A Local Authority v Prospective Adopters
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Henderson,Lord Justice Underhill |
| Judgment Date | 07 October 2020 |
| Neutral Citation | [2020] EWCA Civ 1287 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2020/1078 |
| Date | 07 October 2020 |
[2020] EWCA Civ 1287
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT NORTHAMPTON
HH Judge Wicks
NN112/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Henderson
and
Lord Justice Baker
Case No: B4/2020/1078
In the Matter of the Adoption and Children Act 2002
And in the Matter of Y (Leave to Oppose Adoption)
Hannah Mettam and Paul Froud (instructed by Local Authority Solicitor) for the Appellant
Malcolm Macdonald and Jessica Purchase (instructed by HCB Solicitors) for the Second Respondent
Joanne Ecob (instructed by Scott Beaumont Solicitors Ltd) for the Third Respondent
Hena Vissian (instructed by Borneo Martell Turner Coulston) for the Fourth Respondent
The First Respondents were not represented
Hearing date: 3 September 2020
Approved Judgment
Introduction
This is an appeal by a local authority against an order in adoption proceedings concerning a child, Y, now aged 2 years 8 months, granting Y's parents leave to oppose the making of an adoption order.
Y's parents are profoundly deaf. Their participation in court proceedings requires the assistance of sign language interpreters and, in the case of the mother, a deaf-registered intermediary. Inevitably their participation in these proceedings has been made more difficult because the hearings before the judge and before this Court have been conducted remotely in accordance with the Covid 19 protocols. Unsurprisingly, there were some problems over the arrangements for the hearing of the appeal, which was the first remote hearing before this Court involving litigants with hearing difficulties. In a skeleton argument filed on behalf of the mother, we were invited to give updated guidance for managing cases involving litigants suffering from such disabilities in the new legal landscape of remote and hybrid hearings in family proceedings, building on the guidance given by this Court in Re C (A Child) [2014] EWCA Civ 128 which was based in part on my observations about assistance for disabled litigants in children's proceedings at first instance in Wiltshire Council v N and others [2013] EWHC 3502 (Fam). For my part, I do not think it would be appropriate to give such guidance in this judgment. The problems referred to above led to a delay in the start of the hearing, and legal argument was confined to the issues arising on the appeal. We heard no further submissions on the wider issues of practice. In those circumstances, I would prefer to deal with those wider issues by referring the matter to the President of the Family Division and to MacDonald J, who with the President's approval has published guidance on the conduct of remote and hybrid hearings in the family jurisdiction, to consider whether the guidance needs amendment to address the difficulties faced by disabled litigants in general and those with hearing loss in particular.
Meanwhile, I would reiterate the core aspects of the guidance given by this Court in Re C – that it is the duty of lawyers acting for a parent who has a hearing disability to identify that as a feature of the case at the earliest opportunity, that those lawyers and the local authority should make the issue known to the court at the time that the proceedings are issued, and that the court must grapple with the issue, including the support required and the funding of that support, at the first case management hearing with the aim of giving clear and detailed directions. A similar course should be adopted in this Court so that, if permission to appeal is granted, the single Lord or Lady Justice can give all necessary directions, either on paper or, if appropriate, at a preliminary hearing. In the case of remote or hybrid hearings, where the party, interpreter and/or intermediary are not together in the same room, it will be necessary to consider how they can communicate with each other separately from and alongside the platform through which the hearing is being conducted. That may or may not be a matter for a court direction but it will certainly be something to be considered and arranged by the parties' solicitors.
In the event, after initial problems on the day, the hearing of this appeal proceeded relatively smoothly. This Court is extremely grateful to the professionals involved – the lawyers, interpreters and intermediary – for their assistance in enabling the hearing to proceed in a way which ensured the proper participation of the parents.
Background
I turn to the facts of this case which, for the purposes of this appeal, can be summarised shortly.
In March 2018, the local authority started care proceedings in respect of Y and his older half-siblings after Y, then a few weeks old, was taken to hospital and found to have sustained ten fractures of various ages to his ribs, both femurs and both tibias, and a number of bruises. In the course of the proceedings, the parents accepted that the injuries had been inflicted by Y's father. At a fact-finding hearing in April 2019, HH Judge Wicks made a series of findings some of which were agreed by the parents and others of which were not. They accepted that the fractures had been inflicted by the father, that he had been violent to the mother, and that the mother had failed to take appropriate action in response to his treatment of her, placing herself and the children at risk from his volatile and violent behaviour. In addition, the judge found on a balance of probabilities that the bruises had been inflicted by the father, that the mother knew that the father posed a risk of harm to Y but had failed to protect him, and that the father (though not the mother) had failed to seek timely assistance for Y. In reaching those findings, the judge concluded that the parents were willing to lie when it suited them and had lied to the court about a number of matters, in particular about their relationship. In addition, the judge made some further findings about members of the mother's extended family which it is unnecessary to consider in this judgment.
Importantly, it is clear from reading the fact-finding judgment that the judge looked carefully at the totality of the evidence relating to the findings he was being asked to make and in doing so considered with particular care the evidence given by the parents.
The final hearing of the care proceedings took place a few months later in July 2019. Y's half siblings were made subject to a full care order on the basis of a care plan providing that they be placed with a maternal great aunt and uncle. With regard to Y, the parents accepted that he could not be returned to their care and no other family members were put forward as possible carers. The judge therefore identified only two realistic options for his future – long-term- fostering, which was supported by the parents, and adoption, which was supported by the local authority and guardian. Having carried out an analysis of the advantages and disadvantages of each option, he accepted the local authority's case, approved the care plan, and made care and placement orders.
Again, it is important to note that in the course of this contested hearing the judge was required to look carefully at all the evidence before reaching his decision. It can therefore be said with confidence that by the conclusion of the care proceedings he was fully aware of the issues and the circumstances of the family and in particular of the parents.
By that stage, Y had been living with his foster carers for nearly 18 months. They subsequently indicated a wish to adopt him and the local authority embarked on a process of matching him in accordance with the Adoption Regulations. On 6 September, the prospective adopters filed an adoption application. The parents then filed an application under s.47(5) of the Adoption and Children Act 2002 for leave to oppose the adoption. The hearing of the application was adjourned on two occasions, the second adjournment being due to the Covid 19 crisis. It was eventually listed for determination by written submissions on 17 April 2020. In addition to the application under s.47, the judge also considered an application by the father (who was at that stage acting in person) to re-open the fact-finding hearing. In his judgment handed down on 29 June 2020, the judge dismissed the application to re-open but granted the application for leave to oppose the adoption order and gave further case management directions. The local authority's application to the judge for permission to appeal was refused.
On 6 July, the local authority filed a notice of appeal to this court, citing the following grounds of appeal: that (a) the judge failed to apply the correct legal test for determining an application for leave to oppose an adoption; (b) he applied too much weight to the parents' assertion that changes had been made and failed to consider the broad canvas of the evidence; (c) there were no solid grounds for the parents' application; (d) the judge gave inadequate weight to the parents' failure to accept the findings in the care proceedings; (e) it was not possible to reconcile his assessment that change had been established with the father's position that he no longer accepted the findings; (f) the judge's reasons for his decision were inadequately detailed to support his conclusion; (g) he failed to conduct an adequate welfare...
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