This is an article on the above case which is significant for a number of reasons and should be considered when dealing with any application to oppose the making of an adoption order.
This was an appeal made by a local authority against a decision in adoption proceedings concerning a child then aged 2 years and 8 months.
The parents had been granted leave to oppose the making of an adoption order.
The local authority appealed this decision and was supported by the guardian.
The Court of Appeal dismissed the local authority’s appeal.
The case is of particular interest for the following reasons:
It was the first remote hearing before the Court of Appeal involving litigants with hearing difficulties.
It was also a reminder to lawyers acting for parents with a disability of the guidance given by the CA in Re C (A Child)[2014] EWCA Civ 128 of their duty to identify that as a feature of the case at the earliest opportunity and that they and the local authority should make the issue known to the court at the time the proceedings are issued.
The court must then grapple with the issue, including the support required and the funding of that support, at the first Case Management Hearing with the aim of giving clear and detailed directions.
(My understanding is that that should be in the form of Ground Rules hearing).
The Court of Appeal was asked to give updated guidance to that given in Re C(referred to above) for managing cases involving litigants suffering from such disabilities in the new legal landscape of remote and hybrid hearings in family proceedings but declined to do so preferring to deal with those wider issues by referring the matter to the President and to McDonald J, (who with the President’s approval has published guidance on the conduct of remote and hybrid hearings in the family jurisdiction), to consider whether the guidance needs amendment to address the difficulties faced by disabled litigants in general and those with hearing loss in particular.
The Court confirmed that, in the meantime, the guidance given in Re C applied, including in the Court of Appeal.
It was noted that in the case of a remote or hybrid hearing, where the party, interpreter and/or intermediary are not together in the same room, it will be necessary to consider how they can communicate with each other separately from and alongside the platform through which the hearing has been conducted.
That may or may not be a matter for a court direction, but it will certainly be something to be considered and arranged by the parties’ solicitors.
The case is also a very helpful reminder of the importance of judicial continuity particularly where there has been a fact finding hearing.
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BACKGROUND AND FACTS:
The case involved care proceedings in respect of a baby, Y, and his older half-siblings, brought when Y, still only a few weeks old, was taken to hospital and found to have sustained 10 fractures of various ages and a number of bruises.
The parents were profoundly deaf and participated in the court proceedings with the assistance of sign language interpreters. The mother (M) was assisted by a deaf-registered intermediary. Their participation in the proceedings had been made more difficult as the hearings were conducted remotely.
In the course of the proceedings the parents accepted that the injuries had been inflicted by the father. (F)
Following a fact-finding hearing a series of findings were made against both the parents some of which were accepted and some not.
The parents accepted that the fractures had been inflicted by F, that he had been violent to M, that M had failed to take appropriate action in response to his treatment of her, placing herself and the children at risk from his volatile and violent behaviour.
In addition, the judge, found on a balance of probabilities, that the bruises had also been inflicted by F, that M knew that F posed a risk of harm to Y but had failed to protect him and that F had failed to seek timely assistance for Y.
In reaching those findings, the judge concluded that the parents were willing to lie when it suited them and had lied to the court about a number of matters, particular about their relationship.
Importantly, however, the Court of Appeal said it was clear from the fact finding judgement that the judge looked carefully at the totality of the evidence relating to the findings he was being asked to make and in doing so considered with particular care the evidence given by the parents further commenting that:
It can therefore be said with confidence that by the conclusion of the care proceedings he was fully aware of the issues and the circumstances of the family and the particulars of the parents.
Y had been living with his foster carers for nearly 18 months when they subsequently indicated a wish to adopt him and issued an application to do so.
The parents then filed an application for leave to oppose the adoption.
The father, who was then acting in person, also made an application to re-open the fact finding hearing.
By the time of the second adjourned hearing the matter was being affected by the Covid 19 crisis.
On 29 June 2020 the judge dismissed the father’ application to re-open but granted the parents’s application to oppose the adoption order and refused the LA’s application for permission to appeal.
The LA filed a notice to appeal to the Court of Appeal and permission to appeal was granted.
It is not intended in this article to set out the parties’ arguments and submissions but to emphasise the following points from the leading judgement given by Lord Justice Baker from paragraph 34 onwards:
With reference to the two-stage process reiterated most recently by Peter Jackson LJ in Re W [2020] EWCA Civ 16 ( at para 9 and referred to specifically in this judgement at para 13) it was accepted that the judge was aware of and had properly applied the correct legal principles when determining an application for leave to oppose an adoption order.
“First, the court has to be satisfied that there has been a change of circumstances of a sufficient nature and degree. Only if there has been such a change will the court have a discretion to permit the parents to defend the proceedings, the child’s lifelong welfare being the paramount consideration in that decision.” (Para 34).
The judge determined the issue in this case on the basis of written evidence and submissions and did not hear any oral evidence.
With a reference to Re P [2007] EWCA Civ 616 at para 56 as also referred to in this judgment at para 13):
“It is accepted on behalf of the Local authority that he was entitled to proceed on that basis” (Para 35).
On the other hand, (Counsel for M ) is right to say that, when assessing whether they had been a sufficient change in circumstances, the judge was not entitled simply to accept the parents assertions of change at face value. He was required to carry out some evaluation of those assertions in the light of all the circumstances, in particular the history of the family and his findings in the previous proceedings. (para 36).
It is clear from his judgment, however, that the judge plainly had his earlier findings in mind…… and took them into account in considering whether the assertive changes of circumstances was sufficient. He was obviously aware that the father had resiled from his previous acceptance of responsibility for inflicting the fractures (having rejected F’s application to re-open the FFH).
The judge also took into account the fact that most of the changes of circumstances asserted by the parents….. were challenged by the Local authority and at that point untested and would therefore require further investigation. Making due allowance for that point, however, he concluded that the evidence of change was sufficient to open the door to the exercise of his discretion whether to grant leave to oppose the adoption.(para 37).
However, Baker LJ, said that, given the judge’s experience of the case and deep understanding of the issues, it could not be said that he was wrong to reach the conclusion that he did being “uniquely placed to evaluate whether the changes of circumstances asserted by the parents were sufficient. It is plain from the judgments in the care proceedings that he had a deep and detailed understanding of the history of this difficult and sensitive case, of the characters and conduct of the parties, and the needs of this little boy.” (Para 38)
With reference to the second limb of the two stage process required, Baker LJ, said that the judge had emphasised that what he was evaluating was not the prospect of Y being returned to the parents care but, rather, the prospect of the parent successfully opposing the making of the adoption order……. and, having carried out a careful and balanced analysis……..concluded that….. It was in the interest of Y’s welfare throughout his life to have another look at the question whether the need to preserve family relationships, in particular sibling relationships, continues to be outweighed by the greater permanency which adoption would bring.
(Para 39)
After making further references to the need for the court to consider delay and the fact that Y was settled with his foster carers with whom he had lived all his life save for the first few weeks Baker, LJ, said these matters “had to be considered in the context of the child’s welfare throughout his life”. (Para 42)
IN CONCLUSION BAKER, LJ, SAID:
“Not every judge would have given leave in the circumstances but it does not follow that this judge was wrong to reach that decision. Given his knowledge and experience of the case, he was better place than anyone to make that evaluation. The local authority has not persuaded me that he was wrong to grant leave and I therefore dismiss the appeal.
(Para 43)
I must emphasise, however, that it does not follow from the fact that the parents have been granted leave to oppose the adoption application and that this appeal has been dismissed that the parents will ultimately succeed in resisting the adoption application. The judge stressed their arguments and assertions will require careful scrutiny. It is evident that in a number of respects their arguments and assertions will be strongly challenged by the local authority and guardian. It is also clear that there are strong arguments in favour of adoption in this case”. (Para 44).
