Abstract
South Eastern Health and Social Care Trust v M (Freeing proceedings under the Adoption (NI) Order 1987 1
The High Court
Stephens LJ and Sir Richard McLaughlin (Stephens LJ giving judgment)
18 December 2018
These proceedings concerned a 2012 Trust application for an order freeing ‘Mason’ (a fictitious name awarded by the court) to be adopted by his long-term foster carers. His mother ‘M’ withheld her consent. At that stage, the only issue was whether Mason should remain with his foster carers or be freed for adoption by them. Sir Reginald Weir had then decided on the former option. 2 In the present proceedings the Trust appealed against that order, supported by Mason’s guardian.
Background
Mason was born in June 2011, one of four siblings all of whom became the subject of care orders: one being subsequently freed for adoption; two eventually returning to maternal care. He was made the subject of an interim care order on the day of his birth and discharged from hospital directly into the care of foster carers who had said from the outset that while they would prefer to adopt him if possible, they were committed to his long-term foster care should that be the outcome of the proceedings. The judge had found the foster carers to be excellent in all respects. He had also found that the father had taken little or no interest in Mason since his birth, had never sought contact (direct or indirect) nor engaged with social workers and had taken no part in the proceedings. He noted the record of failings in maternal care, including the mother’s aggression and refusal to co-operate with Trust social workers, and that the matter had come before the court on multiple occasions (for further detail on the factual background, see Adoption & Fostering 42(3): 312‒316).
The proceedings before Sir Reginald Weir
The 2012 proceedings concluded with the judge directing specified assessment and therapeutic intervention. In June 2013 he made the full care orders applied for and as Stephens LJ commented: ‘We consider that at this stage the judge had in mind a care plan of rehabilitation of Mason to M, failing which long-term foster care or adoption.’ In the event no order was made directing an assessment. A hearing took place in October 2013 in relation to the freeing application but no judgment was made; instead there was a period of delay ordered by the judge to determine the prospects for rehabilitation. Sir Reginald Weir delivered his judgment on 1 June 2018.
Interim developments
Between October 2013 and June 2018 further reports were submitted to the judge from the guardian and the Trust. The guardian reported that Mason had become more aware of the fact that his care arrangements were constantly under scrutiny by professionals and was concerned about his placement status. She also reported that Mason spontaneously said that he wanted to be adopted and that he wanted to use the surname of his foster carers: ‘This is how he wishes to be known; he believes that this will give him the security and certainty of belonging in a permanent way within the foster carers’ family and will confirm him as a fully integrated member of their family.’ She referred to Mason’s present emotional insecurity and that this had also been noticed by the social workers and his teacher who had observed negative emotional impact on Mason in and around the days of contact with M. The guardian reported that she had been told by one of the foster carers about an incident when M, in the presence of Mason, had said it was her intention to ‘get all of her children back’. The guardian in her report also stated that M’s engagement with professionals was reported at times to be ‘hostile and aggressive’. The guardian concluded that ‘on the basis of all of the information available that the disadvantages of adoption have decreased and the advantages of foster care have also decreased’. Consequently the guardian was of the professional opinion that adoption is not only the ‘right’ option for Mason, it is the ‘only’ option to secure and protect his needs and welfare now and throughout his life.
The present proceedings
This hearing confined itself to the legal principles strictly necessary to determine the appeal which would only be allowed where the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The decision of the lower court may be unjust if a judge fails to give adequate reasons for his determination. 3 Should the court allow the appeal it may then either determine the freeing application itself, as there is an evidential basis for doing so, or in the alternative it should remit the application for hearing before a different judge. 4
In relation to the legal principles, Stephens LJ stated that the welfare principle in Article 9 of the 1987 Order was the governing consideration and noted that: In circumstances where, as here, the realistic proposals are long-term foster care or adoption then a welfare analysis of both of these proposals in respect of the child must be carried out. That is not an option. It is a requirement that both proposals are validly considered on their own merits as they affect the particular child. There is a fundamental requirement in deciding on whether long-term foster care or adoption is in the best interests of the child for the court to ascertain, listen to and give due consideration to the voice of the child … A determination of welfare as between the options of long-term foster care or adoption, absent consideration of the voice of the child, is deficient.
He explained that ‘in determining whether the interference is proportionate there has first to be a welfare assessment, which in this case would be a welfare assessment as to whether adoption or long-term foster care is in the best interests of Mason’.
Discussion
Firstly, in relation to the welfare principle, Stephens LJ noted that Sir Reginald Weir had stated that as everyone was agreed that Mason should permanently reside with his foster carers ‘there [was] no remaining consideration pertaining to Mason’s welfare’. Stephens LJ commented: We do not consider that to be accurate as an agreement as to the permanence of residence did not address or resolve the issue as to whether adoption or long-term foster care was in Mason’s best interest. There was that remaining issue as to welfare about which there was a considerable volume of evidence. We consider that the judge failed to identify this issue in his judgment and as a consequence of having failed to do so that the issue was not resolved. It is not possible from the judgment to say whether the judge decided that one or other option was better than the other … As the judge did not address or resolve the welfare issue as to adoption as opposed to long-term foster care and did not consider the wishes and feelings of Mason as to those options we consider that the issue as to whether M was or was not unreasonably withholding consent was not appropriately addressed and also we consider this to be a serious procedural irregularity. The issue as to Mason’s wishes and feelings required analysis and if they were or were not to weigh heavily in relation to welfare then reasons ought to have been but were not given. For all these reasons the welfare issue as to whether adoption or foster care was in Mason’s best interest was not addressed or resolved and no reasons were given. This in turn means that there was a serious procedural irregularity. We do not consider it to have been purposeful to delay judgment in this case either at all or for the period involved both as a matter of general principle and also by reference to the particular facts of the case. Almost every family case involves a predictive exercise. No case should be delayed apart from in the most exceptional circumstances to determine whether a prediction is accurate and even if it is, the delay should be strictly limited.
Held
Appeal allowed. Remitted for determination to a different judge.
Comment
Mason was placed at birth in this agreed permanent placement but was aged seven by the time a decision was taken as to the appropriate status of his carers. The uncertainty and anxiety caused to him, as well as to the carers, was clearly detrimental to his welfare: children need to know where their home is; where they ‘belong’. He had made his feelings known but they had not been taken into account.
This was a damning indictment of Sir Reginald Weir’s earlier ruling and one which will stand as a reminder to all decision-makers that children must be heard and that undue delay is contrary to their welfare.