Re W is a very long judgment. Re W (A Child) [2017] EWHC 829 (Fam) (06 March 2017)

This post is but an outline of it and does not cover the details in full. It is heartbreaking to read, and will have been heartbreaking for W’s parents to hear when delivered last month, and will be a source of heartache for them in years to come. It may well too be a source of heartbreak for W when she is older and comes to read it, but long before then she will have been told why she couldn’t live with her tummy mummy and daddy and will have struggled to understand it. Because W’s biological father is caring well and safely for her siblings, who also have a relationship with her biological mother – and yet these parents cannot now care for her because too much time has passed to make it right, to justify the risk of not just upset but of long lasting emotional harm – the sort of heartbreak that can affect who you are and what you make of your life.

It is clear that Sir James Munby, the judge who decided this case found it extremely difficult to decide too – he says at the off :

This is a very complex and worrying case. It is, I think, by some margin the most difficult and concerning case of its type I have ever been involved in.

Which is saying something for a judge who has spent his career dealing with complex and concerning cases. One reason the judgment is so long is because the judge sets out at length the agonised evidence given by a raft of experts, themselves all struggling with the exceptionally difficult and unfamiliar scenario that they were asked to advise on.

So what is this case about?

W was removed from her parents’ care as a baby along with her older siblings. Those siblings were ultimately returned home under supervision orders by the District Judge who heard the case, but the same judge approved a plan of adoption for W, who was placed with the A family for adoption, where she remains today, along with another child who she will regard as her sibling. To all intents and purposes, from W’s perspective, Mr and Mrs A are her parents. She is now 4 ½ years old and has been living with the As for over 3 years.

The District Judge’s decision was successfully appealed, but by the time this happened A had already been placed with Mr and Mrs A. The case was sent back to be re-heard, this time by a High Court Judge, Ms Justice Russell. She decided W should be returned to the care of her parents. However, her judgment was also successfully appealed (and she was quite strongly criticised by the Court of Appeal).

The judgment we are looking at is the third attempt to resolve the matter, this time heard by the President of the Family Division, Sir James Munby. The As were applying for adoption orders, the parents were opposing the orders being made. By the time the matter came on for trial it was September 2016 and W had been with the As for almost 2 years. The President himself confesses he has contributed to further delay by taking almost six months to produce his judgment. That delay he says ominously at the outset of his judgment has been “determinative” – the outcome he says “might perhaps (I emphasis, might) have been different had the case been resolved sooner”.

The judgment

The President was very critical of the way the Local Authority had approached the case, in particular of their approach to the threshold document, which was not specific enough. He said, of an allegation about W rolling off the sofa when tiny that did not spell out what culpable conduct was alleged :

the applicant must set out an allegation such as this in clear language, making plain just what the allegation is. Here, the local authority was willing to wound, yet afraid to strike….Just what, if anything, was the local authority actually alleging?…The local authority’s cavalier approach to the facts and disregard for precision is worryingly evident from what happened after [the] District Judge … had given judgment.

What happened after the judgment was that the implication that the child had suffered an “unexplained” injury or possible physical abuse at the hands of the father worked its way into various documents as fact. Ultimately there was so much confusion and lack of clarity about what findings were sought and what findings had actually been made at the first trial that the President declined to rely on any of them.

After a very lengthy exposition of the facts, the evidence and the law the actual analysis by the judge himself begins at paragraph 224. The President says :

There was, correctly, agreement on a number of key matters:

i) The court is faced with a stark choice between two outcomes for W (a) adoption by Mr and Mrs A or (b) rehabilitation to her father and birth family. No-one has suggested, or in my judgment could sensibly suggest, that there is any other realistic option. No-one, for example, has suggested long-term fostering.

ii) Each of the two possible outcomes carries risks. The key issues are the identification of (i) the relevant risks or harms (and, on the other side of the balance sheet, the relevant benefits), (ii) the degree of the relevant harms and benefits, (iii) the likelihood of their occurrence and (iv) the severity of their consequences.

iii) The risks if W is rehabilitated to the father are likely to manifest themselves very soon. The risks if W is adopted are likely to manifest themselves, if at all, during or as W enters adolescence.

iv) It is difficult to predict and very difficult to quantify the relevant risks.

The essential argument on the one side is that, if W is adopted by Mr and Mrs A, there will, from her perspective, be no significant change in her life; that any difficulties which may emerge will not do so for some years (by which time W will have become even more settled and secure with Mr and Mrs A); and that even though it is likely that there will be some difficulties, they are unlikely to be severe and may be no more serious than those which affect many adopted adolescents. Direct contact with her birth family in due course will, it is said, mitigate the risks. Conversely, it is argued by proponents of this view, if W were to be rehabilitated to her birth family, the trauma of a move from everything she has known will be severe, will almost certainly manifest itself within weeks at most of her move, and will very likely have consequences ranging from the severe, even assuming the placement does not break down, to the possibly catastrophic were it to break down.

The essential argument on the other side is that, if reunited with her birth family, W will fairly quickly and successfully navigate through and beyond any initial trauma and, having done so, will thereafter face a probably unproblematic future, both throughout her childhood and into and through her adulthood. Conversely, it is argued by proponents of this view, the difficulty – it is said the impossibility – of creating an honest and meaningful ‘narrative’ for W which she will be able to accept if she remains with Mr and Mrs A makes the likelihood of a future breakdown of the placement if she remains with them very real and potentially very damaging. This is linked with concerns that the direct contact which is being suggested may itself put the placement under strain and make it even more difficult for W to accept the ‘narrative’.

Having heard all the experts and professionals and assessed the parents and the As in evidence themselves, the President concluded that if W was to be sent to live with her father

[his] overall conclusion is that there is a very high probability of fairly immediate, and significant, levels of distress and trauma and a very real likelihood – just how high it is impossible to predict – that the placement would be put under such pressure that it might break down, which if it were to happen would carry with it a more than fanciful risk of catastrophe.

It was argued that in contrast, if W remained where she was,

the destructive impact of the narrative is more likely than not to have a detrimental psychological consequence in the medium and long-term.

His conclusion is best set out in full (slightly edited for ease of reading) :

1. I am, at the end of the day, driven to the conclusion, which in the event I arrive at unhesitatingly, that W must, for her own good, for her own happiness and for her welfare, now, in the years to come, into and through adulthood, indeed for the whole of what I appreciate may be a very long life – she may well live into the 22^nd century – remain with what for her is her family, that is, with Mr and Mrs A and their son. I have obviously considered very carefully…the likely effect on W, throughout her life, of having ceased to be a member of her original family and become an adopted person and…the ability and willingness of her birth family to provide W with a secure environment and to meet her needs, and also…their wishes and feelings regarding W. But I am also required… to have regard…to the relationship she has with Mr and Mrs A and their son and… to the value to W of that relationship continuing… 

2. Drawing the statutory threads together, the sad reality is that W does not now have, did not at the time of the hearing before me have, any meaningful relationship with her birth family; the most important, indeed from her perspective the dominating, relationship for W is and has for some time been with Mr and Mrs A and their son. The value to W of that relationship continuing is enormous. And while I recognise – how could I not? – the strength of the father’s wishes and feelings, and his absolute commitment to W and unconditional willingness to provide for her every need, one has to question his ability to do so; not because of any failings or limitations on his part, because for all practical purposes there are none, but because what would be demanded of him would probably be almost too much for any parent in his situation.

3. In coming to this conclusion I make clear that I have very much in mind the point pressed upon me by Ms Bazley and others, that, as I said in Re B-S, para 74(viii), judges “should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” But the stark reality here, in my evaluation of what the future in all likelihood holds, is that the future for W if she returns to her father is not one of merely short-term or transient problems; far from it. The risks of moving W from Mr and Mrs A are simply too great, and potentially so unmanageable, as to demand that they not be run.

4. Given that analysis, given my conclusion that W’s welfare demands that she remains with Mr and Mrs A, I am also driven to the conclusions (a) that W’s welfare requires that she be adopted – for her long-term welfare cannot otherwise be secured – and, a separate matter, (b) that her welfare “requires” (in the sense explained in the authorities) that her parents’ consent to her adoption be dispensed with. Adoption is demanded by the overriding necessity of W’s interests and welfare. Nothing else will do.

Whilst Sir James did think that there should be direct contact between W and her birth family, something that had potential to help her understand and come to terms with the complicated “narrative” of why she was removed from and could not be returned to live with her loving parents, he did not think it was possible or appropriate to make an order for contact, because it was just too difficult to predict what contact would work until it was tried. All parties, including the As, agreed that contact should happen.

And so, the parents’ consent to the adoption of their daughter was dispensed with, and an adoption order was made. It is reported on twitter that there is an outstanding application for permission to appeal to the Court of Appeal, but unless that is successful W will now become the legal child of the As. If there is any further update on the proposed appeal we will update this post. The As are no doubt relieved at the decision, but finding themselves involved in lengthy litigation through no fault of their own, after they have already opened up their home and hearts to a young child who they thought would be their daughter, cannot have been easy for them either. All the adults now face a period of further uncertainty whilst the appeal is determined, one can only hope that W remains, for now, blissfully oblivious of everything that is going on above her head. And that one day she will be comforted in her loss by the knowledge that she was very much loved by all her parents.

Feature pic : transparent dice by dicemanic on flickr (creative commons licence – thanks!)