Prospective Adopters v SA (father) (1st Respondent) TB (mother) (by the Official solicitor) (2nd Respondent) A London Borough (3rd Respondent) SSM (child) (by his children's guardian) (4th Respondent)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 17 February 2015 |
| Neutral Citation | [2015] EWHC 327 (Fam) |
| Docket Number | Case No: ZC67/14 |
| Court | Family Division |
| Date | 17 February 2015 |
[2015] EWHC 327 (Fam)
Mr Justice Mostyn
Case No: ZC67/14
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Emily Beer (instructed by Moss & Coleman) for the Applicants
Hannah M Markham (instructed by Goodman Ray) for the 1 st Respondent
The 2 nd Respondent was not represented
Emily James (instructed by London Borough Legal) for the 3 rd Respondent
David Vavrecka (instructed by Creighton & Partners) for the 4 th Respondent
Hearing date: 10 February 2015
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
This is a case with a long and complex history. It has involved proceedings:
i) under section 31 Children Act 1989 concerning the four children of TB (the mother) and SA (the father);
ii) under section 31 Children Act 1989 concerning the child of the father and his second (polygamous) wife (SSB), his first cousin; and
iii) in the Court of Protection under the Mental Capacity Act 2005 concerning the mother.
There are five relevant prior judgments as follows:
i) By Judge O'Dwyer dated 29 January 2010 following a fact-finding hearing concerning the four elder children.
ii) By Judge O'Dwyer dated 20 July 2010 where he adjourned the disposal hearing for further assessments.
iii) By Judge O'Dwyer dated 17 January 2011 where he made final care orders in respect of all four children and placement (for adoption) orders in respect of the younger two.
iv) By me dated 13 September 2013 where I made a supervision order in respect of the child of the father and SSB. Following that judgment a further child was born to the SSB and the father.
v) By me dated 17 December 2014 in the Court of Protection reported as London Borough of Tower Hamlets v TB & Anor [2014] EWCOP 53. By that judgment, inter alia, I found that the mother lacked capacity and directed that the local authority should find a supervised placement for her away from the father but with limited contact in his favour.
The father is 42. The mother is 41. The four children of the mother and father are STH, born on 1 October 2001, a girl (13); STM, born on 17 March 2003, a girl (12); SSM, born on 7 January 2009, a boy (6); and SHT, born on 22 January 2010, a boy (5). The two children of the father and SSB are YSY born on 22 June 2012, a girl (2) and ISS born on 3 March 2014, a girl (11 months).
The background is set out in paragraphs 1 – 18 of my judgment dated 17 December 2014 which anyone reading this judgment should read at this point.
At para 8 I stated (by reference to an earlier interim judgment by me):
"… the parties began in 1999 or 2000 their married life, this man and this incapacitated woman, and they had four children: STH, born on 1 October 2001, a girl; STM, born on 17 March 2003, a girl; SSM, born on 7 January 2009, a boy; and SHT, born on 22 January 2010, a boy. All these children were the subject of care proceedings mounted by the London Borough of Tower Hamlets against this mother and this father. Those proceedings were heard over many days and many occasions by Judge O'Dwyer and resulted in a fact finding judgment on 29 January 2010 and two further judgments on 20 July 2010 and 17 January 2011. The consequence of those three judgments were that all the children were removed permanently from these parents and have been placed for adoption … In the course of his first judgment on 29 January 2010, the judge made what he described as grave findings against both parents but principally against the father, he having recognised in relation to the mother that she had disability, was unable to represent herself, that she has always lacked capacity to care for her children, and she is in receipt of a great deal of support from the local authority."
At para 9 I stated:
"So far as SA is concerned he remains living at 9 Emerald Mansions. There he is visited on 2 or 3 occasions each week for 4 to 5 hours by SSB, YSY and ISS. If SSB goes out he looks after his daughters unaided. Additionally he socialises in public places with SSB, doing things like shopping. He intends to play a full part in the upbringing of his daughters."
And at paras 13 and 14:
"The four children of TB and SA are all in care. STH (13) and STM (11) are in the same placement and the plan for them is long term fostering. SA has contact with them once every four months for 1 1/2 hours. The plan for SSM (nearly 6) and SHT (nearly 5) was adoption. It has not been possible to find adopters for SHT, and so he being matched with his current carers for long term foster care. SSM has been placed with adopters and an adoption application has been made. Pursuant to section 47(5) Adoption and Children Act 2002 SA seeks leave to oppose the application. By an order made by Judge O'Dwyer, with my consent, dated 4 December 2014 that application and the adoption application itself are allocated to be heard by me, and will be in the New Year. Obviously I say nothing about the likely result of those applications other than to observe that SSM has been with his current carers since he was 5 days old.
There is inter-sibling contact and this will continue if SSM is adopted."
And at para 18:
"It would appear that [SSB's] application [for indefinite leave to remain] has been denied and that she has mounted an appeal. The appeal is to be heard on 12 December 2014. If that fails she will make a different application within the Immigration Rules for leave to remain. As with immigration law and procedure generally the picture is extremely murky. However, on any view she and the children have a good prospect of being allowed to stay here."
I have been informed that on 12 December 2014 SSB was granted indefinite leave to remain in the UK.
This is my judgment on the application for the adoption of SSM. As indicated above the father seeks leave to oppose the application pursuant to section 47(5) Adoption and Children Act 2002. I have earlier directed that the father's application and the adoption application itself be dealt with at one rolled-up hearing. I have also directed that if an adoption order is made I will abridge all time and other formalities to consider an application by the father for post-adoption contact pursuant to section 51A of the 2002 Act. However, the parties have agreed that if an adoption order is made there will be direct supervised contact between the father and SSM on two occasions a year (in contrast to the three occasions which he presently enjoys). Putting legal and psychological consequences aside that reduction from 3 to 2 occasions is the only practical difference that will occur if the order is made.
The Official Solicitor, who represents the mother, has written to the court to say that she there is no case to be made on her behalf within the adoption proceedings. The mother has not been represented in the proceedings.
I heard first submissions on the father's application for leave. I then invited submissions on the hypothesis that the leave application were to be granted. I gave Miss Markham who represents the father the last word and offered her as long as she liked to make all the submissions she wished. The parties agreed that the matter should be dealt with without oral evidence. There was an excellent single bundle which contained all the relevant material including a focused guardian's report. All four counsel provided outstanding skeleton arguments and the quality of their oral submissions was of equal quality.
Leave under section 47(5): the legal principles
So far as is material section 47 provides:
(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).
…
(4) The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) either—
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
…
(7) The court cannot give leave under subsection ( 3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.
Before I examine the authorities which specifically relate to this provision I intend to look at these statutory provisions from first principles.
Where, as here, the second condition applies because the child was placed for adoption under a placement order there is a threshold condition of "a change in circumstances since the placement order was made". The applicant parent has to prove this before the court can move to consider whether leave should be granted to oppose the making of the adoption order.
Obviously the words "a change in circumstances" are not...
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M (A Child: Leave to Oppose Adoption)
...change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16–19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated: “......