Re M-J (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 06 February 2007 |
| Neutral Citation | [2007] EWCA Civ 56 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2006/2429/2430/2431 |
| Date | 06 February 2007 |
[2007] EWCA Civ 56
Lord Justice Thorpe
Lord Justice Carnwath and
Lord Justice Wall
Case No: B4/2006/2429/2430/2431
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
RECORDER O'LEARY
NEWPORT COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Abigail Bond (instructed by Winterbothams Ltd—Solicitors) for the Appellant
Sian Parry (instructed by Newport City Council – Solicitors) for the 1 st Respondent
Paul Hartley-Davies (instructed by Devonalds—Solicitors) for the 2nd Respondent
Sian Parry (instructed by Humphreys– Solicitors) for the 3 rd Respondent
This is the judgment of the court.
The mother of a male child born on 10 June 2003, whom we will identify only by the initials MJ, seeks permission to appeal against an order by Recorder O'Leary sitting in the Newport (Gwent) County Court on 3 November 2006. The order against which the mother seeks to appeal is that MJ be adopted by the mother's maternal half-sister, SJ, with whom MJ had been placed pursuant to a care order made on 14 March 2005. The mother acknowledged that she was not in a position to care for MJ. Her case was that he should remain with SJ under a special guardianship order.
This is, accordingly, the third of the triptych of cases heard in this court in November and December 2006 in which the question for the court had been the choice between an adoption order and a special guardianship order. All three judgments are being handed down on the same day, and in these circumstances, we do not propose to repeat the general discussion and guidance contained in paragraphs 40 to 77 of the first of the cases, Re S. For the reasons given in that case, however, we adopt the same thinking in those paragraphs.
The mother's application for permission to appeal came before Thorpe LJ on the papers on 11 December 2006. He adjourned it for an oral hearing on 19 December 2006, and directed that the appeal should follow if permission was granted. As the question it raised is one of general importance, we granted permission to appeal at the outset of the hearing, and at the conclusion of the argument announced our decision that the appeal would be dismissed. However, we reserved our reasons, which we now give.
The facts
We think we can do no better than to set out the recorder's summary of the background to the case, which appears in the first seven paragraphs of her clear and thoughtful judgment: —
1. This is the final hearing of various applications brought in respect of the child MJ, born on 10 June 2003. He is a little boy of three years and almost five months of age. (He) was born at 36 weeks gestation with a history of growth retardation in the womb. His mother, who is aged 32, and her partner, Mr. M, had problems with alcohol and drug dependency, and MJ had a history of early hospitalisation, admission due to failure to thrive. MJ was accommodated by the local authority in a foster placement in December 2003 and the local authority instituted care proceedings in June 2004. In the period between December 2003 and early 2005, the mother had regular contact with MJ but she was frequently under the influence of alcohol.
2. MJ is the subject of a care order made on 14 March 2005 on the basis of an agreed care plan of 11 February 2005 which provided that he would be rehabilitated to his mother subject to (1) his mother successfully completing the first stage of her rehabilitation from her drug and alcohol addictions at a residential unit (2) successfully completing the second stage of the detoxification programme; and (3) successful completion of all the above by no later than the end of 2005.
3. In the event of failure, the local authority's contingency plan, a placement with the maternal half sister, SJ, the 3 rd respondent within these proceedings before me, for adoption, would be implemented. In addition, the placement contingency plan was to be triggered if the mother was found to have consumed any alcohol or any substance at all before taking over care of MJ.
4. The history indicates that initially all went well. The mother moved to the second stage of her programme on 31 March 2005. Contact included overnight staying contact at this time, but the mother relapsed, taking heroin on 7 May 2005, and in accordance with the care plan replicated in the contract of expectations and signed by the mother in March 2005 the contingency plan was implemented and MJ was moved from his foster carers to the home of his aunt in August 2005.
5. In due course, the mother completed the third stage of her programme of recovery this month.
6. The applications before the court at the commencement of the final hearing were, firstly, the application of the local authority to free MJ for adoption, that application being made under (the 1976 Act) on 3 October 2005; secondly, the mother's application to discharge the care order, and a section 34 application for contact made on 13 April 2006; thirdly, the application of SJ to adopt MJ brought under section 46 of (the 2002 Act). By the order of HH Judge Gaskell of 6 October 2006, it was ordered that the mother's application to discharge the care order would be heard first and if unsuccessful the local authority would not seek an order on their freeing application but would support the application of SJ to adopt. In fact, the evidence in relation to all the applications has been heard together and all applications fall to be disposed of by this judgment.
7. However, the mother at the conclusion of her evidence indicated when being re-examined by her counsel that she no longer pursued her application to discharge the care order or for contact, conceding that MJ's interests would be best served by remaining where he was. I indicated that in due course the court would accede to the mother's application for leave to withdraw her applications, and the balance of the hearing before me was devoted to evidence on the discrete issue of whether MJ should remain with SJ under a special guardianship order or an adoption order. The issue remaining for adjudication is a narrow albeit fundamental and important one for all parties.
The evidence before the recorder
It will be immediately apparent that, unlike the cases of Re S and Re AJ, the adoption proceedings taken by SJ were instituted under the 2002 Act. This court has set out the relevant provisions of the 2002 Act in paragraphs 35–36 and 38–39 of its judgment in Re S, and we do not propose, accordingly, to repeat them in this judgment.
The recorder heard oral evidence from the mother and from Dr. Wenban-Smith, a chartered forensic psychologist whom the recorder described as having been instructed to assess “amongst other matters, MJ's future placement needs, his attachments, and further contact needs”. The recorder also had oral evidence from the prospective adopter, the local authority social worker and from MJ's guardian. The recorder also had reports from Dr Jamil, a consultant psychiatrist jointly instructed in June 2006 to report on the mother, and a statement from an independent social worker who had observed a contact between MJ and his mother on 16 August 2006.
The recorder regarded it as being of importance that SJ's position since her initial meeting with the local authority in May or June 2004 had been that if MJ could not be looked after by his birth mother, she would offer him a permanent home on the basis of adoption by her. The recorder found as a fact that this was also what the mother in early 2004 indicated she wanted, and that she agreed to it in March 2005, both in the care plan and in the “contract of expectations” to which the recorder had previously alluded.
The mother, however, had changed her mind by January 2006, when she told the local authority that she did not feel able to consent to MJ being freed for adoption. At the same time, she acknowledged that she did not have any plans to resume the care of MJ, since she accepted that this would not be in his best interests. There was, however, a further fundamental shift in the mother's position in March and April 2006, and in her statement filed in support of her application to discharge the care order, she attempted to explain her change of heart by indicating that she had concerns about SJ's ability to meet MJ's emotional needs. The result was the vacation of the final hearing fixed for 20 and 21 April 2006, and the instruction of Dr Wenban-Smith, Dr Jamil and the independent social worker to whom reference has already been made.
Unfortunately, but perhaps unsurprisingly, the mother's change of heart had what the recorder described as “a devastating impact” on her relationship with SJ. The recorder found that SJ had not known of the mother's intention to apply to discharge the care order and resume the care of MJ despite having been in telephone contact with the mother almost fortnightly. As a consequence, occasions of contact between the mother and MJ in May, July and August 2006 had been “strained and difficult from the adults' perspectives”.
The recorder found as a fact that in reality the mother's true feelings had not changed, and that she had never truly accepted the contingency plan for adoption, always believing and hoping that SJ would only be a caretaker carer. The recorder's assessment of the mother was not unsympathetic, and was in the following terms: —
16. The mother has made remarkable progress in conquering her addictions and turning her life around. The...
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