C (A Child)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Arden,Lord Justice Aikens |
| Judgment Date | 25 April 2013 |
| Neutral Citation | [2013] EWCA Civ 431 |
| Docket Number | Case No: B4/2012/0492 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 April 2013 |
[2013] EWCA Civ 431
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
Her Honour Judge Redgrave
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby, President of the Family Division
Lady Justice Arden
and
Lord Justice Aikens
Case No: B4/2012/0492
Ms Deirdre Fottrell (instructed by Creighton & Partners) for the appellant (the natural father)
Mr Alistair G Perkins (instructed by the local authority) for the local authority and the adoptive parents
Sir James Munby, President of the Family Division:
C, as I shall refer to him, was born on 13 August 2007. The appellant was in fact, though he did not know it at the time, his father. C's mother was unable to care for him. On 16 August 2007, just three days after he was born, the local authority obtained an interim care order in relation to C from the Family Proceedings Court in accordance with section 38 of the Children Act 1989. The next day, 17 August 2007, C was placed with a foster carer with whom he remained until 28 October 2010. On 1 May 2008 the Family Proceedings Court made a final care order in accordance with section 31 of the 1989 Act, followed on 8 August 2008 by a placement order in accordance with section 21 of the Adoption and Children Act 2002. On 19 October 2010 C was matched with adopters. On 28 October 2010 he was moved to an interim placement while introductions began with the adopters. On 8 November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.
Thus far, everything had proceeded as might have been expected. At this point I need to go back to the beginning.
The appellant had had a brief sexual relationship with C's mother in late 2006 at a time when she was living with another man, R. The appellant learned that the mother was pregnant. He asked her if he was the father. She denied it and said she thought R was. The care proceedings were brought and continued on that basis. In 2009 the appellant resumed his relationship with the mother. According to him, it continued until about May 2011. A son, M, was born to them in September 2010. Towards the end of 2010, according to the appellant, his sister saw photographs of C and wondered whether he might be the father; the mother apparently laughed and said she was sure he was not. He says that to him she always said that R was the father, though he admits he began to have doubts.
In about May 2011 the appellant became aware of the adoption proceedings. On 6 June 2011, and again on 20 June 2011, his sister approached the local authority. She was told that they should seek independent legal advice. The first directions hearing followed on 15 August 2011; the order made on that occasion recorded the local authority's agreement to carry out a DNA paternity test.
On 3 October 2011 a DNA test report from Cellmark indicated that the appellant was C's father. On 18 October 2011 the results of the DNA test were communicated by the local authority to his solicitors and by them to the appellant. The very next day, 19 October 2011, he filed an application at the Principal Registry under Part 19 of the Family Procedure Rules 2010 seeking "permission to defend/oppose the adoption order" and permission to be joined as a party. The application was made pursuant to section 47(5) of the 2002 Act. It is to be noted that in response to the question "Does your application include any issues under the Human Rights Act 1998?" the answer given was "No". Directions were given by District Judge Malik on 20 October 2011, 7 November 2011 and 20 December 2011. On the last occasion he had a position statement from C's mother which set out her position very clearly: "I do not want my child … to be adopted by strangers … I wish to ask the court to place him with his natural father or allow his sister to adopt him".
The appellant's application was heard by Her Honour Judge Redgrave, sitting at the Royal Courts of Justice (the hearing having been transferred at the last moment from Gee Street), on 6 February 2012. She had before her two statements from the appellant, two statements from his sister and a statement from the local authority's social worker. Having heard counsel for the appellant, as well as counsel for the local authority and a solicitor for the (then prospective) adopters, Judge Redgrave dismissed the application for reasons which she set out in an ex tempore judgment given the following morning at Gee Street. Her order provided simply that "the Father's application for permission to be joined as a party is refused." After the appellant and his representatives had left court, Judge Redgrave gave directions fixing the final hearing of the adoption application for 2 April 2012. Consistently with Rule 14.15 of the Family Procedure Rules 2010, no notice of the hearing was given to the appellant.
Judge Redgrave's judgment is not that long. Given the importance of the matters at stake I must deal with it in some detail. Having summarised the history, in the course of which she referred more than once to C's brother, M, Judge Redgrave directed herself as follows (paragraph 5):
"It was established in Re P that an application for leave to defend adoption proceedings under Section 47(5) of the Act is governed by Section 1 of that Act, which means that the paramount consideration of the court must be the child's welfare throughout his life. The application has two stages; first, the court has to be satisfied on the facts that there has been a change of circumstances, and only if there has been is the court under a duty to exercise its judicial discretion, applying the paramountcy test to decide whether to permit a parent to oppose the adoption proceedings."
She continued:
"In this case all parties agree that there has been a change in circumstances since the placement order was made, in as much as it is now known that the [appellant] is C's father. At the time the care and placement orders were made the local authority had no reason to disbelieve the mother and R about C's paternity and could not, in my judgment, be reasonably expected in the circumstances to launch an investigation to determine whether this was true."
A little later (paragraphs 6–8) she added this:
"The court must determine whether C's welfare requires the [appellant] should be given leave to be made a Respondent in the adoption proceedings with a view to opposing the grant of an adoption order and C being placed in his and/or his sister's care.
In coming to a decision, the court is required pursuant to Section 1(3) of the Act at all times to bear in mind that in general any delay in coming to a decision is likely to prejudice C's welfare.
Furthermore, the court is constrained to take into account those matters listed in Section 1(4) of the Act. None of those factors takes precedence over the other."
At that point Judge Redgrave turned to her analysis of the circumstances of the case (paragraphs 8–12). It requires to be set out at some length:
"C is too young for his wishes and feelings to be ascertained in respect of this application or indeed in relation to adoption. He is by all accounts a happy child, thriving in his placement, establishing bonds with his prospective adoptive parents and sister. Being adopted is likely to have some effect on him and his sense of identity in the future, and this would need to be sensitively handled by the adoptive family. C needs a stable, secure and loving home. He has never experienced being cared for within his birth family, and the only other home he has known was with [the foster carer] … C has already experienced a major change of carer. He spent the first three years four months of his life with one foster carer, and his move from her via a bridging placement to his present home must have been a substantial upheaval. It is a monument to the good care he received from [the foster carer] that he was able to make this transition but he is likely to have suffered some emotional harm as a result of it. A further move would place him at risk of suffering further harm.
In addition the above factors, the court is also required to consider the relationship C has with relatives, the value of such relationships continuing, their value to him, the ability and willingness of his relatives to provide him with a secure environment in which he can develop and have his needs met, the wishes and feelings of those relatives. I am satisfied that the [appellant] and C's paternal aunt are genuine in their desire to be involved in his life. I cannot assess their ability to provide him with secure accommodation on the evidence I have, but it is certainly not a case in which I would determine that there is no prospect of them passing such an assessment. However, in my judgment their statements — that is two from the father, and two from [his sister] — show that the driving force in this application has been the paternal aunt. The [appellant] was best placed to assess whether or not he could be C's birth father and I find it somewhat implausible that this did not occur to him after the mother's original denial until [his sister] began to pursue the matter. In any event, the father did not take any practical steps himself for some months after the issue was raised with him in December 2010.
C has not developed any relationship with the [appellant] or the paternal aunt, and that in part is due to an unfortunate set of circumstances which involve [the...
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