Sir James Munby, President of the Family Division, has ordered a full re-hearing of a care and placement application made by a local authority in 2013 regarding a child who has since been adopted.
Shortly after the child X's birth in 2012, care proceedings and an application for a placement order were issued by the local authority. At a fact-finding hearing in 2013, a judge considered the local authority’s case was proved after reviewing three expert reports which identified X had various injuries including metaphyseal fractures. At a welfare hearing later that year, the same judge granted the local authority the requested care and placement orders.
In 2014 X was placed with prospective adoptive parents, who later applied to formally adopt him. However, in 2015, X’s birth parents applied for permission to oppose the application, whilst they were the defendants in a criminal investigation into the cause of X’s injuries. The judge refused to grant the birth parents leave to oppose the adoption, and granted an adoption order.
The adoptive parents thereby have full legal rights over X. In accordance with s.46 and 47 of Adoption and Children Act 2002, the adoption order terminates the birth parents' parental rights to the child.
However, in late 2015 the criminal trial concerning the birth parents was heard at a Crown Court, and they were acquitted. They therefore applied to the Court of Appeal for permission to appeal out of time against the judge’s original fact-finding judgment of 2013, as there was now fresh evidence (the acquittal) which needed to be considered, as per the test of Lad v Marshall .
This application for permission was heard, and granted, by Lady Justice Black and Lord Justice McFarlane in March 2016. The birth parents considered that if the original decision could be overturned they would be able to seek the revocation of the adoption order and re-establish their parental rights.
The Court of Appeal considered that, in light of the criminal trial, there were facts to be reconsidered. The court insisted that the adoptive parents should be informed of all following proceedings, and the appeal bundle disclosed. The local authority was given until 4 April 2016 to apply under inherent jurisdiction to bring proceedings in respect of X in the High Court:
Any application to invoke the inherent jurisdiction shall be (i) Served by the local authority on the adoptive parents of the child; (ii) Listed in the first instance before the President of the Family Division by not later than the 28th April 2016, subject to confirmation with the clerk to the President.
The local authority issued their application on 22 April 2016 seeking a 're-hearing of the fact-finding from the care proceedings'. The respondents were both the adoptive parents and the birth parents.
At an initial directions hearing on 28 April 2016, Sir James Munby granted an adjournment of the substantial hearing from 11 May 2016 to June 2016 so that the adoptive parents, who had not been informed previously of the appeal, could prepare for the hearing.
The adoptive parents have stated that although they 'appreciate and accept that in the interests of fairness the birth family are entitled to have a hearing on the fact following on from the outcome of the criminal trial', they understandably oppose any application to set aside the adoptive order. They also emphasised that not being informed of the legal proceedings in relation to X, when they are the legal parents, was a breach of their article 6 and 8 rights under the European Convention on Human Rights.
The hearing before Sir James Munby did not concern the revocation of the adoption order. However, the birth parents stated that they would apply for its revocation if they were successful in overturning the fact-finding judgment of 2013. Therefore, Sir Munby considered it was still an issue even though it was not clear if in this case the birth parents would reach the high threshold required for the setting aside of adoption orders, which occurs only in 'highly exceptional and very particular circumstances' when the order was not granted in good faith, based on the evidence provided.
The birth parents claim to be the victims of a miscarriage of justice, as in the case of Re Brandon Webster (A Minor) , and seek to clear their names, so that the fact-finding decision is not used against them in the future.
The Child Guardian appointed to X supports this application for a re-hearing, submitting that 'it is in X’s best interests that he should know the truth about his birth parents and about what did or did not happen to him'. Sir James Munby confirmed that X has a right to “know the truth about his past and about his birth parents”, and that it would be in the interest of justice.
Additionally, Sir James Munby considered that there is a public interest issue, as in the case of Re J (Reporting Restriction: Internet: Video) . In that case Sir James Munby stated that “human justice is inevitably fallible. The… Webster case stands as terrible warning… stark illustration of the fact that a miscarriage of justice which comes to light only after the child has been adopted will very probably be irremediable”.
In my judgment, and giving appropriate weight to the terrible burden which what is proposed will inevitably impose on the adoptive parents, although bravely and responsibly they do not oppose what is proposed, the claims of the birth parents, the best interests of X, and the public interest all point in the same direction: there must be a re-opening of the finding of fact hearing, so that the facts (whatever they may turn out to be) – the truth – can be ascertained in the light of all the evidence which is now available.
Therefore, Sir James Munby ruled that there should be a re-hearing listed for October 2016, with a further directions hearing needed in the meantime to consider questions relating to reporting the re-hearing.
The judge further stated that it would be up to the court in October to consider if there is any new evidence that casts significant doubt on the accuracy of the original findings (although he stated that he believed this test was met), and to give regard to the ambit of the re-hearing as a hearing in full, stating that “nothing short of a full hearing will suffice”.
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