Re C (A Child) (Placement for Adoption: Judicial Approach)

JurisdictionEngland & Wales
JudgeLord Justice McFarlane,Lord Justice Floyd,Lord Justice Patten
Judgment Date18 October 2013
Neutral Citation[2013] EWCA Civ 1257
Docket NumberCase No: B4/2012/1669
CourtCourt of Appeal (Civil Division)
Date18 October 2013

[2013] EWCA Civ 1257



His Honour Judge Atkins


Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Patten

Lord Justice McFarlane


Lord Justice Floyd

Case No: B4/2012/1669

Re: C (A Child)

Miss Jacqui Gilliatt for the Appellant

Mr Martin Downs (instructed by the London Borough of Sutton) for the First Respondent

Miss Sally Bradley (instructed by McMillan Williams solicitors) for the Second Respondent

Lord Justice McFarlane

This is an appeal by EB from the judgment of His Honour Judge Atkins dated 31 May 2013 and his consequent order. The appeal concerns the care of a child, J, born in October 2011. J was born to very young parents. The mother was 15 years old when J was born and the father 17 years old. In the early weeks and months of J's life there were a number of causes for concern about his safety which led to a residential assessment being undertaken between April and July 2012. In July 2012 the local authority applied for and was granted an interim care order allowing J to be placed with foster parents, where he has been ever since. The application before the judge was for care and placement for adoption orders.


EB, the appellant, is a maternal grandparent of J who intervened in the proceedings asking the court to make a special guardianship order for J pursuant to which J would be placed with her. EB is registered blind. In order to explain her place in the family it is necessary to say that EB was born as a male, but underwent gender reassignment beginning in March 2007 and ending in 2009. The other members of the family relevant to the proceedings included EG, the maternal grandmother who was also registered blind. The marriage between EG and EB broke down in 2007 around the time of the commencement of EB's gender transition, leading to a separation and then to a divorce in 2009.


In addition to the parents and grandparents, there is W, J's maternal uncle. The judge described W as providing valuable support to the mother during the proceedings. He had also indicated his willingness to assist EB in the early months of his coming to live with EB. J's children's guardian, CG, also participated in the proceedings and appears in this appeal.


Before the judge the positions of the various parties were as follows:

i) The local authority was asking the judge, firstly, to make a care order and to approve a final care plan providing for J's adoption, and, secondly, to make a placement order enabling the care plan to be put into practice. The care plan involved a gradual reduction of contact to monthly and thereafter letterbox contact twice a year.

ii) CG supported the local authority.

iii) EB, as I have already mentioned, sought a special guardianship order placing J with her. She put forward what the judge described as detailed plans for J's care, indicating that she would accept supervision by the local authority if the court considered that to be in the best interests of J. She further indicated that she would accept any other arrangement, if the court thought it right, including a residence order with the position to be formalised at a later date.

iv) The mother's position was in support of EB. She proposed herself as carer for J only as an alternative to EB. She was opposed to J being adopted. That had not always been her position. At an earlier stage she had favoured EG as a potential carer, saying that she did not consider EB to be suitable.

v) The father did not take any active part in the proceedings. At the date of the hearing he had not seen J for over a year. He had indicated that he wanted the local authority to decide what was in J's best interests. If J was to be adopted he would not seek contact, but he would consider seeking contact if J was in a family placement.


The judge heard the applications over four days between 28 and 31 May of this year. He heard evidence from two local authority social workers and from an independent social worker. He also heard evidence from CG, the mother and EB. The local authority's social workers were in favour of the making of the care orders with placement for adoption and against the special guardianship order. The independent social worker was supportive of EB's application for special guardianship.


The judge recorded that the mother had in the past displayed a number of behavioural problems. She had been expelled from school. Her behaviour was described as volatile and erratic and at times defiant and self-centred. There was a concern about whether she was able to ensure her own safety. The father was someone who had problems controlling his temper and had on occasions behaved in a threatening and violent way. He had disengaged from J.


The judge was satisfied by evidence he had about the care given to J that he was "at risk of significant harm" (see judgment at [59]). He concluded that the threshold criteria in section 31(2) of the Children Act was clearly satisfied. There was no dispute about that issue at the hearing and consequently no challenge to it in this court. The issue which the judge had to decide concerned what, if any, order it was appropriate to make in consequence of that threshold being crossed.


At [63] to [69] the judge considered the position of the mother as carer. He recorded a number of "positives" about her, including that she was J's natural mother, that she had shown some improvements over the time she and J had been under residential assessment, that she was young and was still growing up. However there remained serious concerns about the care she would give to J. These were that he could not be satisfied that she would keep J safe in terms of not leaving him unattended and other aspects of his care. He thought there was a risk of neglect, that the mother was at times unaware of J's presence and acted inappropriately, and was at times emotionally unavailable to J. He thought that the mother was not really able to ensure her own safety, let alone that of J. It is not necessary to rehearse all these matters. The judge concluded at [66] that, as matters stood, the mother was not an appropriate carer for J. It was not in J's best interests to approve her as such. There is no appeal against those findings.


EG had indicated in May 2012 that she had reluctantly decided that she did not wish to be assessed as a potential carer for J.


Having so concluded, the issue for the judge was essentially whether, as the local authority contended, it was right to make the care and placement for adoption orders or whether, as EB contended, there should be a special guardianship order, or some other order placing J in the care of EB. There were no other options on the table. The judge therefore proceeded to consider the evidence in relation to EB.


EB had proposed a number of alternative plans for her care of J. Under plan A there would be a transition period in which she would take 3 months unpaid leave from her work so that J could settle into her care but thereafter she would continue with full time work. W would move in and support EB during this period. Plan B would be part-time work. Plan C would be giving up work and relying on benefits, which the judge said would be unsustainable.


The judge held ([70]) that there were "a number of very important points to be made in [EB's] favour". She was closely related to J, loved him and wanted the best for him. The judge also accepted that EB now appreciated the concerns of the local authority, even though she had not done so fully in the past. He considered this to be a point to her credit. EB also had important positive qualities as a carer, namely (a) her intelligence and resourcefulness (despite her disability, EB held down an important and responsible job), (b) a demonstrated commitment to the care of J (c) the ability to display patience with J and deal with him in a quiet and calm manner and (d) the ability to listen to advice.


However he went on to make five specific findings, on which he subsequently relied, as to concerns about EB's suitability. These were:

i) He doubted ([72]) EB's ability to deal with the mother. He considered that if the mother had contact with J twice a week as proposed, it would be "confusing" for J. He considered that the very fact of the proposal for contact showed that the family and EB in particular underestimated the likelihood of difficulty with the mother.

ii) Although resourceful, as a single carer with a disability and work and financial commitments, he had real doubts about EB's ability to manage.

iii) EB would need a certain amount of help, for which the family would be the first port of call. The mother still had quite a bit of growing up to do. There were conflicts from time to time and likely to be conflicts in the future.

iv) He was concerned about EB's relationship with J. After his birth, there had been a gap in contact between Christmas 2011 and July 2012. He did not attribute any blame to EB for this. Although EB and the mother were in the process of forming a relationship, there was still some way to go. He shared CG's concern about a recent incident when J was taken to EB's home and appeared to be upset.

v) Finally the Judge pointed to what he described as a "lesser concern". He thought there was a potential source of a problem if the father was to seek contact with J. The family had expressed what he described as "not a positive attitude" to the father. The judge later said that his decision was primarily based on the first four of the concerns.


Having considered these positive and negative...

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