Neutral Citation Number: [2007] EWCA Civ 55
Case No: B4/2006/2356/2399
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM 
HIS HONOUR JUDGE WYN RICHARDS
SWANSEA COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 06/02/2007
Before :

LORD JUSTICE SCOTT BAKER
LORD JUSTICE WALL

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AJ (Child)

Between :

	JJ & MJ (Mother and Father)	Appellant	
	- and -		
	AT & AT (The Adopters)

Neath Port Talbot Borough Council (Local Authority)

AJ (Child)	1st Respondent
2nd Respondent
3rd Respondent	

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Ruth Henke QC and Matthew Rees (Junior) (T Llewellyn Jones and Gaskell & Walker - Solicitors) for the Appellant
Lorna Meyer QC and David Crowley-Solicitor Advocate – (Cameron Jones, Hussell & Howe - Solicitors) and Graham Jones -Solicitor Advocate - (Smith Llewellyn - Solicitors) for the 1st and 3rd Respondents
Sue Jenkins (Local Authority - Solicitors) for the 2nd Respondent

Hearing dates : 6th December 2006
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Judgment
Lord Justice Wall : 
1.	This is the judgment of the court
Introduction
2.	The parents of AJ, a male child born on 8 April 2001 seek permission to appeal against an order made on 9 August 2006 by His Honour Judge Wyn Richards, sitting in the Swansea County Court. The order which the judge made was to dispense with the consent of AJ’s parents to his adoption by his paternal aunt (Mrs. T) and uncle (her husband, Mr. T) on the ground that it was being unreasonably withheld. The judge also directed that AJ should remain in his present placement pending the final hearing of the application by Mr and Mrs T for an adoption order.  In separate written reasons also given on 9 August 2006 the judge refused AJ’s parents’ application for permission to appeal. 
3.	On 22 November 2006, the parents’ renewed application for permission to appeal was placed before a single Lord Justice, Wall LJ, for consideration on paper.  He directed that the application should be listed before Scott Baker LJ and himself on 6 December 2006 with the appeal to follow if permission was granted. At the outset of that hearing, we granted permission to appeal, but at the conclusion of the argument reserved judgment. 
4.	This is the second of three appeals all of which raise the same issue, namely whether or not the child in question should be adopted or should be the subject of a special guardianship order under section 14A(6)(b) of the Children Act 1989 (the 1989 Act) as inserted by section 115 of the Adoption and Children Act 2002 (the 2002 Act).
5.	As will be already apparent, the case was heard under the provisions of the Adoption Act 1976 (the 1976 Act). This is because the adoption proceedings were issued prior to 31 December 2005, when the provisions of the 2002 Act came into force. This meant, of course, that in order to make an adoption order, the court had to be satisfied that adoption would safeguard and promote AJ’s welfare throughout his childhood (section 6 of the 1976 Act) and that his parents were unreasonably withholding their consent to his adoption (section 16(2)(b) of the 1976 Act). In this respect it is to be compared and contrasted with the case of Re S [2007] EWCA Civ 54 which was heard by a different constitution on 23 November 2006, but which is being handed down at the same time as this judgment. 
6.	In these circumstances, we do not propose to repeat, but nonetheless incorporate into this judgment paragraphs 41 to 77 of the judgment in Re S, which set out what is suggested should be the general approach of the court to cases which raise the question of special guardianship in the context of adoption proceedings, and which are agreed by all the members of each of the constitutions which heard the three appeals.
7.	Before turning to the facts of this appeal, we would like to record our gratitude to leading and junior counsel and solicitor advocates for AJ’s parents, his prospective adopters and his guardian. The case was extremely well argued on both sides. We were, in addition, provided with a substantial amount of background information, including excerpts from Hansard. We have attached to this judgment a helpful schedule, to which reference is made in paragraph 45 of the judgment in Re S entitled Schedule of Main Differences between Special Guardianship Orders and Adoption which set out those differences in tabular form. 
8.	We would also like to pay tribute to the industry of the judge, and the manifest care which he brought to his extremely thorough and well structured reserved judgment.
The facts
9.	AJ’s parents were married on 30 October 1998.  They were born within weeks of each other and are now both 40. AJ is their only child, although he has a half brother aged 22 and a half sister aged 16 on his mother’s side.  He also has a half sister on his father’s side who was adopted in 1992.
10.	AJ was removed from his parents’ care on 9 October 2001, when he was almost exactly 6 months old, and placed with his paternal aunt and uncle, who, in the proceedings before the judge were the applicants for an adoption order. They are now respectively rising 41 (Mr. T) and rising 42 (Mrs. T). They were married in 1985, and have one son, W, who is rising 11.
11.	The judge’s description of the relationship between AJ’s parents is not challenged. He described it as follows: -
21.	Their relationship was marred by incidents of domestic violence and separation. The father, in particular, has a considerable history of criminal offending, including offences of violence, theft, criminal damage, drugs, firearms offences and unlawful sexual intercourse. Following a conviction for violence on a previous partner, he was sentenced to a period of imprisonment of 3and a half years. The mother and (AJ) were at a Women’s Aid refuge when a referral was made to the local authority in June 2001.
12.	Following AJ’s placement with his uncle and aunt on 9 October 2001, his mother obtained a non-molestation order against his father, and his parents separated. However, the judge recorded the social worker as stating that AJ’s parents had separated and re-united at frequent intervals; that their relationship was chaotic; and that they continued to engage in criminal activities.  At the date of the hearing before the judge they were, once again, living together, but neither asserted that they were in a position to care for AJ. 
13.	The local authority’s care plan in the care proceedings instituted in 2001 was that AJ should remain with his uncle and aunt as long term foster parents, and that his parents should have contact with him.  A final care order was made on this basis on 26 September 2002. The judge records, however,  that the parents’ commitment to contact with AJ was inconsistent: - 
In the first nine months of the placement, the mother attended 33% of the arranged sessions, and the father about 20%. It was even less during the twelve months between September 2003 and 2004, when the mother attended 12% and the father 9% of the sessions arranged. It was arranged at a LAC Review Meeting on 29 May 2004 that contact should be reduced to one visit a month. However, as the social worker, was unable to contact the parents, the arrangements were never formalised.
14.	The judge deals with the remaining history as follows: - 
At a subsequent LAC review meeting in November 2004, a decision was made that it would be in (AJ’s) best interests to change the care plan from long term fostering to adoption and that contact should be further reduced to once every three months, supervised by Mrs. J (another) paternal aunt. 
25.	On 13 December 2004, the local authority formally recommended that adoption would be in (AJ’s) best interests and that he should be matched with his paternal aunt and uncle. They informed the parents by letter of the decision. Upon reading the letter, the father admitted in evidence that he reacted angrily. He immediately picked up the telephone and screamed at his sister (Mrs. T) to ask what she was playing at by making an application for adoption. He admitted that he has not spoken to his sister or to her husband ever since and described their relationship as non-existent.
26.	It was eventually agreed at meetings held on 16 December 2004 and 25 January 2005, that contact should take place on specific dates and should take (place) at the home of (Mrs. J). However, the parents could not be found and contact did not begin until 6 April 2005, when both parents attended. It is now agreed that from now on contact should take place six times a year.
15.	Mr and Mrs T issued their application for an adoption order on 24 August 2005. This followed applications by both parents for contact with AJ as a child in care under section 34 of the 1989 Act, and an application by the local authority to refuse contact made on 9 August 2005.  The final hearing of the applications took place over a space of 5 days in June 2006, and, as we have seen, the judge’s reserved judgment was given on 9 August 2006.  The mother’s appellant’s notice was filed on 6 November, and that of the father a week later on 13 November 2006. Although both notices are very substantially out of time, we decided to extend the time in each case, because of the novel nature of the issues involved. 
The structure of the judge’s judgment
16.	After summarising the essential issues in six introductory paragraphs, the judge then spends from paragraphs 7 to 18 in an exemplary exegesis of the law relating to adoption under the 1976 Act and the case law relating to dispensation with agreement, followed by a recital of the statutory provisions relating to special guardianship.  At paragraph 19 he begins his analysis of the background,  and between paragraphs 27 and 31 discusses the evidence of  Dr Nicholas Banks, a consultant clinical psychologist  instructed on the mother’s behalf on the likely effect of an adoption order in the context of the existing and future family dynamics. We shall return to the judge’s approach to Dr. Banks’ evidence, which was both hostile to the parents’ case and powerfully influential on the judge’s decision.
17.	In paragraphs 33 to 37 the judge records the evidence he heard during the five days the case lasted, and lists an impressive amount of background material which he had read, including case law and academic commentary.  He then carefully records the submissions made on both sides. Having done so, he gives his assessment of the principal protagonists, and records in some detail the impression he formed of the various witnesses, including Dr. Banks and AJ’s guardian. He then divides his assessment into three parts. Firstly, he rejects the continuation of the status quo under the existing care order.  Secondly, he considers and rejects a special guardianship order as a viable alternative to adoption. He finds the test in section 6 of the 1976 Act satisfied, and goes on to find, applying the relevant case law, that both parents were unreasonably withholding their agreement to AJ’s adoption by his paternal aunt and her husband.  He concludes, accordingly, that AJ should be made the subject of an adoption order. 
The judge’s approach
18.	What are the factors which led the judge to this conclusion?  There are, of course, several and to a substantial extent they are, inevitably, inter-related.  AJ had been with his paternal aunt and uncle since he was six months old. He was the subject of a care order with a care plan initially for permanent placement with his aunt and uncle as a foster child, and latterly for adoption.  They were not, however, asking for a special guardianship order, even if their application to adopt AJ was refused.  Mrs. T explained that she and her husband had applied for an adoption order as they wished to secure permanence and stability for AJ. In the event that such an order was refused, they wanted the care order to remain in place, even though it did not give them  parental responsibility for AJ, and despite the many areas of inconvenience and interference with their normal family life which  the retention of the care order brought with it. Their reason for this stance, were stated in Mrs. T’s evidence and  recorded  by the judge in paragraph 43 of his judgment: -
Under careful cross-examination on behalf of the parents, Mrs. T showed a good understanding of the effect of a special guardianship order. She accepted that such an order would enable them to share parental responsibility and to exercise more control in AJ’s case. However, on occasions when the parents’ consent would be necessary, she feared there would be further difficulties. Above all, she feared that they would make applications, even to the extent of seeking a discharge of the order so as to enable AJ to return to their care. She firmly disagreed with the suggestion put to her in cross-examination that the prospects of the parents making applications to have AJ returned to their care were negligible. The parents, she said, are unpredictable and she feared that they would come back and fore (sic) to the court to have any order revoked. It was for this reason that she and her husband would prefer to continue to look after AJ under the existing care order as this would enable the local authority to continue to consult the parents about any decision in AJ’s case. This would not be the case if she and her husband were special guardians. Any application for leave would be unsettling, particularly when AJ is old enough to be asked to express his own wishes. In the circumstances, Mrs. T strongly believed it would be better to maintain the present arrangements under the care order than to make a special guardianship order.
19.	The judge was very impressed with both Mr and Mrs T as witnesses.  He described Mrs. T as “a most impressive witness”, who gave her evidence calmly and clearly. Her devotion to AJ was well demonstrated, and the judge accepted her evidence that “she wished no more than to be allowed the opportunity to bring him up to the best of her ability and to provide him with the same sense of belonging as her son W. The judge was equally impressed with Mr. T.  The judge described him as “a calm, mature and well balanced man with a genuine interest in achieving what he believed to be in AJ’s welfare interests.
20.	By contrast, the judge was unimpressed with AJ’s parents.  The judge, of course, had the unique opportunity, not open to this court, to make both assessments of credibility and findings of fact. His assessments of the parties cannot be – and are not - challenged. They are of particular relevance in this case because they go to three of the critical issues in the case, namely; (1) which order would be more likely to be in AJ’s welfare interests; (2) which order would better secure AJ’s placement in the household of his aunt and uncle; and (3) whether or not, if the hurdle imposed by section 6 of the 1976 Act was overcome, the parents could be said to be withholding their consent to AJ’s adoption unreasonably.
21.	As to AJ’s mother, the judge’s careful assessment appears in paragraphs  45 and 46 of the judgment. The citation is a lengthy one, but important, we think, to the judge’s overall analysis of the case. 
45.	 AJ’s mother said that between August and December 2005, she had stayed in a hostel to be away from everybody and have time to think. She has now returned to live with her husband.  She admitted that she was not in as position to care for AJ at present and her demeanour indicated that she would not be well or string enough to do so for some time to come.  (She) accepted that AJ was well looked after by (Mr and Mrs T) and that this was the only life he knows. She denied that she had any intention to taking him away from them and agreed that he should stay there. She opposed the making of an adoption order by would (as she had stated in her statement dated 19 May 2006) consent to the making of a special guardianship order coupled with an order under section 91(14) of the Act. 
46.	However, she did not appear to have given up on her desire to have AJ back. In her statement, she had said: “I do not wish to lose my parental rights nor do I wish to see social services make a complete withdrawal in AJ’s life but also, in years to come, I would like to be given the opportunity of having AJ back with me”. Asked about this in cross-examination, she said: “Everyday I say to myself, one day he will come back, but it’s just a dream and is not going to happen.” She had expressed the same desire even before she made her statement. Dr. Banks had previously asked her what her view would be if an adoption order was made. Dr. Banks’ evidence (which is unchallenged) is that “she replied with increased emotion, ‘I’d fight it in every court in the land. At some stage, I am having him back. I don’t care if it’s 10 or 15 years. I am having him back’.  Again (she) made light of this in her evidence, insisting that it was simply a dream that would never come true.  Dr. Banks also reported that the mother had disclosed that she had more contact with AJ than was known to the prospective adopters as she had observed him going to school and from school to MacDonald’s. Save that the mother admitted that she had seen him on one occasion outside the school, she disagreed with that Dr. Banks had stated and that it was wrong. I regret to say that I found her an unimpressive witness and her evidence unsatisfactory. I do not accept her evidence that the return of AJ is merely a dream. Even if it is, I find that there is a substantial possibility that she will at sometime seek its fulfilment.
22.	Whilst the judge found that the mother demonstrated some insight into why AJ’s aunt and uncle were seeking to adopt him, he found that the father did not. The judge records an angry outburst from the father whilst Mrs. T was giving her evidence, during which he called her a liar and stormed out of the court room. After summarising his evidence, the judge’s assessment of the father appears at paragraph 53 of his judgment, and is in the following terms: -
Throughout the whole of his evidence, the father sat at the witness table with his arms folded, leaning back in his chair, sideways on to the court. His mood was defiant and hostile and he showed little, if any, regard for the impression he was creating. By his own admission, he has never co-operated with social services, and is unlikely to do so. His is not the sort of person who may be relied upon to act reasonably in any circumstances which is an obvious concern in matters concerning his son.  Wherever there is a conflict between his evidence and that of any other witness, for instance as there is in relation to the father’s intention at the time Mr. DP was acting as his solicitor, I prefer the evidence of the other witness.
23.	The importance of the judge’s assessment of the parents lies, of course, in its relevance to the question of AJ’s security within his placement with his aunt and uncle, and their perception of it. In this context, the evidence of Dr. Banks, which the judge accepted, is equally important.  The judge summarises Dr Banks’ report and a subsequent telephone conference in the following terms: -
30.	Dr Banks concluded that the potential for conflict between the parents and Mr and Mrs T was considerable and a matter of concern. There were benefits for AJ in being adopted as it would signal to him that he was wanted in the T household. It would also reduce the potential for extended family conflict. Adoption would allow normal spontaneity of family life and decision making. All of this could be of great psychological and practical benefit for AJ. A special guardianship order would be likely to undermine the current carer’s sense of permanence and decision making in AJ’s best interests.  Further, he believed that the parents were likely to seek to contest a special guardianship order in the future creating insecurity in the carers and, in consequence, in the placement.
31.	This was followed by a telephone conference on 27 April 2006, a transcript of which is contained in the trial bundle. Dr Banks was asked his opinion as to the appropriate order, he said his aim was “to achieve permanency and stability and part of the stability criteria will be to reduce any external attempts to upset or re-determine where his placement should be (and that his) preferred option was adoption with continued direct contact.  
24.	The judge also recorded and relied upon what he regarded as an important part of Dr Bank’s evidence in so far as it related to AJ’s knowledge and understanding of his place within the family, and which went to the issue of adoption distorting family relationships. In paragraph 29 of the judgment, he records Dr. Banks’ description of visiting AJ in the household of Mr and Mrs. T. J had showed no behavioural or emotional problems. The judgment then records: -
Asked whether he could tell his “Mom and Dad’s” name he replied (with) Mr. T’s longstanding nickname and (Mrs T’s first name). Asked whether he had another mother and father he replied without hesitation “Yes, V and J (Mr. and Mrs J’s first names). He said he was living with Mr and Mrs T as his parents could not look after him.  They had been arrested, were naughty and shouted. He said he had not seen his parents do these things, but spontaneously added: “But I’ll go and get my red book (life story book) It’s got the things they’ve done.  I keep it under the stairs.  He then got the book, which contained various photographs and letters. Dr. Banks said it was clear that he knew where this was placed and appeared to have regular spontaneous access on demand.
25.	When he came to give his oral evidence, Dr. Banks remained of the view that adoption with direct contact between AJ and his parents was the preferred option The judge describes him as “well qualified to assist the court” and as “an impressive witness. The judge added a further point when relating what Dr. Banks said in oral evidence : -
…… It would be different if the prospective adopters were attempting to sever direct contact and completely remake AJ’s identity, which would not be in AJ’s best interests, but that was not the case. Mr and Mrs T acknowledged his identity and showed continuing willingness to promote contact. An adoption order would not create distortion as AJ had always been clear about the identity of his birth parents. It would be worthwhile to consider a special guardianship order  only if a guarantee could be given to reduce the anxieties of the prospective adopters. This, he believed, was especially important to the father who (as well as the mother) has said he wants him back which is likely to be very disruptive to his future development. He remained firmly of the opinion that legal means had to be taken to preserve AJ in the prospective adopters’ family.
26.	 Both the local authority social worker and the guardian favoured adoption.  The former likewise stressed the need for permanence and stability which, she thought, were not to be found in a special guardianship order. She also pointed out that AJ had developed a very strong attachment to his aunt and uncle (and their son W) and that he responded to them as his mother and father. He needed the security of an adoption order so that he knew where he belonged. 
27.	The social worker also agreed with Dr. Banks that an adoption order would not result in a distortion of family relationships. AJ had a clear understanding of who his birth parents were and why he was placed with his aunt and uncle.
28.	AJ’s guardian was also of the same opinion. She took the view that there was no longer any reason for the local authority to remain involved. A continuing care order was only necessary if Mr and Mrs T were not granted the legal status which adoption would give them. She was concerned that a special guardianship order would give rise to further applications about school, health and AJ’s return to his parents, all of which would upset the stability of the placement. She also agreed that an adoption order would not distort or skew family relationships. Although the case was finely balanced, her view was that adoption was the right course, and that reasonable parents would recognise that they could not care for AJ now or in the future and would want stability and permanence for their child. 

The judge’s analysis
29.	The judge rejected the status quo.  There were many disadvantages in Mr and Mrs T being without parental responsibility for AJ. Mr and Mrs T’s care for AJ over the years demonstrated that the care order was “an unnecessary interference with the spontaneity of their family life and was not the right solution for AJ”. There is no challenge to this finding.
30.	The judge next examined the arguments for and against a special guardianship order.  He repeated Dr. Banks’ view that a special guardianship order was a viable alternative to adoption if – but only if – the court could guarantee that it would not be contested in the future. That, however, as had been conceded by the mother’s solicitor, was not possible.  Although leave would be required to challenge the special guardianship order or to apply for a residence order, an application for any other order under section 8 of the 1989 Act could be made without leave, absent a restriction imposed under section 91(14). The judge therefore concluded: -
In my judgment, a special guardianship order is not a viable alternative to adoption in this case. In any event, Mr and Mrs. T are unwilling to be made special guardians. (Counsel for the father) submitted that this should not be an impediment to making a special guardianship order. He relied on the decision of the Court of Appeal in Re M (Adoption: Residence Order) [1998] 1 FLR 570 where a residence order was imposed on foster carers despite their objection. However, different considerations may apply in the case of special guardianship orders.  Carers may welcome the added right a special guardianship order would confer upon them but, at the same time, may be unwilling to entertain the corresponding responsibilities involved or, as here, the perceived risk of further applications by the parents.  For this reason, it seems to me, that the status of a special guardian should not be imposed upon a party without his consent. If it is ever permissible to do so, it is likely to be in very exceptional circumstances. In any event, it is unnecessary to determine this issue (or the separate issue as to whether under section 14A(11) ACA 2002 (sic) the court must, first, obtain a (suitability) report dealing with the matters referred to in sub-section (8) for the purposes of my decision in this case. In my judgment, something more than a special guardianship order is needed in AJ’s case.
31.	The judge then went on to consider adoption. He found the test in section 6 of the 1976 Act satisfied.  This finding is formally challenged in the appellants’ notices, but is not their foremost point of attack. In our judgment, the judge’s finding that adoption would safeguard and promote AJ’s welfare throughout his childhood is, on the facts of this case, unassailable. We will, however, return to the point later.
32.	The judge begins the section of his judgment dealing with parental consent to adoption by making a reference to the parents having “every right in law not to consent to a freeing order”. We find this a puzzling reference, as an application to free AJ for adoption was not before him. In the event, however, nothing turns on the point, since the criteria for dispensation were the same for both freeing a child under section 18 of the 1976 Act and for making an adoption order under section 16.
33.	The judge’s reasoning on the dispensation question seems to us to involve the following considerations: -
(1)	in refusing to give their consent to his adoption, AJ’s parents were entitled to pray in aid their ties of blood and the fact that they would no longer have parental responsibility.
(2)	AJ’s parents were unable to care for him as a baby and are unable to do so now.
(3)	The prospects of them ever being able to care for him were remote;
(4)	AJ had lived with Mr and Mrs T since he was six months old. It was the only home he knew, and one which he shared with his cousin W,  with  whom he got on well. Mr. and Mrs T were equally devoted to both children. 
(5)	Mr and Mrs T had parental responsibility for W and were able to make all the important decisions for him. They did not have parental responsibility for AJ, who was the subject of a care order.  AJ did not share Mr and Mrs T’s surname.
(6) 	A special guardianship order would allow Mr and Mrs T “to make almost all of these decisions” and they could be permitted to change AJ’s surname to theirs. However, AJ would still be at a disadvantage. He would enjoy “a more limited legal relationship and there would be less protection against further court proceedings by AJ’s parents. Although they would require leave to apply to discharge the special guardianship order or to apply for residence, they could apply for any other section 8 order without leave unless the court makes an order under section 91(14). Even then, the parents could apply for leave to make an application. Mr and Mrs T feared this is what they would do. They would rather continue with the care order than be exposed to the anxieties of further court proceedings by AJ’s parents.
(7)	Mr. and Mrs T were as capable of meeting AJ’s needs as they were capable of meeting those of W. The care order was unnecessary and disrupted the spontaneity of their family life. AJ was just over 5. There was no prospect of returning to live with his parents and his contact with them was limited. Mr and Mrs T were his only effective parents and were likely to continue to be so throughout his minority.
(8)	Absent an adoption order, AJ was likely to have to live with the disadvantages of a care order throughout his childhood, and would be deprived of the sense of belonging he needs and which is enjoyed by W. An adoption order would enable him to remain with Mr and Mrs T and W and be loved and cared by them. This would enable him to “to grow up and to achieve his full potential”. 
(9)	The name issue could be addressed by adding T to AJ.
34.	Bearing these factors in mind, the judge concluded as follows: -
77.	After careful and anxious consideration of the whole of the evidence and the detailed written submissions of the advocates, and weighing all the relevant factors, I am firmly of the opinion  that a reasonable parent in the position of the mother and father would not fail to ignore the advantages of adoption in AJ’s case. Adopting the approach in Re F, I have come firmly to the conclusion that the advantages of adoption for AJ’s welfare are sufficiently strong to justify the making of an order overriding the views and interests of his parents and their (sic) right to be brought up by them. In all the circumstances, I find that they are unreasonable in withholding their consent to his adoption. 
78.	I accept that the order I am making represents an interference by the court in the right to respect for family life contained in Article 8 of (ECHR) and the interference must, of course, be in accordance with the powers given to the court under the 1989 Act and must meet a pressing social need and be a proportionate response to that need. 
79.	However, as Lord Nicholls of Birkenhead said (at paragraph 31) in Re E (Adoption: Natural Parent) UKHL 70, [2002] 1 RLR 196, the balancing exercise required by Article 8 does not differ in substance from the like balancing exercise undertaken by a court when deciding whether, in the conventional phraseology of English law, adoption would be in the best interests of the child. The like considerations fall to be taken into account. Accordingly, in my judgment my findings that AJ should remain in his placement outside his birth family under an adoption order, enjoying direct contact with his parents 6 times a year, identifies the pressing social need for adoption (the need to safeguard and promote AJ’s welfare and represents the court’s considered view on proportionality and as such does not constitute a violation of the parents or AJ’ convention rights (sic). 

The grounds of appeal
35.	The six substantive grounds of appeal are all premised on the proposition that the judge was wrong in law to have held that the parents’ consent to AJ’s adoption was being unreasonably withheld within section 16(2)(b) of the 1976 Act.  In essence, they can be summarised as follows: 
(1)	the judge failed properly to consider the availability of a special guardianship order to provide for AJ’s needs for security and stability within his new family;
(2)	the judge had acted disproportionately and in breach of the parents’ rights under ECHR Art 8;
(3)	the judge had failed adequately to consider the mechanism of an order under section 91(14) of the 1989 Act as a means of restricting future hopeless applications;
(4)	having taken the view that adoption was in AJ’s best interests the judge had gone on to substitute his own views for those of AJ’s parents, and had thus failed sufficiently to consider their thought process when concluding that they were withholding their consent unreasonably;
(5)	the judge had been wrong to conclude that adoption was in interests because he had failed sufficiently to consider the impact on AJ of his parents’ inability psychologically to accept the adoptive placement and consequent disruption;
(6)	the judge had failed adequately to consider the intention of Parliament when legislating for special guardianship orders. This intention was to provide an alternative mechanism for security and permanence especially in intra familial placements in order to avoid the skewing of family relationships. Reliance was placed on the decision in A local authority v X, Y and Z and others [2006] 2 FLR 41 at paragraphs 22 to 24.
The arguments  deployed in this court    
36.	Although, as we have already stated, the case was extremely well argued on both sides, we have come to the conclusion that it would unduly lengthen this judgment to set out all the arguments advanced to us in detail, not least because,  in the event,  we agree with Miss Lorna Meyer, QC,  for the prospective adopters and for AJ (who sensibly combined forces in this court) that the case depends essentially upon  the careful exercise of a judicial discretion to particular facts.  We will, however, set out Miss Ruth Henke QC’s first and fundamental submission in the body of this judgment. 
37.	Miss Henke launched and developed a root and branch attack on the judge’s reasoning.  Her first submission was that that since the implementation of section 115 of the 2002 Act, there existed in this case an order more appropriate than an adoption order under the  1976 Act  to secure AJ’s placement with Mr and Mrs T, namely a special guardianship order  under S14A of the 1989 Act. There was therefore no need for the judge to make an adoption order. Furthermore,  the parents could not be said to be withholding their consent to that adoption unreasonably when they were prepared to agree to AJ continuing to live with Mr and Mrs T under the security of a special guardianship order with a restriction order under S91(14) of the 1989 Act.
38.	Miss Henke did not dispute that the judge had been correct to hold that under the 1976 Act the court had to go through a two stage process if it was to make an adoption order. However, the first stage – the consideration as to whether adoption would safeguard and promote the child’s welfare throughout his childhood - had now to be read in the light of the implementation of section 115 of the 2002 Act.
39.	When considering whether to make an adoption order or a special guardianship order in a familial placement case such as AJ’s, Miss Henke submitted that the correct approach of the court should be to prefer the making of an special guardianship order unless a special guardianship order, in the words of Hedley J in S and B v Newport City Council (as yet unreported) at para 21 in particular,   “really cannot meet the needs of the child concerned” .
40.	In the instant case, Miss Henke submitted that the judge had been simply wrong to conclude that a special guardianship order was not a “viable alternative” and that something more than a special guardianship order was necessary. This was because the effect of an adoption order was to give lifelong status to Mr and Mrs T as AJ’s parents and to extinguish the parental responsibility which AJ’s parents had for him.  Mr and Mrs T, his paternal aunt and her husband would become his mother and father. The parents would become his maternal uncle and his wife. W, Mr and Mrs T’ natural child would be his brother rather than his cousin. The skewed family dynamics would endure throughout his life. Whilst Dr Banks had been of the opinion that an adoption order would not create distortion for AJ his view was limited to a consideration of psychological perceptions. The reality is the making of an adoption order would, as a matter of law, distort the legal status of the parties and their relationship to each other. Given the effects of a special guardianship order, Miss Henke submitted that in this case there was no need to change the parties’ legal status and their relationship to each other. 
41.	For the prospective adopters and for AJ,  Miss Lorna Meyer, QC’s primary  submission was that, stripped to its essentials, this appeal was no different  from any other case involving the exercise of a judicial discretion in relation to the welfare of children. She argued that the judge had directed himself carefully as to the law, made clear and unassailable findings of fact, and had exercised his discretion appropriately on the basis of the facts as found. In these circumstances, she argued, the well known principles set out by the House of Lords in G v G (Minors Custody Appeal) [1985] FLR 894 applied.  The passage from the speech of Lord Fraser of Tullybelton is well known, but always bears repetition: -
Appeals in custody cases, or in other cases concerning the welfare of the children were not subject to special rules.  Even if the appellate court would itself have preferred a different conclusion it must leave the decision of first instance undisturbed unless it could say that decision was wrong.  The limited role of the appellate court in custody cases was not that such appeals were subject to any special rules but that there were often two or more possible decisions any one of which the court of first instance might reach without being held to be wrong.  The appellate court should only interfere when it was satisfied that the court of first instance had not merely reached a decision with which the appellate court might disagree but had exceeded the generous ambit within which a reasonable disagreement was possible and had reached a decision which was so plainly wrong that it must have erred in the exercise of its discretion.
42.	Miss Meyer also relied on the well known decision of this court in Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230 to the effect that the more difficult the decision and finely balanced the conclusion the less prospect there is of that conclusion being successfully appealed.
Discussion 
43.	Although the detailed arguments deployed on each side identified the points which can properly be made in a case in which the choice for the judge is between special guardianship and adoption, we are of the view that Miss Meyer’s primary submission is correct, and that this appeal must be dismissed. 
44.	We respectfully disagree with Miss Henke that special guardianship orders have effectively replaced adoption orders in cases where  children are to be placed permanently within their wider families. No doubt there are many such cases in which a special guardianship order will be the appropriate order, but as this court points out in paragraph 61 and elsewhere in its judgment Re S, each case will fall to be decided on what is in the best interests of the particular child on the particular facts of the case. Moreover, each such decision will involve the careful exercise of a judicial discretion applied to the facts as found. 
45.	In the instant case, the judge’s findings of fact and his assessments of the parties are, in our judgment, not only of critical importance, but determinative of outcome.  AJ had been with his paternal aunt and uncle since the age of 6 months. He and his carers both plainly need the assurance that the security of that placement could not be disturbed.  That assurance could not be provided by a special guardianship order: it could only be provided by adoption.
46.	The judge was, in our judgment, plainly entitled to find as a fact that the mother in particular had never given up on regaining AJ’s care. His two findings that there was a real possibility of future applications to the court, and that those applications would be disruptive of the placement were manifestly open to him on the evidence. All the expert evidence in the case, including, of course, that of Dr. Banks, was to like effect. These factors are all clear pointers towards adoption.
47.	In our judgment it is no answer to assert that any application to revoke a special guardianship order and / or to seek a residence order requires the court’s permission, or that any application for permission to apply for  contact and other section 8 orders can be regulated so as not to disturb the child or his carers by filtering them  through section 91(14) of the 1989 Act.  In situations where the parties are not in contact – where, for example, parties do not know where their former partners and their children are living – it may well be possible to direct that any application under section 91(14) shall not, in the first instance, be served on the resident parent, and that the application can thus be resolved by the court without the resident parent and the children concerned even being aware that it has been made.  Such considerations do not, however, in our judgment, apply in cases such as the present where the parents of the child are having regular contact. In such cases it is unreal to suppose that Mr and Mrs T will be unaware that AJ’s parents had made an application to the court. Even if that application stood no prospect of success and was, in the event, dismissed, the threat of disruption and disturbance would remain.
48.	On the question of adoption, it is plain to us that on the facts of the case it was open to the judge properly to find that the test contained in section 6 of the 1976 Act was satisfied. Once a special guardianship order is seen in its factual context, any argument to the contrary in this case simply evaporates.
49.	On the question of dispensation with parental agreement to adoption, we agree with Miss Meyer that the judge cannot be faulted either on his analysis of the correct, albeit now repealed, law or on his application of that law to the facts of the instant case. This, in our judgment, is a case within the well known statement in the speech of Lord Hailsham of Marylebone LC in Re W (an infant) [1972] AC 682 at 699, in which the hypothetical reasonable parent would see that AJ’s welfare was the decisive issue; that it required his permanent and secure placement with Mr and Mrs T; and that accordingly adoption was the right course for him. Such parents, as the judge found, would have given their agreement to his adoption and can legitimately be described as “unreasonably” withholding their agreement within section 16(2)(b) of the 1976 Act, particularly as interpreted in  both  Re W and in the judgment of  Steyn and Hoffman LJJ in Re C (A Minor) (Adoption: Parental Agreement: Contact)[1993] 2 FLR 260 at 272G-H.
50.	It is, we think, unfortunate that this case falls to be decided under the 1976 Act, but we are entirely satisfied that  had it been heard under the 2002 Act, the result would have been the same. 
51.	We also respectfully agree with the judge that an adoption order in the instant case does not unduly distort the family dynamics. For the reasons which this court gives in paragraphs 51 and 52 of its judgment in Re S,  the question of the likely distortion of family relationships by an adoption order is very fact specific, and should not be overplayed. In the instant case, AJ knows precisely who he is. He knows that his birth parents are Mr and Mrs J and that they are unable to look after him.  He knows he is living with his aunt and uncle. He is not confused, nor is he likely to be in the future. What matters for him is that he should be fully accepted and cared for by his aunt and uncles as a member of  their household,  and as a brother to W. The difference between brother and cousin on the facts of this case is readily understandable: what matters is the relationship between the two children. In our view it is not a major or negative distortion of family relationships in this case for cousins to grow up together as brothers.
52.	It is, of course, trite law that in the twenty-first century, an adoption order is not inconsistent with ongoing contact between the children concerned and their birth parents. In the instant case, it is important for AJ to retain a knowledge of, and, we hope, an affection for, his parents. As we have already stated, he knows who they are, and why they cannot care for him. On the evidence available to the judge, AJ is not remotely confused by the position in which he finds himself.
53.	In the event, the question of the judge making a special guardianship order against the wishes of Mr and Mrs T did not arise, and what the judge said about it was plainly obiter. This court has discussed the question in paragraphs 73 to 77 of Re S and we do not proposed to repeat what was said in that case. Equally, the relevance of the two cases decided at first instance is discussed in paragraphs 53 to 61 of Re S, and, once again, we adopt what is there set out. 
54.	For all these reasons, and despite the full, careful and helpful arguments advanced on the parents’ behalf, we are of the opinion that this appeal fails and must be dismissed.

SCHEDULE OF MAIN DIFFERENCES BETWEEN
SPECIAL GUARDIANSHIP ORDERS & ADOPTION
	
	SPECIAL GUARDIANSHIP
	ADOPTION	
1. STATUS OF CARER

	Special Guardian:
If related to child retains existing relative status	Parent for all purposes:
If related to child existing relative status changes	
2. STATUS OF CHILD

	A child living with relatives/carers who remains the child of birth parent	The child of the adoptive parent as if born as a child of the marriage and not the child
of any other person
therefore adoption includes a vesting of ‘parenthood’
Sec 39(1)&(2)AA 1976/Sec 67 ACA 2002	
3. DURATION OF ORDER
	Ceases automatically on reaching 18 if not revoked by court earlier
?whether also ceases on death

The legal relationship created is therefore time limited and not lifelong
Sec 91(13)CA 1989	Permanent

The legal relationship is lifelong
Sec 39(1) AA 1976/Sec 67 ACA 2002	
4. EFFECT ON BIRTH PARENT PR

	PR retained by birth parent
SG can impose limitations in use (see 6 below)
Sec 14C(1)&(2) CA 1989	Birth Parent PR extinguished

Sec 39(2) AA 1976/Sec 46 ACA 2002	
5. CARER’S PR

	PR vests in special guardian/s
Sec 14C(1)&(2) CA 1989
Subject to limitations (see 6 below)	PR vested in adopter/s
S 39(1) AA 1976/49 ACA 2002/S 2 CA 1989
No limitations (but see joint operation* below)	
	SPECIAL GUARDIANSHIP	ADOPTION	
6. LIMITATION/RESTRICTION OF PR     
    (a) removal from jurisdiction
	
(a) up to three months without leave, thereafter only with written consent of all PR holders or leave of court unless court gave general leave on making SG order
Sec 14C(3)(b)&14C(4)/14B(2)(b) CA 1989	
(a) No restriction	
    (b) change of name

	(b) can not change surname without written consent of all PR holders or order of the court 
Sec 14C(3)(a)/14B(2)(a)	(b) No restriction

name change may take place at time of making adoption order or thereafter	
    (c) consent to adoption 
	(c) consent required from birth parents and special guardians or court must dispense with consent of birth parents and special guardians
Sec 19,20,52 & 144 ACA 2002/14C(2)(b)CA 1989	(c) consent required from adopters only or court must dispense with consent of adopters only 
	
    (d) medical treatment    
	(d) may be difficulties where each special guardian agrees but birth parents do not in the following circumstances:

Sterilisation of a child
This is the example given in the government guidance to SGO in “Every Child Matters” in
Relation to effect of section 14C(2)(a) – no authority is cited
Ritual Circumcision
See Re J [2000] 1 FLR 571
Suggests that like sterilisation the consent of all PR holders would be required for this procedure
	(d) no restrictions where each adoptive parent agrees (subject to age/Gillick competence of child) on giving consent for medical treatment

*However where adoptive parents themselves disagree in these scenarios a court order may be required (see below)

	
	SPECIAL GUARDIANSHIP	ADOPTION	
    (d) medical treatment contd

	Immunisation
See Re C [2003] 2FLR 1095
This added contested immunisations to the small group of important decisions where the consent of both parents was required

Life prolonging/Life shortening
If the above scenarios require consent of all with PR surely it must then extend to issues of whether treatment should be given or withheld in terminal cases

Sec 14C(1)(b) with (2)(a)
Ss1 does not effect the operation of any enactment or rule of law which requires the consent of more than one person with PR in a matter effecting the child

If consent of all PR holders is required for these type of decisions does this then impose a duty upon SG to consult with birth parents in advance and to bring the matter back to court for determination if birth parents indicate an objection?	

*Sec 2(7) CA 1989
Where more than one person has PR for a child each may act alone and without the other but nothing in this part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child
	
    (e) voluntary accommodation 

	(e) If SG objects LA cannot accommodate child unless court order
     If all SGs consent but birth parents object would appear that LA cannot accommodate child unless court order if birth parent willing and able to provide accommodation or arrange for accommodation to be provided	(e) where adoptive parents agree they can accommodate voluntarily

	
	SPECIAL GUARDIANSHIP	ADOPTION	
    (e) voluntary accommodation contd

    (f) removal from voluntary 
        accommodation

    (g) consent to marriage under 18	This is not the case if there is in force a residence order and the residence order holder consents nor if there is a care and control order pursuant to wardship or inherent jurisdiction and the person in whose favour the order is made consents.

(f) Any person may remove from voluntary accommodation at any time

This is not the case if residence order holder of carer under wardship/inherent jurisdiction agrees to the voluntary accommodation

How is the ‘exclusive’ nature of the SG’s PR intended to operate in these circumstances ?
It appears that the statute requires the consent of all PR holders therefore if SGs consent to accommodation but parents do not the parents can simply remove the child.

Sec 20 (7)(8) &(9) CA 1989

(g) if all SG agree no restriction
the Marriage Act 1949 has been amended to enable SGs to give valid consent where SGO in force (unless also care order in force)
sec 3(1), (1A)(a)&(b)

	

(f) adoptive parents can remove from voluntary accommodation

(g) if all agree no restriction	
	SPECIAL GUARDIANSHIP	ADOPTION	
7. DEATH OF CHILD

	Special guardian must notify parents with PR
Sec 14C(5) CA 1989

Special guardians may not be able to arrange for burial/cremation in circumstances where parents wish to undertake such a task if the SGO ends on death
See by way of analogy
R-v-Gwynedd CC ex p B [1991] 2FLR
	No requirements for notification

The rights and duties of legal parents do not end on death therefore would be no such conflict	
8. REVOCATION OF ORDER
	Specific statutory provision for birth parents to apply for discharge of SGO with leave of the court, leave not to be granted unless there has been a significant change of circumstances

Specific statutory provision for court to discharge of its own motion even where no application in any ‘family proceedings’
Sec 14D CA 1989	No statutory provision for revocation

in wholly exceptional circumstances court may set aside adoption order, normally limited to where has been a fundamental breach of natural justice.  See for example Re K Adoption & Wardship [1997] 2FLR 221	
9. FUTURE APPLICATIONS BY 
    PARENTS
    (a) Residence

    (b) Contact

    (c) Prohibited Steps

    (d) Specific Issue	

(a) Leave required

(b) no automatic restriction 

(c) no automatic restriction

(d) no automatic restriction 
Sec 10(4, (7A)&(9) CA 1989
A parent is entitled to apply for any section 8 order except residence where is SGO	

(a)	leave required 

(b)	leave required

(c)	leave required

(d)	leave required
Sec 10(2)(b), (4), (9)
	
	SPECIAL GUARDIANSHIP	ADOPTION	
10. RESPONDENTS TO FUTURE LEGAL
      PROCEEDINGS RE CHILD
	Birth parents would be respondents in addition to the SGs to any applications in relation to the child for Section 8 orders, EPOs, Care /Supervision Orders, Secure accommodation etc 	Only Adopters would be automatic respondents	
11. MAINTENANCE

	Does not operate to extinguish any duty on birth parents to maintain the child	Operates to extinguish any duty on birth parents to maintain the child
Sec 12(3)(b) AA1976/Sec 46(2)(d)ACA 2002	
12. INTESTACY

	Child placed under SGO will not benefit from the rules relating to intestacy if the SGs die intestate 	Adopted Child will have rights of intestate succession