X & Anor v A & Ors, Court of Appeal - Family Division, July 27, 2018, [2018] EWHC 3223 (Fam)

Resolution Date:July 27, 2018
Issuing Organization:Family Division
Actores:X & Anor v A & Ors

Case No: LE86/17 & LE87/17

Neutral Citation Number: [2018] EWHC 3223 (Fam)



Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 27th July 2018



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MR. LAWRENCE MESSLING for the Applicants

1st and 2nd Respondent appeared in person

MISS. EMMA BURDEN for the Children through their Children's Guardian

MR. ALAN INGLIS for the 5th Respondent Local Authority

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JudgmentIf this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.



1. In this matter I am concerned with an application to adopt by two people who have been referred to throughout this hearing as Mr. and Mrs. X. The application is in respect of two children, C who was born on 4th March 2010 and is eight years of age and D who was born on 9th November 2012 and so is five years of age. The mother of both children is Ms A and the father is Mr B. They have a third child, E, who was born on 19th May 2014 and so is four years of age, she currently lives in the care of the parents.

2. The father has two other children H, who is 17 from an earlier relationship, and G, who was born on 19th June 2016 who is the child of the father and his wife Ms. F. The adoption agency in this matter is Edinburgh City Council who support the making of an adoption order in favour of Mr. and Mrs. X, as does the children's guardian. The mother and the father both oppose the application and seek the return of children to their care or, as the father submitted at a late stage in this hearing, there be some form of shared parenting arrangement between the mother, the father and Mr. and Mrs. X.


3. The early background in this matter as set out in the judgment of Sheriff Corke on 26th January 2016. In brief the parents are both Nigerian nationals. The father arrived in this country in 1996 and was granted indefinite leave to remain in 2013. The mother arrived in 2006 and was granted indefinite leave to remain in 2016. They commenced a relationship at some time in 2008 or 2009. This relationship has been punctuated by lengthy separations. In about 2010 the mother was diagnosed as being HIV positive. On 18th September 2012 there was a domestic incident between the parents which led to the police being called. Subsequently the parents separated and on 24th October 2012 the mother moved to Edinburgh with C when she was heavily pregnant with D. D, as I have said, was born in November 2012. Edinburgh City Council asserted that it had provided support for the mother over a lengthy period of time but, unfortunately, the mother's mental health deteriorated seriously, as did her ability to provide adequate care to the children. Accordingly, on 23rd May 2013 both C and D were accommodated by the local authority and have not since lived with either parent.

In his judgment of January 2016 Sheriff Corke described the circumstances which led the children's reception into care as follows:

"On 23rd May 2013 the mother, C and D were found living on the internal stairwell leading up to their flat surviving on crisps and biscuits. The stairwell was littered with dirty nappies. The mother was praying constantly and repetitively in an agitated state and felt she was being terrorised by spirits. On 23rd May 2013 C and D were voluntarily accommodated due to the mother's decline in mental health and ability to look after the children. She was admitted to the Royal Edinburgh Hospital as an in patient on a voluntary basis suffering from acute intransigent psychotic disorder rather than schizophrenia. This was consistent with a brief psychosis of schizophreniform-type such being very common in the postnatal period. Low mood and a perception that she was being terrorised by spirits was consistent with depression with an anxiety order as well. The mother responded well to anti psychotic medication.

The father did not come to Edinburgh to assist with the children, even though he knew that the mother was ill and unable to cope. He did not visit the mother whilst she was in the Royal Edinburgh Hospital."

4. Thereafter on 10th December 2013 both children were made the subject of compulsory supervision orders. On 24th August 2014 Edinburgh City Council applied for a permanence order with authority to adopt in respect of both children. On 15th February 2015 the sheriff made an interim order granting such authority. On 14th April 2015 the children were placed with Mr. and Mrs. X where they have since remained. On 26th January 2016 at the conclusion of a long judgment, the application for permanence orders was refused by Sheriff Corke who considered it reasonable for there to be an attempt of rehabilitation of the children to the mother and the father, but not to one or the other. The local authority appealed this decision to the Sheriff Appeal Court. On 27th February 2017 the appeal court dismissed the appeal.

5. Accordingly, the local authority approached the British Association of Adoption and Fostering to secure the services of a culturally appropriate independent social worker to assess the parents. Julia Hughes was instructed as the independent social worker and undertook an assessment. Her report dated 16th May 2017 did not recommend rehabilitation to the mother or to the father, whether solely or jointly.

6. The mother's last direct contact with the children took place on 18th December 2017. An order terminating the contact was made on 20th March 2018. The father has not had contact since the children were accommodated by the local authority over five years ago. After her birth E was made the subject of care proceedings brought by the Royal Borough of Kensington and Chelsea in May 2014. She was made the subject of an interim care order on 27th May 2014. There then followed a residential assessment at the Jamma Umoja Centre which ended on 5th December 2014. Because of what was considered to be the success of that assessment the local authority's plan changed from one of adoption for E, for her to remain living with her mother. On 5th January 2015 the court made a supervision order for twelve months.

7. I have the benefit of a report prepared for the purposes of these proceedings by Kim Black, a social worker with responsibility for E's case employed by the Royal Borough of Kensington and Chelsea. There were issues about the care of E relating to neglectful parenting and the unsettled life of the mother. The mother decided in late 2017 to place E with maternal family members in Nigeria and she arrived there on 2nd November 2017. In consequence the Royal Borough of Kensington and Chelsea closed E's case. E was returned to this country in May 2018, whereupon the Royal Borough of Kensington and Chelsea re-opened their case and I am told that an assessment is under way which may result in care proceedings being brought once again in respect of E by that local authority.

The Law

8. Section 47 of the Adoption and Children Act 2002 provides as follows:

(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).

(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied --

(a) that the parent or guardian consents to the making of the adoption order,

(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or

(c) that the parent's or guardian's consent should be dispensed with.

(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.

(4) The second condition is that --

(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, [which is satisfied in this case] ...

(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.

(6) The third condition is that the child is --

(a) the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or

(b) is free for adoption by virtue of an order made under Article 17 or 18 of the Adoption (Northern Ireland) Order 1987.

9. The provisions of section 52 provide as follows in subsection (1):

(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that --


(b) the welfare of the child requires the consent to be dispensed with.

10. At all times when considering these...

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