Prospective Adopters v London Borough of Ealing & Ors [2023] EWFC 294 (14 November 2023)

This is a case where HHJ Downey was faced with two stark options for a young boy: either to make an adoption order or to sanction a phased return and placement with his birth mother. 

Parties’ positions

E was a young toddler aged 2 years and 8 months. He had been placed with his prospective adopters for seventeen months. His parents, SK and NS, supported E being cared for by the Mother. Alternatively, the Father proposed placing E with him. The Local Authority and Children’s Guardian both supported adoption. 

History 

The Mother was an Indian national who came to the UK on a visitors’ visa in October 2019. She was joined by her husband, GS, and their two children, L, aged 20 and J, aged 13. After their marriage ended, the Mother subsequently formed a relationship with E’s father, NS. The Mother and her daughters moved in with NS, and she became pregnant with E. 

Care proceedings were initiated following an incident at NS’ property on 18 August 2020 following allegations by L to the police that she had been sexually assaulted by NS and that he had physically assaulted L, J and the Mother who was pregnant with E. Care proceedings were initiated due to the risk to J, and later included E following his birth.  At a separate fact-finding in September 2021, Downey J concluded that the Mother and NS had not been truthful and made the four key findings. 

During the welfare hearing, Downey J concluded that the parents could not meet E’s needs because they failed to understand the risk of harm to E arising from their relationship and the abuse that had occurred. Importantly, both parents were considered to lack credibility. 

The mother’s position in opposing the making of an adoption order was that significant changes had occurred since the fact-finding hearing to justify placement of E with her. Downey J was invited to conclude that the Mother had separated from NS, developed better insight and was open to working with professionals so that a placement of E could be safe, and the risks could be managed.

The key principles which Downey J applied in reaching her decision were set out in a the decisions of the Strasbourg Court in R and H v UK [2011] ECHR 844, YC v UK [2010] ECHR 1228 and the decision of the Supreme Court in Re B (Care Proceedings: Threshold Criteria) [2013] UKSC 33 and more recently the Court of Appeal decision in Re W (A Child) [2016] EWCA Civ 793 and Re W [2017] EWCA Civ 829.  Downey J noting that “if in the final analysis there is a conflict between the child's welfare, which is paramount, and the rights and claims of even an unimpeachable parent, it is the child's welfare which takes precedence”.

Analysis 

In evaluating the benefits of each placement, Downey J highlighted the following factors as relevant to making an adoption order: 

• E had formed a close bond with his prospective adopters, his sibling, and their wider family over seventeen months; 
• the placement offered certainty of care in the adopters’ household; 
• E was likely to suffer irreparable, short-term and medium and longer-term emotional harm from being separated from his primary and only attachment figures;
• the was a potential risk for life-long impact on E in breaching his trust in adults after having been told that the adopters were his forever family; 
• the fact that E had been with the adopters over half his life and in his world, they were his family;
• there was concern that the parents speak Punjabi and E has only spoken English with his prospective adopters which meant that it may be difficult for the Mother to reassure E and E’s ability to express himself and communicate might be impaired; and 
• the limited insight shown by the parents, the subsequent lack of honesty with professionals and the risk of them reconciling meant it would be difficult to manage the risks of and monitor a placement with the birth parents. 

Decision 

Downey J granted the adoption order given the overriding need permanency and stability for E. Downey J noted that the parents had not made sufficient changes, not because of concerns about their parenting abilities, but because of their inability to reflect and show insight into the Court’s findings and be open and honest with professionals to enable a placement with the Mother to be safely managed.  

In closing Downey J thanked “all of the advocates and professionals for their help on this difficult case”.

Ann Osborne was instructed on behalf of the Mother by Tish Reel of National Legal Services.

25th Mar 2024

Ann Osborne

Call 2016 | Admitted as a Solicitor: 2006

Matthew Timm

Call 2021