Case No: B4/2012/0575 & 0576
Neutral Citation Number: [2012] EWCA Civ 1217
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY 
FAMILY DIVISION
(HIS HONOUR JUDGE ATKINS)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 24 July 2012

Before:

LORD JUSTICE McFARLANE

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IN THE MATTER OF I (A CHILD)

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Mr Richard Wilson QC and Mr Malcolm MacDonald (instructed by Fisher Meredith LLP) appeared on behalf of the Appellant.

The Respondents did not appear and were not represented.
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Judgment
Lord Justice McFarlane:   
1.	This is an application for permission to appeal orders made by HHJ Atkins on 17 February 2012 sitting in the Principal Registry.

2.	The application for permission is brought by Mr I, who is the father of a young child, the subject of the proceedings, and Mr I’s mother, Titilayo I, the paternal grandmother.

3.	The unfortunate child who is the subject of these proceedings is Mr I's daughter, N.  The child's mother, CW, very sadly is a lady who has suffered over many years from difficulties that developed within the experiences during her childhood.  It is said that she now suffers from poor mental health and abuses drugs and alcohol. She was represented by the Official Solicitor in the proceedings and has played no active part as I understand it in the court process in recent times.

4.	The short history is that young N was born premature on 19 October 2008.  She required intensive care for a long time and in essence she had substantial difficulties in effect in breathing and she developed glottal stenosis.  She required a tracheotomy.  She was in hospital from the time of her birth for some seven months before she was discharged to foster parents on 5 May 2009.

5.	Fortunately for her she has been able to remain in the same foster home and it is now the plan endorsed by the court for that foster home to be her long‑term home.

6.	The proceedings for the latter part of their life have been before Judge Atkins and there was a substantive hearing in October 2011 where the judge heard the case for the father and the paternal grandmother, which was for them to be given further active consideration as the potential long‑term carers for N.  An application was made for further assessment of them.

7.	The judge, however, having heard all the evidence, ruled the father and the paternal grandmother out and dismissed the application for a further assessment.  That decision was the subject of an application to this court but on 24 January 2012 Ward LJ refused permission to appeal.

8.	The question for the court subsequently and at the hearing which is the focus of this application in February 2012 was, therefore, the legal structure that would govern N's future with the foster carers.  The application made by that stage by the local authority was for a placement for adoption order, but the plan plainly was for the ultimate adopters to be the foster carers.

9.	Again Judge Atkins heard evidence and gave a full judgment on 17 February 2012.  He concluded that adoption was very much in N's best interests.  He dispensed with the consent of the father and he made a placement for adoption order.

10.	Part of the background of the case is that the father and the paternal grandmother have had regular contact with N over all of the period that I have described.  The agreement between the parties was that that contact should continue.  On that basis, the judge made no order for contact at the time of making the placement for adoption order.

11.	The application for permission to appeal was lodged on behalf of both father and grandmother on 9 March.  The matter came before Black LJ on 30 April on paper and she refused permission to appeal.  At that time the grounds of appeal put forward focused upon alleged deficiencies and flaws in the process before the Adoption Panel. There was a further ground that challenged the judge's approach to the welfare test and his application of section 1 of the Adoption and Children Act 2002 by in particular, it is said, failing to give proper weight to the effect on the child of ceasing to be a member of the original family and the relationship that the child had with the father and the grandmother.

12.	Black LJ refused permission to appeal and thus it is that this morning I have heard oral submissions on behalf of the two potential appellants from Mr Richard Wilson QC leading Mr Malcolm MacDonald.

13.	The case as it is now put on behalf of the two potential appellants has changed in character.  It now focuses upon first of all the failure of the judge to take ownership of the issue of contact and make a contact order cementing the agreed position as it was between the parties.  It is also now a part of the case with greater clarity than was hitherto within the draft grounds of appeal that making a placement order was unnecessary and disproportionate in its interference with the Article 8 rights of N and the paternal family.

14.	In looking at these papers as I do in coming to the case afresh, it seems to me that the issue before the judge was narrowly but importantly to determine the legal status that N would have in the care of the foster carers.  It is therefore surprising that the judgment of 17 February 2012 makes no reference to special guardianship.  The only reference in the two judgments to special guardianship appears in paragraph 39(b) where the judge says:

"Special guardianship would be a possible solution but has disadvantages.  For example it expires at age 18 and would provide less permanency for [N] than adoption."

15.	There is now a developed body of case law to assist courts in determining this very question of status as between special guardianship and adoption. Mr MacDonald who appeared below candidly explains that whilst the issue was put before the judge in round terms, he was not given the assistance that he might have been given by being taken to these cases.

16.	 It does seem to me that the distinction between special guardianship and adoption was the topic that should have been uppermost in the court's consideration in a case such as this, where it is common ground that the natural family, at least the paternal half of it, will continue to play a meaningful part in the young child's life over the years.

17.	The observations that I have just made seem to me to be in tune with, but be a development of, the grounds of appeal that are now put before this court.  It also seems to me that it is not possible for the judge to answer the question in section 52 of the Adoption and Children Act 2002, namely: does the welfare of the child "require" adoption, as opposed to some other form of order, unless the court has given active and detailed consideration to the pros and cons of the other form of order, namely special guardianship in this case.

18.	The judgment of Wall LJ (as he then was) in Re P [2008] EWCA Civ 535 is very much to the point that the test for dispensing with consent requires precisely that exercise.

19.	I, therefore, do consider that there is merit in allowing this appeal to proceed on the grounds 2, 3, 4 and 5 as they are currently pleaded, but on the basis that Mr Wilson and Mr MacDonald agree to draft a further ground which encompasses the point about special guardianship that I have just attempted to describe.

20.	I, in like mind with Black LJ, think there is nothing arguable in the point about the Adoption Panel.  The Adoption Panel process in any event is about to become a thing of the past following 1 September when the need to go to a panel is removed from the statutory regime.

21.	Where a judge has considered fully all the evidence and made a decision, it is the judge's decision that has to be looked at and whether or not the panel process was flawed and in some way falls foul of the observations of the court in the case of Re B [2002] 1 FLR 545 is of lesser significance.

22.	I therefore refuse permission to appeal on Ground 1.

23.	The decision to grant permission to appeal will be no doubt received with a heavy heart by the foster carers of N and the professionals involved in supporting them.  That will be particularly the case as it is now over five months since the original decision.  I hope they understand that nobody is questioning their ability to care for N or the fact that N will remain in their care during the rest of her childhood and no doubt beyond.  Equally I have absolutely no view as to whether adoption or a special guardianship order should have been chosen by the judge.  All I am doing is observing that the judicial process did not sufficiently engage with the option of special guardianship and - given the importance of the decision - that now needs to be looked at as quickly as possible to determine whether or not the judge was in error and, if so, what the future outcome should be.

24.	I therefore give permission to appeal on that basis.

Order: Application granted in part