S (A Child): Tainted report not permitted on re-hearing of adoption application

Sir Ernest Ryder
A summary of S (A Child) [2015] EWCA Civ 1345 (3 November 2015), which concerned the re-hearing of a step-parent adoption in respect of an 8 year-old boy, 'S'.

In February 2015 the Family Court at Reading heard cross applications by S's father for direct contact with S and by his stepfather, his mother's second husband, for a step parent adoption. The court made the adoption order.

The father appealed. The Court of Appeal allowed the appeal on the basis that the process that led to the adoption order being made was sufficiently flawed to amount to procedural irregularity because of unfairness. The unfairness was summarised as follows:
"(a) the court was misled about the involvement of the child and his representation in the adoption application and, given the issues in question namely adoption with no contact, it was inadvisable at the very least to discharge the child's guardian and remove the child as a party: it removed the child's voice from the process; 
(b) the limitation in the oral evidence that was heard, albeit caused by an agreement between the parties that cannot have been right, created a procedure within which the father's case was not put in any sufficient way, if at all, so that the process was unfair; 
(c) the evidence of the local authority social worker while apparently coherent and professional, did not deal with the issues of history relating to the the mother and was compiled by a professional colleague of the mother so as to give rise to an unacceptable perception of bias; and 
(d) the court did not deal with the significant issues of fact that had arisen about why contact had not occurred in the past and why the child's mother had not engaged with the previous proceedings."
The case was remitted for rehearing before a different judge.

A case management hearing took place before His Honour Judge Tolson, QC on 12 August 2015, at which the following directions were made:

(1) There be an independent social worker to address the issues of contact and adoption.

(2) Five issues of fact be considered, the determination of which would help resolve whether the father had been alienated from S by the mother and in any event, inter alia why there had been a cessation and non resumption of contact between S and his father.

(3) The annexe A report which was the subject of the Court of Appeal's criticism in the first appeal, remain as an admitted document, but an addendum be prepared by the same author to address the deficiencies identified by this court.

The father appealed against the third direction, on the basis that the existing annexe A report should not be relied upon and that the work should be undertaken afresh by a new reporter, unconnected with S's mother.

Three justifications were given for placing continuing reliance upon the original report and for asking the same author to write an addendum:

(a) The Court of Appeal did not find as a fact that the report's author was biased.

(b) The child was said to object to further questioning and assessment.

(c) The independent social worker and the children's guardian between them would, in any event, be independent of the annexe A reporter, so that full cross examination could take place on the latter's report and addendum.

Hearing the second appeal, Sir Ernest Ryder did not accept these justifications:
"First, this court decided that the annexe A report was fundamentally flawed. The court did not deal with the question of whether that was because of actual bias by the author, a failure to understand the reason why lack of contact between father and son was a key issue that on any basis required investigation, or both. It remains surprising that an annexe A reporter would not deal with an issue that important when considering whether the potential adopter is suitable and the mother who is the wife of that potential adopter is the only person other than the child who knows why contact did not take place. 
Short of the court deciding that there was no bias and there was an innocent reason for the failure to examine an issue that was so important, the report remains fundamentally flawed and no reliance can be placed upon the same. 
In an appropriate case, but probably not this case, it would have been open to the case management judge to have heard evidence at the case management hearing on the question of bias and the reasons for the fatal omission, so as to come to a conclusion that it was in the interests of the child to allow continued reliance to be placed on a report.  But that process did not occur in this case. The asserted justification is accordingly based on an assumption that is, in the context of this court's earlier conclusion, insufficient. 
Second, the child's apparent objection to any further discussion and/or assessment is part and parcel of the key issue in the case. The court needs the opinion of the children's guardian about that, uninfluenced by a tainted report. Whether the children's guardian and the independent social worker see the child once or more than once should have been left to the professional skill and expertise of the children's guardian. Insofar as that guardian may disagree with the independent social worker, one or other of them can bring the matter back to Judge Tolson. 
Third, the independent social worker will report on adoption and contact, but neither she nor the children's guardian are required to report or advise on the mandatory fields that comprise an annexe A report as set out in PD 14C. If the court wants alternative annexe A advice, it must say so; otherwise it will be by no means certain that there will be detailed material upon which cross examination of the annexe A reporter can be based."
Sir Ernest concluded:
"The report of an annexe A reporter is an important welfare protection for a child who is the subject of an adoption application. The court has already decided that it is tainted.  Reliance upon it, on the facts of this case, should not be permitted. The report should be removed from the bundle, as should the father's statement associated with it ... A new annexe A report should be undertaken by the independent social worker who should be directed to address the PD 14C criteria and that reporter should be permitted to see the child more than once, provided the children's guardian does not disagree."
Accordingly, Sir Ernest allowed the appeal. Lords Justices Sales and Richards gave concurring judgments.