B1/01/0365

Neutral Citation Number: [2001] EWCA Civ 868
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE LEICESTER COUNTY COURT FAMILY DIVISION
(HIS HONOUR JUDGE O'ROURKE)

							Royal Courts of Justice
							Strand
							London WC2A 2LL

							Friday 18 May 2001

B e f o r e:

LORD JUSTICE THORPE
LORD JUSTICE LAWS

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IN THE MATTER OF

RE S (A CHILD)

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
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MISS J BUTTLER QC (Instructed by Messrs Elizabeth M McCalla, County Hall, Leicester, LE3 8RA) appeared on behalf of the Appellant/Local Authority.

MS NANCY HILLIER (Instructed by Messrs Hawley & Rodgers, Leicester, LE1 6TA) appeared on behalf of the Respondent/Mother.

MISS S STAITE (Instructed by Messrs Dodds, Leicester, LE1 5RA) appeared on behalf of the Guardian ad Litem.
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J U D G M E N T
1.	LORD JUSTICE THORPE: The respondent to this appeal was born in August 1982, so she is 18 years of age. When she was only 15 she gave birth to a little girl, C. She managed to care for C in a foster home until C was about 11 months of age when she abandoned that responsibility and moved into a flat adjacent to an old people's home. C remained in the foster home until she was 2¼ years of age. The local authority inevitably reacted to this break down by issuing an application for a care order in March 1999. 
2.	Over the ensuing 12 months, the mother's life was somewhat chaotic. She failed to attend contact sessions. The case was listed for final hearing on 16 February 2000 when the mother had the advantage of representation by local solicitors and also by Mrs Hillier, who was instructed to represent her and to contest the application for a care order. Mrs Hillier has told us, very frankly, that as a result of the chaotic nature of her client's life over Christmas it was unrealistic to oppose the application. At that stage she was incapable of offering a home to C and her future prospects were far from encouraging. Accordingly on the application, although not consenting to the order, Mrs Hillier did not oppose it. The order meant indorsing a care plan that C be placed for adoption. The level of contact was at the same time reduced to a monthly visit which took place until a farewell visit on 10 May, leading to C's move from the foster home where she had been living to prospective adopters. 
3.	All seemed to be settled until, on 23 October 2000, a letter was received from the mother's solicitors requesting contact and indicating that she would not consent to the local authority's application for a freeing order. However, the revival of that contention was not followed through. No application for contact was issued, nor did the mother appear on the hearing of her application for authority under section 34(4) to refuse contact. That application came before Judge Hall on 18 December. Equally, when the freeing application came for hearing on 16 January before Judge O'Rourke, the mother appeared without representation.
4.	Mrs Hillier has explained that such work as was carried out by her instructing solicitors in October was done as an act of charity. Their attempt to obtain legal aid for the mother at that stage in relation to contact and to oppose the application for a freeing order did not succeed. Even proceedings in this court did not incline the Commission to grant legal aid until Tuesday of this week. 
5.	So Judge O'Rourke's task was perhaps rendered more difficult by the fact that the local authority's application, fully supported by the guardian ad litem, was opposed by the mother without legal representation. It would also have been easier for the judge had the issue come before him at the same time as applications on the mother's behalf to resume an active and full role in C's life. Had there been an application by the mother to discharge the care order, had there be an application by the mother to revoke the authority granted on 18 December, then the judge would have been able to decide all issues in the round, considering what the mother had to offer against what the local authority was proposing and what, through them, the prospective adopters were offering. 
6.	The reality of such a review all rested on the foundation of a remarkable change achieved by the mother almost immediately after the making of the care order. At about the time that order went, the mother met her current partner. Mrs Hillier has told us that the mother moved in to live with him at his parents' home at the end of February. Thereafter she found a job and settled down into a mode of life that contrasts most sharply with the mode of life that she had voluntarily adopted between January 1999 and February 2000. The essential case that she presented to Judge O'Rourke was: here am I a changed person and here is my partner and together we have something real and valuable to offer C. 
7.	The judicial task centred on sections 6 and 16 of the Adoption Act 1976 and, in particular, section 16(1)(b) which constrained the judge from making an adoption order unless he was satisfied that the mother was unreasonably withholding her consent to the freeing order. This was one of those cases where only the mother's position was required to be investigated since C has, effectively, no father. 
8.	The judge heard evidence and, as my Lord has pointed out during the course of argument, the submissions by Miss Dorkins, on behalf of the local authority. She advanced six reasons why the judge should grant the application and why the mother's withholding of consent was submitted to be unreasonable on the facts of the case. 
9.	The six reasons advanced by Miss Dorkins in her submissions were comprehensive of the local authority's position. They were obviously of value to the judge for he said at the end of submissions that he found the issues very clear but that the decision was not easy. Accordingly he said that he would adjourn for a matter of days in order to consider his decision. His decision was then given on Thursday of the same week, 18 January 2001. It is plain that in the intervening days the judge had not only reflected deeply on which way his decision should go, but had also researched thoroughly the relevant authorities that guided the exercise of his discretion. 
10.	Although it seems that the cases had not been cited by the advocates, in the course of his reserved judgment the judge referred extensively to the locus classicus, the decision of the House of Lords in Re W [1971] AC 682. He also referred to the well‑known joint judgment of Steyn and Hoffmann LJJ in this court in the case of Re C [1993] 2 FLR 260 and the more recent decision of the court in the case of Re F (The Times 6 July 2000). Plainly, the judge clearly had in mind the six considerations urged by the local authority as well as the test that he had to apply on the judicial construction of this difficult section developed over the course of the last 30 years. The difficulty lies not in the language of the section, which could hardly be more straightforward, but in applying it to what are usually agonising situations. 
11.	Miss Buttler QC, for the local authority, has emphasised that this was by no means a finely balanced issue. On the history this was a disadvantaged mother who had conceived in her mid‑teens, who had then careered off into adolescent living, who had not opposed the care order, who had accepted adoption, who had said goodbye to her daughter, and who appeared unrepresented before the judge. The chances of the judge denying the local authority the freeing order that they sought, must have seemed pretty slender. She says that adoption was overwhelmingly in C's interests and the judge did not sufficiently focus on that fact. She says that the inevitable consequence of refusing the freeing order was to plunge C's future into uncertainty, delay was inevitable and those factors were insufficiently considered by the judge. She submits that he failed to give due weight to the risks of placing future responsibility on this young mother and insufficient regard to the harm to C in disturbing present arrangements and separating her from the prospective adopters with whom she was so well settled. 
12.	Miss Buttler's submissions are adopted by Miss Staite, for the guardian ad litem. She charges the judge with having placed too much emphasis on the mother's rights and too little on the child's welfare. 
13.	Miss Hillier, for the mother, says that this was all a matter of fact and discretion. Her client had achieved a sea change almost immediately after the making of the care order. By the date of the hearing for the freeing order she had established a foundation from which she had much to offer C in the future. She submits that this is an exceptional case and there is simply no warrant for this court to interfere with a carefully considered discretionary conclusion. 
14.	It is, in my opinion, of great importance to emphasise that the judge was very favourably impressed by the mother and her partner. He said almost at the outset of his judgment: 
“She has had to attend this hearing without the benefit of advice or representation. She was coaxed into taking the stand to answer questions posed by me and by Miss Dorkins .... and on behalf of the guardian. I was able therefore to form an impression of her. Also, she asked me to hear from [M] who has filed a statement in the case. He is an important person in her life. He also was able to answer questions and, if I may say so, gave me a favourable impression. I found it very useful, indeed, being able to see and hear both these two young people. 
The judge undoubtedly had the considerations urged by Miss Dorkins well in mind. He said towards the close of his judgment: 
“The strongest argument put forward for proceeding now with a [freeing order], is that to do otherwise would be to disrupt the placement and would have the effect of losing for C the option of being brought up by this couple.” 
15.	The judge said that that was an important argument but that it could not be conclusive. 
16.	In my opinion Mrs Hillier is right to classify this as an exceptional case which depends fundamentally on the assessment that the judge made of the mother and her partner having had the opportunity of seeing them in his court, questioned at a time when they did not have the shield of representation that can sometimes disguise the true state of mind and feeling of adult witnesses. 
17.	The conclusion that the judge reached is plainly one that another judge might not have reached; indeed, it could even be said that it was a surprising conclusion. But, nonetheless, it seems to me that it would be unprincipled for this court to accede to this appeal. To do so would be almost to determine that it was not open to the judge to refuse the application whatever view he took of the young couple. 
18.	In determining whether or not the mother's refusal was unreasonable, inevitably the judge had to make some assessment of what she had achieved and what she had to offer, despite the fact that she had no applications before the court at that stage to authorise her re-entry into the child's life. All he was deciding was whether or not the local authority had discharged the burden of showing that her opposition was unreasonable. He reached the clear conclusion that they had not. 
19.	In my opinion the attack that is launched upon his rationalisation of the conclusion is little more than saying that he should have given more weight to this consideration or he gave too much weight to some other consideration. In my opinion that is not enough. No sufficient misdirection has been demonstrated to justify intervention by this court.
20.	For my part, I would dismiss this appeal. 
21.	LORD JUSTICE LAWS: I entirely agree. 
Order: Application refused. Certificate for Legal Aid Assessment of the parties costs.
(Order does not form part of approved Judgment)