W (A Child) (No 4)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 12 July 2017 |
| Neutral Citation | [2017] EWHC 1760 (Fam) |
| Date | 12 July 2017 |
| Court | Family Division |
| Docket Number | Case numbers omitted |
[2017] EWHC 1760 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case numbers omitted
Ms Janet Bazley QC and Mr Chris Barnes (instructed by Harney and Wells) for W's father
Mr Frank Feehan QC and Ms Madeleine Reardon (instructed by Osbornes) for W's adoptive parents
Mr Andrew Bagchi QC and Mr Martin Downs (instructed by Brighton and Hove City Council Legal Services) for the local authority (Brighton and Hove City Council)
Hearing date: 6 July 2017
Judgment Approved
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
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.
Sir James Munby, President of the Family Division:
I circulated my judgment in this matter on 6 March 2017 and published it on 12 April 2017: Re W (A Child) [2017] EWHC 829 (Fam). 1 The same day, 12 April 2017, I made an adoption order. It was sealed on 18 April 2017.
I take my judgment as read, referring here only to those passages most directly relevant to the matters now before me. I identified the issues as follows (para 57):
"There remain, therefore, two issues for me to determine:
i) Should I grant Mr and Mrs A's application to adopt W, their application including an application pursuant to sections 47(2)(c) and 52(1)(b) of the Adoption and Children Act 2002 to dispense with the consent of her father and mother, or should W be returned to the care of her father?
ii) If the former, should I make any order in relation to post-adoption contact?"
I set out (paras 95–99) the differing submissions I had had about Mr and Mrs A. I set out (para 100) my conclusions as follows
"This is an issue about which I have thought long and carefully, but in relation to which, at the end of the day, I have no hesitation in coming to clear conclusions. Mr and Mrs A's commitment to W, and to her well-being, throughout her life, is absolute. Their journey through litigation which has subjected them to appalling strain (just as it has the father and the mother) has been reflected in a gradual development and positive movement in relation both to their understanding of the father and of their recognition of the need for and willingness to facilitate contact, both indirect and direct. I accept Mr Diver's assessment, which agrees with my own, of Mr and Mrs A being willing now, whatever may have been their stance in the past, to work towards direct contact, and moreover, direct contact sooner rather than later…"
There followed a very long section in which I quoted extensively from the expert evidence. Included were extracts from the experts' evidence in relation to post-adoption contact: see for example Dr Blincow (paras 113, 118–119), Mr Hatter (para 132), Dr Willemsen (para 142), Dr Helps (paras 160, 162, 164, 166) and Mr Diver, the children's guardian (para 176).
My discussion was lengthy (paras 224–253). I said (para 233) that:
"The starting point has to be W's current reality. As far as she is concerned, Mr and Mrs A are her daddy and mummy. They are her parents, emotionally, psychologically and socially. They and their son are, and, so far as she can remember, always have been, her family. It may be that she has the implicit memory referred to by Dr Willemsen, but she has no actual memory of her birth family or of any other family. She may be familiar with the words "tummy mummy", but she has no real understanding of what they mean or of their significance. Given her age and stage of development there is little that could be done to prepare her for a move to her father's care, nor would it be possible to explain to her, in a way which would have any real meaning for her, what is happening to her, whether before, during or after the move."
I posed (para 245) the question, "How then is the overall balance to be struck?" The remaining part of the judgment must be read in full, and as a whole. For present purposes the key passages are these:
"249 I am, at the end of the day, driven to the conclusion, which in the event I arrive at unhesitatingly, that W must, for her own good, for her own happiness and for her welfare, now, in the years to come, into and through adulthood, indeed for the whole of what I appreciate may be a very long life – she may well live into the 22 nd century – remain with what for her is her family, that is, with Mr and Mrs A and their son …
250 Drawing the statutory threads together, the sad reality is that W does not now have, did not at the time of the hearing before me have, any meaningful relationship with her birth family; the most important, indeed from her perspective the dominating, relationship for W is and has for some time been with Mr and Mrs A and their son. The value to W of that relationship continuing is enormous. And while I recognise – how could I not? – the strength of the father's wishes and feelings, and his absolute commitment to W and unconditional willingness to provide for her every need, one has to question his ability to do so; not because of any failings or limitations on his part, because for all practical purposes there are none, but because what would be demanded of him would probably be almost too much for any parent in his situation.
251 … the stark reality here, in my evaluation of what the future in all likelihood holds, is that the future for W if she returns to her father is not one of merely short-term or transient problems; far from it. The risks of moving W from Mr and Mrs A are simply too great, and potentially so unmanageable, as to demand that they not be run.
252 Given that analysis, given my conclusion that W's welfare demands that she remains with Mr and Mrs A, I am also driven to the conclusions (a) that W's welfare requires that she be adopted – for her long-term welfare cannot otherwise be secured – and, a separate matter, (b) that her welfare "requires" (in the sense explained in the authorities) that her parents' consent to her adoption be dispensed with. Adoption is demanded by the overriding necessity of W's interests and welfare. Nothing else will do."
I then addressed the issue of contact (para 253):
"There was a clear consensus among all the experts that, if W is to remain with Mr and Mrs A, it is in her best interests that there should be increased contact leading to direct contact with her birth family as soon as is practical. There was general agreement that W's long-term psychological wellbeing – her ability to understand her status as an adopted person and to put her particular 'narrative' in context – would be best safeguarded if contact with her birth family took place sooner rather than later. I agree with that. I also agree that there should be no order for contact, something which no expert recommended. If Mr and Mrs A are to be W's adoptive parents, and this is the hypothesis on which the question arises, it must be for them to decide when, how and in what circumstances contact should begin and develop. And, quite apart from that, it is quite impossible at this point to spell out any of these matters with the kind of precision which would be required in an order. All that said, I agree with Dr Blincow's view, expressed in answer to questions from Mr Bennett, that Mr and Mrs A need to "commit themselves" to making such contact work and that "it is very, very important … that [they] adopt that course of action wholeheartedly.""
I should add that, during the proceedings, Mr and Mrs A had made two joint statements relevant to what is now in issue, one dated 16 June 2016 and the other dated 23 August 2016. In the first, under the heading "Our family as a British based family," they said this:
"[The father] has expressed fears that, as a family with American and Italian heritages and extended families in both those countries, we may move permanently from England to either Italy or the USA once an adoption order is made in our favour. It is impossible for any family to know exactly what the future will hold but as a family we have put our roots down in this country and our son has always been educated here and lived here since he was one year old. Mrs A is about to submit an application for British citizenship and her "Life in the UK" test is scheduled for [date]. Apart from this being an acknowledgement of our settled residence here, it will mean that Mrs A has the same nationality and connection with this country as W."
In the second, they said this:
"Our position in relation to our future living arrangements is as follows. It is correct that we have ties to other countries (indeed this was, we believe, one of the main reasons for being matched with W in that her birth family had asked the local authority to look for adopters who could reflect her part-Italian heritage). However we have built our lives together in the UK and established careers and friendships which now go back many years. We keep in frequent contact with our family members abroad and they visit us, and we them, on a regular basis, but the UK is our home. Our family is rooted and settled in our local area.
… Mr Hatter suggested during the experts' meeting (although not in either of his reports) that he was concerned by our failure to offer a 'guarantee' that we would not move abroad during W's minority. We have never been asked to offer this, by Mr Hatter or by anyone else, so it is not right that we have refused or failed to do so. It...
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