rights of the parents to engage in the ‘fast track’ process provided for in the ACA so that the mother can completely relinquish her parental responsibility in favour of assessed and matched adopters. Mr Goodwin and Mr Miller set out in some detail the statutory provisions which enable a parent to consent to their child being placed for adoption and the effect upon their own ability to apply for a child arrangements order now that H is formally placed for adoption within the meaning of s 19 ACA. 31.It is argued that the prospective adopters have Article 8 rights themselves, and this must be so by dint of the fact that Baby H has been living with them for over six months and they now have parental responsibility albeit this is shared with the local authority. It is submitted that the grandmother, who has never met H (although of course this is no fault of hers at all), does not have existing Article 8 rights. Mr Sampson QC and Dr. George for the local authority argue that the case law following Marckx v Belgium such as TS and JJ v Norway; Case 15633/15 focuses on the practicalities of a ‘close relationship created by frequent contact’. 32.Ms Henke QC and Mr. Halliday on behalf of the grandmother point out how committed she had been to her grandchild from the moment she was aware of the birth. Indeed Ms Henke is right to say that there is nothing more that this grandmother could have done. In the first instance she tried to persuade the parents to reconsider their proposal to place H for adoption and demonstrated her willingness to care for H, either in the short term until their lives were more settled and they were ready for the responsibility of parenthood, or in the long term. They had a meeting to discuss their respective views but ultimately no agreement was achieved. The grandmother consulted a solicitor, and issued her application on 28th September. Such was the parents’ objection to her application that they would not agree to the local authority discussing the baby with her, and it was only on 15th December that it was accepted that the local authority should be permitted to gather information as to the grandmother’s health position, and an overview of the dynamics in the paternal family. 33.The grandmother is not working and is able to offer herself as a full time carer. She has brought up two sons successfully. She lives in her own home and has sufficient financial resources to care for H. She is aged 58, and although her physical health is not perfect (she suffers from some high blood pressure and has some issues with her weight) it is sound. She has suffered from episodes of depression and is currently taking a reducing dose of Citalopram for anxiety. If this was a case where the parents were in agreement with her wish to care for H there would be no safeguarding or other issues to prevent this being a suitable option. 34.In those circumstances, Ms Henke and Mr. Halliday urge upon me the necessity of a full assessment of the grandmother. If this does not happen and her application under s10(9) is dismissed there is only one option for baby H and that is adoption. A decision now will deprive the court of the ability to analyse the competing options, and in fact would amount to a process of linear reasoning which is impermissible in accordance with the authorities. Given the life-long consequences for H if adopted, the change of status and the interference with H’s Article 8 rights, it is imperative that the court obtains the information that an assessment would provide as to the grandmother’s proposals. Although the views of the parents must be taken into account, Ms Henke points out that they are not entitled to veto consideration and assessment of wider family members. In A, B and C, one of the primary reasons that family members should be informed about the birth of a child unless there is good reason to the contrary, is so that placement within the family can be considered despite the wishes of the parent or parents. 35.Ms Henke and Mr. Halliday submit that the court should not accede to the gloomy prognosis as to the outlook for baby H if placed with her without the fullest possible assessment. She has an arguable case that should be fully explored. Such exploration, and the consequent delay, would not prejudice H’s welfare for H will remain with the same carers until any final decision. If the ultimate decision is that adoption is in H’s best interests and is necessary and proportionate, the placement will continue. Accordingly, the applications that the grandmother wishes to make will not disrupt H’s life. Discussion and conclusions 36.This is a very anxious and sensitive case for all involved, and there is no doubt that the parents and grandmother are genuine in their wish to do the best for H. Like so many other people, the grandmother had looked forward to becoming a grandparent. When she found out that the proposal was for H to be adopted she was instantly concerned that the parents were reacting to their immediate circumstances and would live to regret the decision they had made. She offered her services on a temporary basis, and then permanently. She is prepared to commit herself fully to bringing H up. 37.On the other hand, the mother and father were profoundly shocked last year to find out that the mother was 34 weeks pregnant, and were completely unprepared for the responsibility that parenthood requires. They made a decision at an early stage (before the birth) that the best thing for H was to be placed for adoption. The mother spoke to her own parents about it, and they supported, and continue to support her in her decision. The father on the other hand (perhaps knowing of his mother’s likely response) first of all told the social worker that she too agreed with their decision. This of course was not so. 38.Since those early days, the position of the parties has never wavered. Their view about what is best for the baby has remained the same, if anything it has become more resolute. The father is very angry and upset at his mother’s actions, and for the moment he is not on speaking terms with her. The mother too is very distressed. 39.I will, as has been suggested, look at the applications together. Just as parents do not have a right of veto of family members, or a right to have their child adopted, a family member does not have a right to an assessment, nor, without being granted leave, a right to make an application for the child to live with them. I have to make my decision in circumstances where, if the grandmother is not assessed or granted leave to apply, Baby H will be adopted. As Ms Henke states, if this happens, at the time of the adoption application the court will have no competing option to consider, despite the need to consider the welfare checklist under s 1(4)(c) and (f) ACA. 40.Looking at the factors as set out in section 10(9) CA, the first two can be dealt with swiftly. The nature of the proposed application is for either a Special Guardianship or Child Arrangements order so that H can live with and be brought up by the grandmother. The grandmother has a close connection with H regardless of whether or not she has Article 8 rights. This is obvious as a matter of fact and also because it is the very connection she has with H that drives her and gives her the commitment she has. 41.The question of possible disruption to H’s life caused by either of the proposed applications is one of the central issues in the case. Any litigation would inevitably be lengthy and time consuming. It would also be bitterly contested by the mother (and the father, albeit through her), so that an already fraught situation would become worse. Although there is no evidence that the current carers will feel unable to continue with the placement during the course of litigation, the general level of uncertainly that an application would cause to them and which could be transmitted to H, cannot be ignored. The Guardian suggests that they may require additional support during such a time. There is likely to be consideration as to whether or not there should be contact. I note that in the mother’s first statement she says this ‘I know that if the court does order an assessment of [the grandmother] this may force my mother to make a different decision over baby. My mother is clear that she supports my decision, however if the paternal grandmother is to be assessed then she may feel she may have no choice but to ask for an assessment’. If this happened, there is a risk of yet further disruption because there would be competing claims. All of this is likely to cause H harm, because although H is very young the insecurity of those who are responsible for caring could well have an effect. The fact that the prospective adopters have taken this on willingly does not mean they would not find the whole process very difficult or that the effect upon them should not be considered. 42.H still remains a looked after child, and therefore I must have regard to the wishes of the parents and the plan of the local authority. The wishes of the parents could not be more clear cut and that is for H to be adopted. They made this decision before H was born and over many months this has not wavered. The parents have taken steps to try and limit their knowledge of H by trying not to know the name and sex. They have expressed views about the sort of family that they would wish for H to have and have expressed satisfaction that H is being well cared for. Although neither of them feels able to care for H, there is nothing about these parents to suggest that they have not got the best interests of their child at heart. As Baker J stated in Re JL and AO “It might be thought that giving up a baby for adoption is a dereliction of responsibility. In many such cases – perhaps most – the truth will be very different. Anyone who has read the accounts of persons who have given up a baby in those circumstances will soon come to see that it is usually a decision taken only after a great deal of thought and anguish, by parents who realise that they cannot look after the baby and wish to give the baby the best chance to grow up in a loving home”. 43.Not only do both these parents consider it is in H’s best interests to be adopted, but they specifically do not think that the grandmother is the right person to bring H up. They have given reasons for this – that the grandmother is a single parent with limited means and has suffered from some episodes of depression. They believe H’s life chances would be better if placed with an adoptive family, assessed and matched by the local authority. Ms Henke suggests that the parents’ wishes for H to have something different amounts to some sort of social engineering. This point would have a better foundation if it was the local authority or the court which was making this assertion, but it is somewhat different when advanced by H’s parents. The local authority on consideration of the parents’views has given effect to them in their decision making by allowing H to be placed with ‘foster to adopt’ carers with the effect of H becoming formally placed for adoption upon the mother giving her written consent. 44.As stated by Black LJ in