H (A Child), Court of Appeal - Civil Division, December 11, 2015, [2015] EWCA Civ 1284

Issuing Organization:Civil Division
Actores:H (A Child)
Resolution Date:December 11, 2015

Case No: B4/2015/2384

Neutral Citation Number: [2015] EWCA Civ 1284



Ms Justice Russell


Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11/12/2015

Before :





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Re: H (A child)

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Mr James Turner QC and Miss Madeleine Reardon (instructed by Osbornes Solicitors) for the Appellants

Mr Andrew Bagchi QC and Mr Martin Downs (instructed by Brighton and Hove City Council Legal Services) for the First Respondent

Miss Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells Solicitors) for the Second Respondent

Miss Catherine Jenkins (instructed by Wannops Solicitors) for the Third Respondent

Mr Jonathan Bennett (instructed by Railton Solicitors) for the Fourth Respondent

Hearing date : 22 October 2015

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JudgmentLord Justice McFarlane :

  1. These proceedings concern a girl, W, who was born on 9th November 2012 and is therefore now aged 3 years. W's welfare has been a live issue before the Family Court, save for a short gap, from the time that she was one month old. On 8th December 2012 the local authority issued an application for a care order with respect to her. The case has a complicated, protracted and unattractive procedural history which culminated in a full welfare hearing before Ms Justice Russell in May 2015. By that time W had been living with prospective adopters for 15 months and the issue was whether she should be adopted by them or return to live with her father and three siblings. The outcome of that hearing, which is described in a judgment handed down on 22nd July 2015, is now the subject of the present appeal.

  2. W is the youngest of four children born to the same parents. The older children, X, Y and Z, born respectively in 2003, 2007 and 2009 have, following the parents' separation in 2012, remained in the care of their father, Mr C. Tragically the children's mother has long term mental health difficulties which, it is accepted, render her unavailable to take on the care of her children.

  3. W spent the first 8 days of her life in hospital with her mother. Upon discharge, W went to the family home and into the care of her father who was already caring for the older three children. One month later W was removed from the father's care under an interim care order made on 18th December 2012 because of concern that he was under significant pressure and that the introduction of the baby into the household had compromised his ability to care for all four children. W then remained in foster care until the conclusion of the care proceedings on 19th September 2013 at which point District Judge Gamba made a residence order to the father with respect to X, Y and Z coupled with a supervision order, but made a full care order with respect to W and granted the local authority an order authorising them to place W for adoption. Thereafter W continued to reside with the same foster carers until 17th January 2014 when she was placed with ``Mr and Mrs A'' for adoption. At that time, which is now 22 months ago, she was aged 14 months and she had last seen her father in October 2013 when she was less than a year old.

  4. On 14th May 2014 Mr and Mrs A issued their application to adopt W. That application seems to have triggered a response from the father who instructed solicitors and a barrister who in turn made an application on his behalf for leave to oppose the making of an adoption order under Adoption and Children Act 2002, s 47 [``ACA 2002'']. That application was dismissed by DJ Gamba. The father and his legal team then sought to appeal that decision and also to re-open an earlier application for permission to appeal against the original care and placement order that had been made by the father in person in October 2013, but that had not been prosecuted by him following an early refusal of permission on paper by a circuit judge.

  5. The father's two applications for permission to appeal were heard by HHJ Farquhar on 12th November 2014. Permission to appeal against the September 2013 orders was refused, on the basis that the application was out of time, but the appeal on the issue of opposition to adoption was successful. Following a re-hearing on that issue the father was given leave to oppose the adoption application and the contested adoption was the primary matter set down for determination before Russell J at the hearing in May 2015.

  6. Notwithstanding the fact that W's welfare was to be considered afresh at the May 2015 hearing, the father sought to challenge HHJ Farquhar's decision to refuse to extend the time for appealing against the original care and placement for adoption orders. Following a hearing before this court (McFarlane and Gloster LJJ and Sir Robin Jacob) on 6th May 2015 the father's appeal was allowed for the reasons set out in a judgment circulated in draft to the parties and to Russell J prior to the start of the May hearing but handed down on 11th June 2015 (Re H (Children) [2015] EWCA Civ 583).

  7. The effect of this court's decision in allowing the father's appeal is itself a matter of controversy within the present appeal and it is therefore a matter to which I will return in detail in due course. The relevant parts of the Court of Appeal order, as agreed between the parties following the conclusion of the appeal hearing, are as follows:

    ``3. The appeal against the welfare decision made by District Judge Gamba on 19th September 2013 in respect of W is allowed and is remitted to Ms Justice Russell for re-hearing;

  8. The care and placement orders made in respect of W on 19th September 2013 are hereby set aside;

  9. W is placed in the interim care of the first respondent local authority until further order;

  10. Pursuant to s 42 (2)(a) of the Adoption and Children Act 2002 the prospective adopters are granted leave to make the application for an adoption order;

  11. For the avoidance of doubt, the application for an adoption order issued by the prospective adopters on 11th May 2014 shall be treated as a valid adoption application and also as a valid notice of intention to adopt W pursuant to s 44 (3) of the said Act.''

  12. Russell J's conclusion, as described in her judgment of 22nd July 2015, was that W should be removed from the care of Mr and Mrs A and returned to the care of her father. On the basis that no party sought a care order at that stage, but that there was a need to provide some form of legal structure over the transitional arrangements, W was made a ward of court until the implementation of the re-unification plan was completed. Russell J refused permission to appeal and declined to grant a stay. The next day, 23rd July, an application for permission and a stay were made to this court; both were granted by me after consideration of the papers on that day.

    Hearing before Russell J: An overview

  13. In order to make sense of the grounds of appeal, to which I will turn in a moment, it is necessary to give a brief overview of the progress of the hearing before Russell J in May 2015. At the start of the hearing the position of the parties was as follows. The father, supported by the mother, argued for the adoption application to be refused and for W to be rehabilitated into his care so that she would grow up living with him and her three full siblings. Mr and Mrs A's application for adoption was supported by the local authority and the children's guardian, Mr Richard Madge. Expert evidence had been commissioned for the hearing from a clinical psychologist, Dr Willemsen and an independent social worker, Mark Hatter. In his written report, Dr Willemsen indicated that he regarded this to be a finely balanced case. Dr Willemsen was not instructed to provide an opinion on the ultimate issue in the case, his opinions, however, on attachment and other issues favoured W remaining with Mr and Mrs A. Although not instructed to provide an opinion as to W's welfare, Mr Hatter had in fact done so in his written report and he too recommended that W should be adopted by Mr and Mrs A.

  14. During the hearing the position of the parties and the recommendation of the experts and guardian significantly changed. Dr Willemsen, who of those three professionals gave evidence first, considered that the Court of Appeal decision was important in the context of its impact on W when, in some 10 years time, she may come to know of it. In consequence he changed his opinion to one in favour of W going to live with her father. Mr Hatter followed Dr Willemsen into the witness box. He too considered that the Court of Appeal decision would have an adverse impact upon W if she were to remain in the care of Mr and Mrs A. That factor, coupled with the fact that ``the expert on attachment'', as he described Dr Willemsen, had changed his recommendation, led Mr Hatter to alter his opinion so that he too favoured placement with the father. Finally, on the third day of the hearing, the children's guardian filed a supplemental report in which he also indicated a change of opinion and accepted that W should be reunified with her birth family.

  15. In addition to the expert/professional witnesses I have mentioned, the judge also heard oral evidence from the social workers, the father and Mr and Mrs A.

  16. As I have indicated, Russell J concluded that the adoption application should be refused and that steps should be taken to rehabilitate W to her father's care.

    Grounds of Appeal

  17. Miss Madeleine Reardon, who appeared for Mr and Mrs A before Russell J, pleaded the appeal on five grounds which in summary are:

    i) In a ``finely balanced'' case, where it was incumbent upon the judge to keep an open mind, Russell J displayed judicial bias by stating a clear and firm conclusion as to the outcome of the proceedings from day one and, as a result, the appellants did not receive a fair hearing...

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