Judge’s ‘Message in a Bottle’ to Judgment Impacted Child

In Prospective Adopters v Helen, Simon and Frank [2023] EWFC 239 (17 October 2023) it fell to the judge of the Family Court of England and Wales – District Judge Richard Doman – to adjudicate whether a three year old child, Frank, ought reside permanently with the Prospective Adopters, or rather with his mother, Helen, or his maternal aunt Linda (the names of the parties were ordered anonymised). The adjudication made, on the merits, was that Frank reside with the Prospective Adopters. The reasons for judgment are of particular interest, however, because of the postscript in the reasons directed by the judge to Frank in the event that he, as an adult, desired to be informed as to why the adopters were preferred over Helen and Linda (Frank was represented by separate counsel at the two day hearing). 

Critical to the merits of the challenge by Helen’s family to Frank remaining with the prospective adoptive parents – with whom he had been living for a year – was that Helen had been consistently challenged by drug abuse, impacting upon Frank’s care, and that Helen and Linda were emotionally close. In addition, Helen’s family contended that the fact that the Prospective Adopters were a same sex couple offended their religious faith and militated against the standard of care likely to be afforded Frank (this being rejected in the judge’s reasons – see [36] and [37] in particular).

His Honour’s conclusion, and the postscript ‘Message to Frank’, were as follows:

Conclusion

57. I am dismissing Helen’s application for leave to oppose the making of an adoption order. This is a dismissal on the merits of the application because I did not consider it to be in the interests of justice to summarily dismiss the application on the basis that Helen’s legal team had been without instructions since 13^th June 2023 and it is clear she is misusing substances again and/or her mental health has deteriorated. I can only hope that she is as safe as she can be, and that in time she obtains the help she needs.
58. The focus of the application was for Linda to be re-assessed. This had two limbs to it: first that Adam, her nephew and Helen’s older child, had left Linda’s care; and, secondly, that she was able to prioritise Frank’s needs.
59. My fundamental difficulty with Linda’s case was that she was comprehensively assessed twice within the care proceedings and both assessors came to a similar conclusion:

a. That Linda was not open and honest about all aspects of her life.

b. That she would not be able to sufficiently prioritise Frank’s welfare and protect him from the chaos and instability that his mother and the wider maternal family pose.

60. There were positive aspects of those assessments, particularly in respect of the basic primary care that Linda was able to demonstrate with her own children. Those negative aspects when combined with Linda’s lack of commitment to Frank throughout the care proceedings and since outweigh the positive factors. When considering the circumstance that exist today and those that existed at the conclusion of the care proceedings I am not satisfied that there has been a change of circumstances. Even if I am wrong about that, in my judgment those changes are too insignificant to be material changes to the most cogent risks, namely protection of Frank from harm, and also not of a sufficient nature and degree that I should exercise my discretion to grant leave to oppose.
61. I fully recognise that decision will be crushingly disappointing to Linda and the rest of the maternal family.  I cannot, however, escape Frank’s lived reality: he has been placed with the applicants for over a year, they are all he knows and he is receiving extremely good care from them. If I were to have concluded that there had been a material change of circumstances of sufficient nature and degree I would still have to have considered whether or not to grant the application having considered the 2002 Act welfare checklist. Having conducted that analysis for myself I consider that Frank is at a crucial age of development and his lifelong welfare demands he have permanence as to where his life will be. His proceedings were already delayed by Ms Stollard’s assessment, and I conclude that it is unconscionable that he should suffer further delay and uncertainty for what would be at best a speculative re-assessment.  In short, even if Linda had satisfied me on the first limb of the Re P test, given my conclusions as to Frank’s welfare, I would have refused the application on the second limb.
62. This application will now be listed before me on the first available date after 21-days for an adoption final hearing.
63. That is my judgment.

Message to Frank

64. It is not uncommon in 2023 for judges to be told that when adopted children grow up they wish to read the judgment or transcript of the last major hearing before they are adopted. I am writing this message for you, in case you ever do read this.
65. I want to start by telling you that in many ways you are very lucky for two reasons. First, you have a birth family who dearly wanted to care for you, fought for you and to bring you up within their family. Secondly, your adoptive parents desperately wanted to care for you and wished for you to become their son; they withstood all the emotional turbulence that these proceedings bring to adoptive parents and were unwavering in their love for you and desire to give you the very best home they can.
66. I don’t have a crystal ball; I can only make decisions about you based on the evidence I have available to me at the time I make it. That might sound obvious but sometimes emotions can overwhelm people.  I think that emotions have overwhelmed your birth mother, Helen, and that caused her mental health to decline and she seeks solace in drug misuse which only make things worse for her. Sadly, as you will have read, she was unable to break that cycle. I hope she does, and she heals and finds peace in her life. I also think that your aunt Linda, really wanted to look after you, but I think it would have been very difficult for her to say “No” to your birth mother when she needed your aunt’s support, causing you upset and potentially chaos in your life.
67. I want you to understand though, that was my decision, not theirs. You should not blame them.  They fought for you. 
68. Returning to my crystal ball: on all the evidence that I have available to me I am very confident that you will have a wonderful life with your adoptive parents. You are their number one priority.  You are their son, and will be for your entire life. Their family life is your family life. They will love you, comfort and nurture you to become the person you are when you read this. When you do I hope that it provides an answer if there was a question, understanding if there was confusion and some comfort if there is hurt.
69. Lastly, I wish you all the very best in health and success in everything you do in your life.
70. Yours, District Judge Richard Doman.

The full judgment reasons may be found here.