B1/2004/1297 
Neutral Citation Number: [2004] EWCA Civ 1187
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM SWINDON COUNTY COURT
(HIS HONOUR JUDGE WADE)
Royal Courts of Justice 
Strand 
London, WC2 

Friday, 20th August 2004
 
B E F O R E:

LORD JUSTICE KEENE 
LORD JUSTICE WALL 
LORD JUSTICE NEUBERGER 
 
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G (CHILDREN) 

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MISS E PLATT QC and MR G CRAWLEY (instructed by Messrs Kidd Rapinet, Reading RG1 1SQ) appeared on behalf of the Applicant Guardian
MR L SWIFT QC and MISS J MURRAY (instructed by Director of Law & Corp. Governance, Swindon Borough Council, Civic Offices, Swindon SW1 2JH) appeared on behalf of the Respondent Local Authority
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J U D G M E N T
1.	LORD JUSTICE KEENE:  I shall ask Lord Justice Wall to give the first judgment.
2.	LORD JUSTICE WALL:  We have before us two applications, one for permission to appeal and the second for an extension of time.  These arise in the following way.  On 14th May 2004, in the Swindon County Court, after a hearing which lasted three days, His Honour Judge Wade made orders under the Adoption Act 1976 freeing two children for adoption.  Those two children, both girls, are CVG and DRG.  C was born on 22nd March 1999, so she was five at the date of the judge's order: D was born on 10th October 2000, so she was then 3 years and 7 months old.  The mother of both children is called KM (Ms M) and their father is a man called NG.  In making the freeing orders, the judge dispensed with the agreement of both parents on the ground that their agreement was being unreasonably withheld.
3.	At the time the freeing orders were made, both children were in the care of the local authority, Swindon Borough Council, pursuant to full care orders made by the same judge in contested proceedings on 9th March 2004.  The local authority's care plan in the care proceedings, with which the judge agreed, was that the two girls should be adopted.  In relation to contact, both care plans proposed indirect contact with the children's birth family.
4.	C and D have five half-sisters, all of whom were subject to the same care proceedings, and whom I will identify in just a moment.  The outcome of the care proceedings relating to the other children was that the eldest went to live with her father, and the remaining four were made the subject of interim care orders, as the judge regarded the care plans for them as inchoate.  Those four children were placed with two different sets of foster parents, and the judge adjourned their proceedings until 12th July 2004.  We have been told this morning that on that date the judge agreed that there should be a further assessment of those children's needs.  They therefore remain in foster care pending a final determination.
5.	I relate these facts to indicate two things: the first being that the judge had an intimate knowledge of the proceedings and, secondly, that they are of some complexity.  Ms M and the children's guardian, Daphne Chirgwin, sought the judge's permission to appeal against the freeing orders.  The guardian also sought a stay.  The judge refused both applications.  The application for permission and for an extension of time was renewed by Ms M and the guardian on paper.  On 2nd August 2004, I directed that the applications for permission should be listed on notice to the respondents to the appeal, with the appeal to follow if permission was granted.  I directed that the application should be expedited.  The reasons I gave for making these directions were as follows:
"The care plan, on which the judge made care orders, was for adoption.  Realistically, therefore, the only question is whether it was appropriate for the judge to make freeing orders and to dispense with parental agreement at that stage, or to deal with the question of parental/sibling contact in the context of a placement with identified prospective adopters.
This is never an easy question for a judge, and there are powerful arguments in favour of the course which the judge adopted.  On the other hand, the judge appears to have changed his stance on the question of direct contact, and his decision to free the children for adoption may have been premature.
The appeal may therefore be arguable."
I added this:
"The parties should give consideration as to precisely who needs to be represented on the application.  The local authority should come armed with up to date information as to both children and the extent to which plans for placement have been advanced."
6.	Pursuant to that last direction, the local authority has filed a statement from Miss Veronica Crossley, the author of the local authority's report made in the freeing proceedings under Schedule 2 of the Adoption Act.  This discloses the following information: (1) prospective adopters have been found and approved by the adoption panel; (2) final contacts between the children and their parents and also a family meeting have taken place; (3) both parents have met the prospective adopters; and (4) the children have been placed with those prospective adopters.  Mrs Crossley adds that the prospective adopters "are not adverse to direct contact in the future" but make it very clear that indirect contact in their view is in the best interests of the children at this stage in their lives.  However, they are reported as saying that they will investigate direct contact or instigate direct contact at the right time.
7.	In order to explain how we reach the current position, it is I think necessary to revisit the care proceedings relating to C and D, albeit as briefly as possible.  These were heard on 9th March 2004 and they related to all seven children.  Apart from C and D, Ms M has five other children by a total, in relation to all seven children, of four different fathers.  The children in descending order of age are: KLM born in April 1993; SM born in February 1994; KAM born in February 1995, LM born in May 1996; and PM born in February 1998.  The ages thus range from 11 to three and were born over a period of some seven and a half years.  The local authority's case in the care proceedings was not that Ms M was a cruel or abusive parent.  It was rather that due to her own chaotic, abusive and seriously disadvantaged childhood and upbringing, she was simply not competent as a parent to give her children what the social workers still, I think, call "good enough care".  She was quite unable to impose boundaries for her children, this being particularly important in relation to sexual issues as they were all girls, or to discipline them or to provide them with mental stimulation.  The result is seven very disturbed children.
8.	As I have already indicated, Ms M made it clear in the care proceedings that she could not look after C and D.  The inevitable result of that was care orders with the care plan being for adoption.  As I have already indicated, I think, that plan was supported by the guardian.  That left, of course, the question of what contact (if any) Ms M should have with the children post-adoption.
9.	In relation to that, the judge, towards the end of his long and careful judgment in the care proceedings, recognised the existence of the family ties and in relation to adoption said:
"I also think that Swindon should be encouraged to look for adopters for whom post-adoption face to face contact is a possibility."
Otherwise he approved the care plans in relation to the two children.
10.	It is right to say, and I think relevant to the judge's subsequent thinking, that the judge had the benefit of a very powerful report in the care proceedings written by a child psychologist, Viki Simpson, who had been jointly instructed to report.  The guardian's solicitor had taken the lead, as is customary in care proceedings of this kind.  But as it happened, and it does sometimes happen, the guardian did not agree with Ms Simpson's conclusions.  That of itself is no criticism.  A guardian is not automatically bound to accept advice obtained in this way.  But if she dissents from it, she must plainly have good reason for doing so, and must do so properly on the basis of her own expertise.  More important of course is the view which the judge takes of the expert evidence.
11.	It is not necessary for me to refer in detail to Ms Simpson's report, but it is I think relevant to the question of subsequent inter-sibling contact to note that Ms Simpson recorded each of the respective children as suffering from a whole range of disadvantages.  K is perhaps paradigmatic of the remainder.  She was underachieving at school.  She had witnessed considerable domestic violence.  She had been at risk of physical harm.  She had suffered chronic neglect and emotional abuse whilst in the care of her mother, and had undoubtedly been traumatised by her experiences during that time.  She continued to suffer from depression and low esteem, frequently found in chronically abused children.  She had recently stolen money from her mother -- something which was, in Ms Simpson's view, symptomatic of depression.  She was an insecure child.
12.	The catalogue of the other children makes equally dispiriting reading.  S, apart from the difficulties I have already identified, had been allowed to become and remain in a dirty, unkempt state with poor hygiene.  She had as a consequence been ostracised at school and she, like her siblings, had experiences the catalogue of neglect which Ms Simpson recognised in K.  I need not, I think, go through the other children.  The picture is very much the same, and self-evidently in that context what cried out for the two youngest children was settled, secure, permanent placements.
13.	Against the background I have described and with the recent events which have occurred, I have to say it seems to me that Miss Platt's task in persuading this court to grant permission to appeal is a very difficult one.  In the first place, the care plans upon which the local authority based its application for care orders for these two children were for adoption, and subject to the question of post-adoption contact, the guardian herself favoured adoption for C and D.  Indeed, to the family practitioner's mind, adoption stands out from these papers in relation to these two children.  Furthermore, in the care proceedings, the judge recorded Ms M's wish to care for C and D as "an expression of motherly hope"; realistically Ms M recognised that she could not care for those children with the other four children.  The eldest child, as I indicated, was living with her father.  Secondly, of course, the children have now been placed with prospective adopters.  Were we to give permission in this case, and to allow the appeal, the freeing orders would be set aside and the prospective adopters would be obliged to bring adoption proceedings in the normal way.  In my judgment, those proceedings could only have one outcome.  The court would be bound to make adoption orders, and in so doing would be bound to find that Ms M was unreasonably withholding her agreement, if indeed she did not give it.  The only effects of requiring the adopters to take proceedings, therefore, would in my view be to cause delay, additional expense, and to create further tension, particularly for Ms M who has now gone through the painful process of separation from the children, and who has excused her attendance here today (wholly understandably, in my view) by stating, through her solicitors, that she would find the day too much of an ordeal.  In my judgment, she should be spared if possible the unnecessary additional stress and tension which further proceedings would engender.
14.	Miss Platt, it seemed to me, also had this difficulty, namely that on the key question of contact she found it difficult to formulate the order she would invite the judge to make.  She recognised, I think, that even on the guardian's stance an order for direct contact between C, D and their parents and half-siblings would be inappropriate.  What she argued was that the question required a proper airing in the context of adoption proceedings, and that what could be sought from the judge was a clear indication of the course future contact should take.  I have considerable difficulties with that argument.  It seem to me that in any contested adoption proceedings relating to contact, the judge, whether it was Judge Wade or one of his colleagues, would be bound to respect the adopters' standpoint as previously described.  I cannot, speaking for myself, see any judge making an order for direct or even indirect contact in this case, or making the adoption order subject to a condition that direct contact should take place unless those matters were specifically agreed with the prospective adopters.  The best Ms M could do, in my judgment, or achieve in the proceedings is what is currently on offer, namely indirect letter box contact followed by an assurance that direct contact will be considered in due course.
15.	It must, I think, be kept in mind that by adopting these children, the prospective adopters become their parents.  This is an obvious truism, but important.  They exclusively will have parental responsibility for the children and their position must, inevitably, be given substantial weight.  Furthermore, given the chaotic disturbance shown by the other children, the question of inter-sibling contact does not seem to me necessarily an easy or straightforward one.
16.	The modern law does not wholly shut out former parents whose children have been adopted or freed for adoption.  There is a safety net.  Such a parent can make an application post-adoption for permission to apply for contact.  There will have been letter box contact: it will be open in the future for Ms M to apply for permission to apply for contact, if it transpires that the adopters change their current stance.
17.	Similar considerations, in my judgment, apply to contact between the half-siblings.
18.	As I indicated in my written reasons for directing that the application be listed for oral hearing, the decision which the judge had to make in freeing the children for adoption and dispensing with agreement was a difficult and finally balanced one.  However, like so many children's cases, events have moved on.  He order was made in May and it is now mid-August.  In my judgment, it is not in the interests of these children, in the position in which they now find themselves, as I said before, to be the subject of further litigation.  The pattern of their lives is now clear, and the case against further investigation seems to me very powerful indeed.
19.	The fact that the case has moved on clearly puts in perspective the application for permission to appeal out of time.  The difficulties are the usual ones relating to the extension of the children's certificates.  The judgment was on 14th May.  An application to the LSC was made on 28th May following receipt of a favourable opinion from counsel, who had not appeared at the hearing below.  The LSC's decision was not received until 9th June for C and 14th June for D.  The appellant's notice was received in the office on 15th June 2004.
20.	This is a child case in which there was no stay, and where the children were in care with a care plan for adoption.  It was clear from the proceedings themselves that the local authority were taking active steps to find prospective adopters.  In my view, in such a case, harsh though it may sound in one sense, the time limits for bringing appeals must be strictly obeyed.  Mr Swift QC submits there is no merit in the application for permission to appeal out of time, and I have to say I agree.  Inevitably, however, we have looked at the merits of the appeal, and although I have expressed my views quite forcefully already, I will, I hope, deal quite shortly with the remaining issues raised before us, before returning to the question of permission to appeal out of time.
21.	The position of the guardian is set out in two skeleton arguments, the first by Mr Crawley in the context of the appellant's notice and the second written jointly by Miss Platt and Mr Crawley for this court.  The essence of their case, and I hope I do not misrepresent it, is that the judge was wrong to treat this case as one of freeing.  Since the question of contact post-adoption was clearly in issue, the judge should have refused to dispense with parental agreement and refused to free the children for adoption: he should instead have waited until the local authority had identified prospective adopters and then proceeded in the normal way.  Post-adoption contact could then rationally have been discussed in the concrete circumstances of a prospective adoptive placement.  In her report in the freeing proceedings, the guardian puts the matter in this way: 
"It is my view that there are fundamental issues as to the appropriateness of a Freeing Order.  These children are enjoying beneficial contact with their parents and half-siblings.  In my view it is premature to issue Freeing applications for these children, who at the time of the applications are having beneficial contact with their parents, because the level and extent of contact is something which should be determined with the prospective adopters in an adoption application.  Contact will support an adoptive placement and without such contact it must be questioned as to whether adoption should proceed.  In the circumstances it is inappropriate to assert in the application that a parent who seeks to continue such contact (ie at the date of the application) is unreasonably withholding his or her consent to the Order freeing the children for adoption."
22.	In my judgment, whilst that paragraph in many senses states a conventional proposition, it goes too far, certainly on the facts of this case.  In my judgment, it ignores the fact that the children in question are in care with a care plan for adoption which the guardian herself had supported in the care proceedings.  In my judgment, the judge cannot be criticised on this ground for proceeding to free the children for adoption.  As Mr Swift correctly pointed out in argument, this was a judge who knew this case extremely well.  He had had an extended hearing in the care proceedings and three days on the freeing application.
23.	Mr Crawley in the first skeleton argument raises issues under Articles 6 and 8 of the ECHR in relation to the other children who are not represented in the freeing proceedings.  Speaking for myself, I do not think that the Convention arguments add anything to the debate.  This was a judge who, as I said just a moment ago, had heard contested care proceedings over many days in relation to all seven children: before him was a guardian who had represented all seven children in those proceedings and who brought to the freeing proceedings her knowledge of them and the importance of inter-sibling contact.  I do not think that separate representation of the other five children in the freeing proceedings was either necessary or desirable.  Even if that representation had been granted, I anticipate the same guardian would have represented them.  Their parents and the local authority were all fully attuned to the fact that C and D were part of a substantial extended family.
24.	Miss Platt complained that the judge had failed properly to explain his rejection of the guardian's steadfast opposition to the freeing order.  She also complains that the local authority produced inadequate evidence of their search for prospective adopters.  She pointed to the judge's favourable findings that Ms M would not disrupt an adoptive placement and that the complexity of any necessary arrangements should not a bar to inter-sibling contact.  The judge, she said, had been wrong to follow the evidence of the psychologist, Ms Simpson, that there should be no consideration of direct contact for a period of several years post-adoption.  But above all, she submitted, as I indicated earlier, that where you have positive ongoing contact between children and their half-siblings and parents, freeing for adoption is not the right course.  The place to consider that is the adoption application itself.
25.	The local authority's case, unsurprisingly, is that, having regard to the placement of the children, permission to appeal should not be granted.  As to the application itself, Mr Swift and Ms Murray in their skeleton arguments support the position taken by the judge.  They emphasise the chaotic and disturbed background to the children.  They emphasise the urgency of the children to be placed with suitable adoptive parents after protracted care proceedings.  They make the good point, it seemed to me, that no therapeutic work could be undertaken with the children until they were in a permanent placement and, despite the judge's findings, they were reluctant to accept that they could be confident that Ms M would not seek to disrupt the placement.  Speed was, they submitted, of the essence.  There was no advantage and every disadvantage in delaying the decision.
26.	When I look at the judgement which the judge gave, I am impressed by the fact that he seems to me to have recited the arguments.  He identified and was alert to all the issues.  His decision to proceed with the application to free and to grant the freeing orders was manifestly a decision which was open to him on the facts and as a matter of discretion, and has been vindicated by subsequent events.  I think it would now be potentially damaging to the children, the prospective adopters and the parents if the matter were now to be reopened.  It is clear to me, despite the submissions that have been made, that the judge did give consideration to the question of inter-sibling contact.  He specifically says so.  He decides that he should prefer the evidence of Ms Simpson to that of the guardian.  He gives reasons for doing so, and he emphasises that there is in his view a priority, in fact the priority, is to settle the two children in their adoptive placement.  He says at page 12, line 7:
"In my judgment these children need a significant period of time in which to settle into their adoptive family and to bond properly with that family.  It is the inevitable result with children being adopted, that the adoptive family assumes the major role in their lives.  For the reasons given by Vicki Simpson I consider that continuing direct contact is likely to make that process more difficult."
Slightly later he says:
"It is the view of Veronica Crossley that after adoption there may come a time when it is appropriate [i.e. direct contact].  It is also the view, as I said, of Vicki Simpson.  It is a question, it seems to me, largely of timing.  It would be unfortunate if adopters were not found who could accommodate this."
Over the page, as I indicated a moment ago, he says in terms:
"I have, of course, considered the position, not only of the parents, but also, very importantly, of the siblings, the five other children.  I realise that there are immensely strong relationships here.  I have reminded myself of all the evidence about that, that was given in the care proceedings.  Of course, I reviewed the position as set out in these proceedings.  I realise that the cessation of direct contact at this stage, even by gradual reduction, may be difficult for all the children as well as for the parents.  They will all need a very sympathetic and compassionate approach.  But it is my duty - I stress this - it is my duty to consider the overall picture, including the long term interests of these two little girls."
27.	In my judgment, the judge's approach cannot be faulted.  He was entitled to take the course he did and I would accordingly refuse permission to appeal on the merits.  But as I indicated earlier, I also take the view that there is no merit in the application for permission to appeal out of time, and I would also, speaking for myself, refuse that application.
28.	LORD JUSTICE NEUBERGER:  For the reasons given by Lord Justice Wall, I would also dismiss this application, and indeed also would refuse the extension of time for permission to appeal.
29.	LORD JUSTICE KEENE:  I also agree. 
ORDER:  Applications for permission to appeal and an extension of time in which to file the appellant's notice refused. 
(Order not part of approved judgment)