Re C (Minors) (Adoption)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 30 July 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J0730-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 1991 |
| Docket Number | 91/0787 |
[1991] EWCA Civ J0730-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HEREFORD AND WORCESTER
COUNTY COURT
(HIS HONOUR JUDGE ROY WARD QC)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Balcombe
91/0787
Case Nos. 9001389 and 9001396
MR PATRICK ECCLES Q.C. and MR J. BAKER (instructed by Messrs. Humfrys & Symonds, Solicitors, Hereford) appeared on behalf of the Appellant (Father).
MR NICHOLAS WALL Q.C. and MR D. TURNER (instructed by J.W. Renney, Esq., Solicitor, Hereford County Council) appeare on behalf of the 1st Respondents.
MR PAUL FOCKE Q.C. and MISS J. MACUR (instructed by Messrs. Thornes, Solicitors, Hereford) appeared on behalf of the 2nd and 3rd Respondents (Guardian ad Litem).
This is the judgment of the Court.
This appeal is by a father of two children, "N" born on 22nd May 1984 (now aged 7) and "N" born on 7th May 1985 (now aged 6) from orders made by His Honour Judge Ward Q.C. in the Hereford County Court on 18th January 1991, freeing the children for adoption and directing that the parental rights and duties relating to the children be vested in the applicant, the Hereford and Worcester County Council.
The father met the mother of the children in 1983. They married on 10th November 1984. The marriage was a stormy one, characterised by alcohol and drug problems, and by a history of violence by the father to the mother. In September 1986 the father left the matrimonial home, and shortly afterwards attempted to commit suicide; both the father and the mother were then admitted to a psychiatric hospital for a short time. The children were received into voluntary care and placed with foster parents, with whom they remained for six weeks, from 7th October to 18th November 1986. The mother instituted divorce proceedings on 22nd October 1986.
After their period in care, the children returned to live with the mother at the matrimonial home, and the father also returned to live in the matrimonial home in late November 1986. On 8th March 1987 the mother left the matrimonial home, alleging that the father had been violent towards her (she had made similar allegations in respect of the period June -August 1986) and leaving the children in the house with the father.
On 13th March 1987 the mother applied for ouster and non-molestation injunctions and for custody of the two children. These applications came before Judge Ward on 23rd April 1987, decree nisi having been granted on 23rd March 1987.
In the course of his judgment the Judge made very-severe criticisms of both parents, but in the end, with grave reservations, granted custody of both children to the mother, with reasonable access to the father, and with a supervision order in favour of the Council. He also made ouster and non-molestation injunctions against the father. Nevertheless, there were further incidents of violence by the father against the mother during the summer of 1987 which were the subject of both contempt and criminal proceedings, for which the father was imprisoned for 14 days (contempt), and placed on probation and subsequently sentenced to 120 hours of community service (criminal). On 16th June 1987 the decree of divorce was made absolute.
On 19th October 1987 the father applied for custody of both children. On 20th November 1987 the children were received into care at the mother's request and were placed with the mother's brother and sister-in-law (Mr and Mrs "L"), as short-term foster parents. Thereafter the father exercised regular access to the children every Saturday; the mother saw them only occasionally. Thereafter she paid no major part in the lives of the children, and she subsequently consented to their being freed for adoption.
The father's application for custody eventually came on before Judge Ward at the end of February 1989. At the same time the Council applied for a Care Order under Section 43 of the Matrimonial Causes Act 1973 ("the 1973 Act").
After a three-day hearing the Judge made a Care Order in favour of the Council. In the course of his judgment given on 2nd March 1989, the Judge commented favourably on the father's commitment to the children, demonstrated by the regularity of his access, and the bond of affection which clearly existed between the father and the children. Further, he found that the father could give the children the physical care they required, and would be able to obtain suitable accommodation. However, he held that the father's lifestyle and temperament were such that if the children, who were already emotionally disturbed as a result of their earlier experiences (in particular their exposure to the violence between their parents) were placed with the father, there was an unacceptable risk that the placement might fail, causing further harm to the children who would in any event be disturbed by their inevitable move from the "L's". That was the basis for the making of the Care Order.
The Judge then said:
"I add this: the future course of action will be one for the County Council to decide. They will no doubt have a further case conference in the light of what has materialised at this hearing and what views a judge would have of dispensing with the father's consent for adoption. This is not a case in which the local authority ought to assume it to be a mere formality because it is not. They must look at the case in the light of my findings since I rejected some of the factors, and decide if it is possible to work to rehabilitation with the father or not. That course of action does not seem to have been explored. It is one not entirely ruled out by Mr Maude (the Court Welfare Officer). At this present stage, no one could safely return them to the father without being concerned as to the effect on them. Nor am I indicating what course the local authority should take as a result of any such conference. It is a matter for professional judgment".
On 13th March 1989 a meeting was held at the Council's Social Services Department attended by a number of the Council's officers concerned with the care of the children. It was recorded that the following options were under consideration:
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(1) rehabilitation with the father;
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(2) an application for the children to be freed for adoption;
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(3) long-term placement with foster parents with regular defined access by the father.
It was decided that an independent assessment should be made whether the children could cope with the possibility of failure if placed with the father; within this assessment, the degree of attachment to the father would be judged. However, on 28th April 1989 the father appealed against the order of 2nd March 1989, and the Council were unable to act on that order pending the decision on the appeal. The appeal was heard and dismissed by this Court on 5th October 1989. The children remained with the "L's", and the father continued to exercise regular weekly access to the children.
On 2nd November 1989 there was a meeting between the social workers and the Council's solicitor. The notes of that meeting record that there were three options for the children:
(1) long-term fostering with access;
(2) "closed" adoption (i.e. without access by the father, and
(3) "open" adoption, with access by the father.
The note also records that the Council's solicitor expressed the view that the grounds for a freeing order were "very slim". (It was subsequently suggested that this was not an accurate record of the solicitor's views).
In November 1989 the "L's" told Mrs Bergstrom, who was by this time the social worker primarily concerned with the children on behalf of the Council, that they felt unable to have the children living with them because of ill-health and the needs of their own family. They expressed concern that the children were becoming increasingly attached to them and that they should therefore be moved to their future carers as soon as possible.
On 3rd November 1989 Mrs Bergstrom wrote to the father telling him that there were two possible options for the children: long-term fostering with access, or an application to free them for adoption. On 14th November 1989 there was a meeting between Mrs Bergstrom and the father at which the father made it clear that he would only agree to the children being placed in a short-term foster home where he would be able to continue in his attempts to have the children returned to his care; he was unable to support any plans for permanent substitute care. Undoubtedly the father's attitude to Mrs Bergstrom was very hostile. However, the Judge's note of Mrs Bergstrom's evidence-in-chief of this meeting is as follows:
"If he had been co-operative, we should have considered alternative family for long term fostering or open adoption. I don't think I made that clear to him in explicit terms".
On 6th December 1989 the Council held an inter-departmental planning meeting to consider the children's future. The minutes of the meeting record that rehabilitation of the children with the father was not a viable option, for the reasons which were there given. We need no set out those reasons since by the time of the hearing before the Judge the father had, belatedly, accepted their validity. In our judgment this is a decision which cannot be criticised. However it was the next decision, and the actions taken upon it, that led to subsequent problems.
The minutes record:
"(The father) has not come to terms with the fact that the children are unlikely to be returned to him and he has threatened to continue to fight the Care Orders for as long as the children are in care. He will not...
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