CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 mars 2025

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THE UNITED KINGDOM (Application no. 38134/20)   JUDGMENT Art 8 • Family life • Decision to grant final adoption order in respect of a child already subject to a placement order, against the wishes of his mother, who has a history of mental health support needs, formally severing the biological ties and creating legal ties with the adoptive family • In case-circumstances prior placement order authorising child to be placed for adoption represented domestic court’s determination that child’s best interests required his adoption • Applicant’s failure to challenge placement order before this Court • Examination of relevance and sufficiency of reasons for adoption order to be carried out with due regard to the reality of the situation at the material time • Child’s interest in not having its de facto family situation changed weighed heavily in favour of granting the adoption order • Relevant and sufficient reasons given both for the adoption order and the refusal to make a special guardianship order preserving the biological ties • Making of adoption order within the State’s margin of appreciation • Applicant involved in decision-making process to a sufficient degree to provide requisite protection of her interests and was fully able to present her case   Prepared by the Registry. Does not bind the Court.   STRASBOURG 25 March 2025 FINAL   15/09/2025   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of N.S. v. the United Kingdom, The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:   Lado Chanturia , President ,   Jolien Schukking,   Faris Vehabović,   Tim Eicke,   Lorraine Schembri Orland,   Anne Louise Bormann,   András Jakab , judges , and Simeon Petrovski, Deputy Section Registrar, Having regard to: the application (no.   38134/20) against the United Kingdom of Great Britain and Northern Ireland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a British national, Ms N.S. (“the applicant”), on 27   August 2020; the decision to give notice to the United Kingdom Government (“the Government”) of the application; the decision not to have the applicant’s name disclosed; the observations submitted by the respondent Government and the observations in reply submitted by the applicant; the comments submitted by the Validity Foundation (“Validity”), which was granted leave to intervene by the President of the Section; Having deliberated in private on 4 March 2025, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The applicant complained about the making of an adoption order in respect of her child, Y, against her wishes. She relied on Article 8 and the Court’s judgment in Strand Lobben and Others v. Norway ([GC], no.   37283/13, 10 September 2019). THE FACTS 2.     The applicant was born in 1969 and lives in Wolverhampton. She was granted legal aid and was represented by Mr G. Thuan Dit Dieudonné, a lawyer practising in Strasbourg. 3.     The Government were represented by their Agent, Mr M. Boulton, of the Foreign, Commonwealth and Development Office. 4.     The facts of the case may be summarised as follows. 5.     The applicant has a history of mental health support needs. Her children, X and Y, were born on 2 October 2002 and 25 May 2011 respectively. Their father was murdered in 2012, which had a significant effect on the applicant and her children.         THE MAKING OF CARE ORDERS (2013-2014) 6 .     On 3 August 2013, the applicant was detained under the Mental Health Act 1983. The children were taken into police protection. On 5   August 2013, the local authority initiated care proceedings (see paragraphs 110-111 below). 7.     On 21 August 2013, the Mental Health Tribunal ordered the applicant’s discharge from detention. 8 .     Following her release, the local authority arranged contact sessions between the applicant and her children.   On 3 March 2014, the local authority implemented a reunification plan with a view to returning the children to the applicant’s care. 9 .     On 2 May 2014, X and Y were returned to the applicant’s care under a care order granting joint parental responsibility to the applicant and the local authority.       THE REMOVAL OF THE CHILDREN ( 2015) 10 .     On 27 March 2015, the applicant suffered a relapse in her mental health condition. X and   Y, then aged twelve and three respectively, were removed from her care and placed together in foster care. According to the local authority, it was hoped that further assessments could take place to examine the possibility of returning the children to the applicant’s care. 11.     The local authority arranged family time between the applicant and her children three times per week. However, the applicant failed to attend on eleven occasions in April 2015. At that point, the social worker stopped arranging visits because this was having a negative impact on X’s emotional well-being. Visits did not resume until September 2015 (see paragraph 18 below). 12 .     On 2 and 7 April 2015, the local authority arranged family group conferences. However, the applicant and her relatives did not attend. A further care planning meeting was arranged for 15 April 2015 but the applicant did not attend. 13.     In May 2015, the applicant was again detained under the Mental Health Act 1983. 14 .     On 15 May 2015, the local authority concluded that the applicant’s illness and inability to care for the children were having a detrimental impact on their welfare. It therefore amended its care plan in respect of Y to one of adoption and in respect of X to one of long-term foster placement. 15.     On 13   July 2015, a visit between the applicant and the children took place in the hospital where the applicant was being detained. However, this had a negative impact on the applicant’s well-being and she had to be restrained by hospital staff. 16 .     On 14 July 2015, in line with its permanency plans for X and Y (see paragraph 14 above), the local authority separated the children, who were from that point onwards in two different placements. X and Y subsequently had family time three times per week, arranged by their respective carers. 17 .     In August 2015, the applicant was diagnosed with bipolar affective disorder. She was subsequently released from hospital, under treatment. 18 .     In September 2015, family time resumed between the applicant and her children. Six sessions were offered for the month of September. However, the session scheduled for 1 September was cancelled by the local authority and at the session on 8 September, Y was not present and no explanation was given for his absence. Sessions took place as scheduled on 15, 22 and 28   September, but neither the applicant nor the children attended the session planned for 26 September. 19 .     According to the Government, between September 2015 and December 2016, the applicant was allowed to see her children together once per week. In their further observations, the Government stated that the local authority had facilitated sixty contact sessions between the applicant and Y between September 2015 and December 2016.     THE CARE AND PLACEMENT PROCEEDINGS (2015-2016)    The applications by the applicant and by the local authority 20 .     Meanwhile, in October 2015, the applicant applied to the Family Court to have the care orders in respect of X and Y (see paragraph 9 above) discharged on the basis that she had been previously misdiagnosed, was now receiving the correct treatment, was medication-compliant and had a greater awareness of when she was relapsing. 21 .     On 3 December 2015, the local authority applied for a placement order in respect of Y under the Adoption and Children Act 2002 (“the 2002 Act” – see paragraph 115 below). It also opposed the discharge of the care order in respect of X. 22.     The guardian supported the local authority’s position in respect of Y but concluded that X’s care order should be discharged and that X should be returned to live with the applicant. 23 .     On 8 March 2016, at four years old, Y moved to a foster-to-adopt placement with the carer who would later become his adoptive parent.    The hearing and order 24 .     On 8 December 2016, following a hearing lasting two days, the Family Court directed that X be returned to the applicant’s care and ordered that Y be placed for adoption with a prospective adopter. It delivered its ruling orally, with reasons to follow (see paragraphs 26-33 below). 25.     On 20 December 2016, the applicant and X had one final contact with Y under the local authority’s supervision.    The court’s judgment 26 .     In her judgment dated 10 January 2017 (see paragraph 24 above), the district judge acknowledged that the applicant’s mental health had been stable since her diagnosis (see paragraph 17 above) and noted that she had been cooperating fully with mental health and social services. She further noted that the applicant believed she could now recognise when she was entering a manic or depressive phase, but observed that she was still learning about her mental health condition and how to identify it. It was “very early days” to say whether the applicant would be able to identify and carry out protective measures in the future. This was particularly critical for Y, who was far too young to recognise signs of mental ill health in his mother. 27.     The judge found that X was “desperately unhappy in care” and also “very securely attached to his mother”. He was an intelligent, academic and exceptionally mature child who would have no trouble identifying the relevant signs of relapse in his mother and then seeking the necessary help from the mental health services should her mental state deteriorate. The judge accepted that both X and Y had suffered harm and were at risk of future harm as a result of the behaviour that the applicant’s illness had caused. However, in X’s case, although it had affected him, the applicant had “clearly done something right to have raised such a thoughtful, considerate, academic and capable young man”. The judge considered it to be a certainty that he would suffer serious harm if left in the care of the local authority. She concluded, “In the balance of [X’s] needs, he needs to go home to his mother”. 28.     However, Y’s needs and position were “entirely different”. He had settled well in his foster-to-adopt placement and had bonded with his carers. In the event of a placement order, those carers would apply to adopt him. The judge noted: “He would lose contact with his brother and his mother. That loss has to be considered in the balance.” 29.     Y had had less time living with the applicant but had been damaged by it. It was accepted that he had suffered significant harm. The judgment continued: “He needs stability, certainty, safety. He needs carers who can provide him with all the things that any young child has, but also continuity, predictability, and above all, continuous care uninterrupted by mother being in hospital. It may be that mother could provide that, but we would not know that for a considerable period, and the chances of her being able to do that are not good.” 30 .     The judge noted that the applicant had asked her to adjourn the proceedings while she undertook courses and therapy to demonstrate that she could provide and then sustain good enough care. The judge observed that were she to do that, Y would need to stay in his current placement “bonding, settling, being part of the family with the people who, so far as he knows ... are his family”. The only way to avoid that would be to move him to another foster placement, which would be “evidently inappropriate and very damaging”. It would also be “an experiment, given what I have already said about mother [in] this judgment, and adding to that, there being no certainty of success”.     The judge considered that this could not be acceptable and declined to do it. 31.     She concluded: “[Y]   cannot go home for the reasons already given and the only other course available, the only thing that will satisfy his welfare needs for life, is to give the local authority permission to convert the current placement for [Y] into a placement for adoption.” 32 .     The judge confirmed that she had considered all the evidence and had applied the welfare checklists in the Children Act 1989 Act and the 2002 Act (see paragraphs 111 and 113 below). She had considered the welfare needs and human rights of each child separately and had done what was in the best interests of each child, even when it went against the interests of the other. She noted that all members of the family had human rights, in particular under Article 8 of the Convention, and that where those rights were at odds with those of the child, then those of the child predominated. 33 .     The judge accordingly dispensed with the applicant’s consent to Y’s placement for adoption on the grounds that his welfare needs required her to do so (see paragraph 116 below) and gave the local authority permission to place him for adoption. She ordered X’s return the applicant’s care under a care order. The care order was eventually discharged in May 2018.    THE APPLICATION FOR AND OPPOSITION TO THE MAKING OF AN ADOPTION ORDER (2017-2018) 34.     On 26 May 2017, the prospective adopter with whom Y had been placed applied for an adoption order under the 2002 Act (see paragraph 119 below). 35 .     On 24 July 2017, the applicant applied for permission to oppose the making of an adoption order arguing a change of circumstances based on her acceptance and recognition of her mental health disorder and the work she had done with mental health care services to recognise her relapse triggers and seek help as required (see paragraph 120 below). 36.     On 20 December 2017, the Family Court ordered that an updated psychiatric assessment of the applicant should be prepared by Dr J.A. 37 .     Dr J.A.’s report is dated 5 March 2018. He noted that since the applicant’s discharge from hospital in 2015, her mental health had been stable. In his opinion, her current treatment was appropriate for her needs. Were she to experience a relapse, the symptoms were likely to be similar to those during previous episodes and, depending on their nature and severity, might affect her decision-making ability and her ability to prioritise her children’s needs over her own. 38.     Dr J.A. considered that the applicant had insight into her condition and was able to recognise the triggers for and early signs of relapse. She had indicated that she would seek professional assistance in the event of signs of relapse and was willing to accept advice regarding treatment and to take prescribed medication. He added that her recent history suggested that she had fully engaged with mental health professionals and had been consistent in her adherence to prescribed medication. He considered that if she continued to take her medicine and sought assistance in the event of relapse, it was “likely that any deterioration in her mental health could be detected and managed at an early stage, with minimal impact on the care of her child.”. As to the risk of relapse, Dr J.A. expressed the opinion that if she remained adherent to medication she was likely to remain well, but that there remained the possibility that she could experience further episodes. 39 .     He explained that for those suffering from bipolar affective disorder, anti-depressants should not be continued after resolution of depressive symptoms since there was a risk that they could precipitate episodes of hypomania in such patients. He considered that the anti-depressants previously prescribed for the applicant might have been a contributory factor in the development of a hypomanic episode that she had experienced in 2015. 40 .     On 3 April 2018, in view of Dr J.A.’s report, the Family Court granted the applicant permission to oppose the adoption order on grounds of a change in circumstances. It further stayed the application for an adoption order pending the application for leave to appeal the December 2016 placement order (see paragraphs 24 above and 41-42 below).      PROCEEDINGS FOR PERMISSION TO APPEAL THE PLACEMENT ORDER (2018) 41 .     Meanwhile, on 26 March 2018, after receiving counsel’s advice, the applicant applied to the Court of Appeal for permission to appeal out of time against the December 2016 decision to place Y for adoption (see paragraph   24 above). She argued that the placement order had been made on account of the instability in her mental health but that the situation had now changed. She relied on Dr J.A.’s assessment (see paragraphs 37-39 above). 42 .     On 7 June 2018, the Court of Appeal refused her permission to appeal. It noted that no good reason had been given for the delay but indicated that it would consider whether the merits of the appeal were such that it should give permission to appeal. In this regard, it held that the judgment contained a sufficient analysis of the evidence and of the judge’s reasons for her decision. The judge had had regard to the welfare checklist and it was clear that she had had in mind “the need to address ‘[Y’s] welfare needs for life’ ... and that he would ‘lose contact with his brother and mother’”. The court further noted that it did not appear that the applicant had been seeking Y’s immediate return at the time, since the judgment of the Family Court referred to an adjournment while the applicant undertook recommended therapy and courses. The judge had made an order supported by the guardian and by the evidence. The Court of Appeal concluded: “The judgment could have addressed some of the matters referred to [in the applicant’s grounds of appeal and skeleton argument] in more detail but I do not consider that the matters advanced establish sufficient merits to justify extending time and giving permission to appeal. The judgment contains a sufficient analysis of the available options and was not ‘linear’ such that the proposed appeal would have any real prospects of success.”    THE ADOPTION PROCEEDINGS (2018-2019)    Procedural issues 43 .     On 2 July 2018, the Family Court instructed that an independent social worker, C.A., prepare a parenting assessment of the applicant and ordered that an independent psychologist, Dr H.R., prepare an assessment of Y (see paragraphs 49-68 below). 44.     On 19 December 2018, X was given leave to lodge an application for contact with Y. 45 .     In April 2019, the applicant was diagnosed with cancer. In a statement to the court she explained that the timeframe for treatment was 6-8 months. She further explained that after the “life-changing diagnosis” she had carefully considered her position as regards Y’s care. She had reached the “difficult decision” that his placement should be with his current carer until adulthood. 46 .     In June 2019, Dr H.R. was asked to update her report in light of the applicant’s cancer diagnosis. She was also asked for more detail about how potential contact between X and Y might work (see paragraphs 69-72 below). 47.     In a statement of 16 July 2019, the applicant informed the court of a change in her position. She was now expected to make a full recovery and therefore again requested that Y be returned to her care.    Expert reports      Psychiatric report on the applicant by Dr J.A. 48 .     Dr J.A.’s report of 5 March 2018 on the applicant’s mental health is summarised in paragraphs 37-39 above.      Parenting assessment of the applicant by C.A., the independent social worker    Main report of 29 October 2018 49 .     C.A.’s report observed that the applicant’s mental health had remained stable since 2015. 50.     It examined the relationship between X and Y and commented on X’s distress and sadness that he had not seen his brother since December 2016 and would not see him again if the adoption took place. It continued: “I have asked [the applicant] whether her real gusto behind wishing [Y] to come home was motivated, in large part, by the evident sorrow [X] faced at the loss of direct relationship with [Y] and by her knowledge ... that [Y] pined for [X] ... [The applicant] assured me of her wish to have [Y] return to her care and did not want to see her two children separated without any direct contact between them.” 51.     The report considered the applicant’s understanding of Y’s needs. She had conceded that some of her behaviours when mentally unwell might have been frightening to [Y] but had considered that “75% of any damage caused to [Y] has been caused after he left me”. The report commented: “She did not identify that ... behaviours may be different in type and timescale to causation – soiling, for instance, perhaps being an indication of earlier damage and not present circumstances.” 52.     The report noted that the applicant had identified no real difficulties were Y to return to her care but would take advice on how this process should happen. Her experience of rehabilitation with X indicated that she did have capacity to work alongside the local authority. She believed that the renewal of Y’s relationship with X would more than compensate for any loss of X’s present carer. She was willing to assist Y with any therapeutic needs. The report continued: “[The applicant] does not have recent involvement with [Y] and her insights are limited by this lack of direct involvement and by, in my view, a blurring through, at the least the passage of time, of the realities of his care at home and during contact opportunities. There has to be a concern, in my view, of the impact of a lively, needy child – a child who may not, through hurt and damage, show change in the short term even if given sound, consistent care – on the quietness of [the applicant’s] household. [X] is placid and able to relate to his mother calmly, the environment is sedate, and [the applicant’s] work on maintaining her own health, apart from medication, is on mindfulness behaviours, concentrating on breathing rhythms, meditation and the like.” 53.     The report concluded that the applicant had maintained stability in her mental health for three years despite testing circumstances, including since the placement order had been made. X had been successfully placed with her and was happy and developing ably in all regards; the care order had been discharged. It continued: “[X] wants [Y] home and is evidently distressed at any thought that his relationship with his brother will be severed through adoption. The relationship between siblings is researched to be significant. [X] and [Y] have shared history ... and in all likelihood their relationship could be longer than any other family relationship available to them. This relationship will obviously require ongoing careful balancing in decisions made as had happened when the Judgment was made, albeit prior to [X’s] placement with his mother. It is clear that [X] demands very different care opportunities from his mother than would be the case for [Y]. It is clear that [X] has [a] significant relationship with [the applicant], differing to that described by professionals regarding [Y’s] attachment to his mother. Importantly, [Y’s] behavioural presentation and needs are likely to impact, in my view, on [the applicant’s] home environment with potential negative impact, in my view, on [the applicant’s] maintenance of her programme of self-care and, in likelihood, of detriment to her mental health.” 54.     Following this general conclusion, the report responded to specific questions put by the parties. As to whether the applicant understood Y’s needs, the report said that the applicant understood that Y had therapeutic needs and had a commitment to affording therapeutic opportunity for Y. However, she had a simplistic appreciation of how and why Y might be exhibiting sad and disturbed behaviours. She minimised the impact of her own parenting and how the lead up to mental health crisis and her “loud and frenzied behaviours” around the time of Y’s removal from her care would have been experienced as frightening and neglectful by him. 55.     As to whether she understood the local authority’s concerns in relation to her ability to parent Y, the report considered that she lacked sufficient insight into the difference in parenting Y compared to X. Significantly, there was potential for the strain on the applicant’s mental health to be triggered by Y’s more lively, loud behaviours and less opportunity for her to sustain her programme of health maintenance as a result of the additional burden of caring for Y. She did not accept that the trauma for Y of disrupting his present placement was sufficient to warrant that not taking place. 56.     Regarding whether, particularly in view of her own mental health needs, the applicant had the ability to care for Y, the report stated that while the applicant’s mental health had been stable since 2015, there were significant concerns about the impact on her health of the demands of a “damaged, hurting little boy who may ... hold little emotional connection to her”. Prioritising his needs lessened the opportunity for her to maintain her programme of relaxation, which was a necessary pre-requisite, alongside her medication, to maintenance of her mental health. The report continued: “I have little doubt that, when well, [the applicant] is capable with basic care and that she has a commitment to [Y] receiving appropriate therapy. I do wonder whether [the applicant] could contain demanding behaviour or tolerate loudness, in anything other than the short term, or regression as may happen during therapy or upon the loss of his present carer. I doubt her capacity in the long term unless [Y’s] behaviours are without interference on [the applicant’s] own needs. The applicant is motivated and committed to caring for [Y] both in the immediate and long term. I do wonder how much of her commitment, although I accept not in entirety, is motivated by [X’s] sadness about his brother’s circumstances and his intense desire to have direct contact opportunity to [Y].” 57.     Concerning the applicant’s capacity to care for Y long-term alongside X, the report noted that X had settled well into the applicant’s care and had flourished since leaving foster care. It was fair to presume that he was easy to care for. Caring for X alongside Y did not, therefore, alter her capability to care for Y. However, the report noted that both X and Y would suffer were the applicant’s mental health to decline under the strain of caring for both. Y would then experience further placement disruption and X would experience disruption during an important period in his education. 58.     Asked about any limitation of the applicant to care for Y alongside X, the report expressed reservations about her capacity to manage the varying needs of Y and to remain well through the potential testing out and energy of Y as he went through his therapeutic journey. It noted that Y would be faced with the separation from his placement, in likelihood the place where he felt most secure and now viewed as his home. This, added to his already demanding needs, would require skilled and imaginative parenting and beyond what would be viewed as “good enough”. 59.     As regards a risk assessment of the applicant, the report observed that aspects of instability and lack of safety had featured in Y’s life and had had an impact on his development. Children of Y’s age and background were completely dependent on their primary carers. Y did not have the internal resilience or ability to care for himself or to protect himself from harm. He remained in need of robust protection and stable, consistent monitoring and meeting of his needs. X afforded something of a protective feature and would seek help for his mother if it were required. However, the applicant’s stability of mental health remained a risk factor in planning for Y, as did the fact that the applicant required her own opportunities to modify stressors and anxieties through periods of quietness and through use of relaxation techniques. Y needed stability, availability and predictable, imaginative care; C.A. was not assured that the applicant had the capability at this stage to offer that reliably.    Addendum of 4 December 2018 60 .     C.A. provided an addendum to her report taking into account the psychological assessment of Y by Dr H.R. (see paragraphs 62-68 below). In the addendum, she expressed the view that given Dr H.R.’s finding that Y showed no attachment towards his mother, the applicant would be ill-equipped to assist him. She did not have the skills or, in likelihood, the inner resilience to manage Y’s therapeutic needs and his resentments and lack of attachment towards her. Y’s welfare demanded care from a carer with personal resilience and strong external supports. The addendum continued: “For the reasons identified above and in my main report, I doubt [the applicant’s] capacity to parent [Y] in his timescale, even with further training. His therapeutic needs and attachment distortions are likely to negatively impact close, significant relationship with his mother. His behavioural responses are likely to regress and deteriorate on disruption of his present placement, and are unlikely to be managed by [the applicant] and with the potential for significant impact on her health and on the happiness of [X].” 61 .     On the issue of contact with X, the addendum noted the conclusions of Dr H.R. in her report (see paragraphs 63 and 67 below), referred to the applicant’s particular concern at the lack of sibling relationship and expressed the hope that Y’s carer would be afforded support and encouragement to further consider the issue. X would have to be given clear guidance as to the expectations and boundaries of behaviour and be aware that the stability of Y’s placement took precedence over direct contact.      Psychological report on Y by Dr H.R.    Main report of 25 November 2018 62 .     In her report, Dr H.R. underlined Y’s need for a secure and permanent placement and a carer able to provide him with sensitive and emotionally in-tune parenting. The report referred to Y having begun to develop an identity of himself as his carer’s child and as being a member of her family. He had spoken of things that they would do together, as a family, in the future. The report explained that when a fostered or adopted child developed a sense of belonging that could be projected into the future, this provided the child with a secure emotional base and a buffer against emotional distress. It noted that Y continued to hold an identity of himself as being part of his birth family. This was healthy, since it showed that he was able to acknowledge his whole life chronology and his place in both his birth and current family. 63 .     The report noted that Y had accepted that he would not see the applicant again and had expressed no wish or yearning to see her. He had not shown any form of attachment toward her. It was clear that Y did want to see X and missed him. However, he understood why this was not possible. The prospective carer had expressed some concerns about contact with X, because of the risk that X would undermine Y’s placement. 64 .     The report stated that it would be detrimental to Y’s emotional and mental health if he were to move to another carer. He had made very significant progress in his time with his prospective adopter due to the combination of love, nurturance, routine and boundaries she had offered. If he were to endure another placement move then this would undermine all the progress he had made. His age and current stage of development meant that he would not be able to fully process and understand the reasons for another move but would end up interpreting this in a self-focused manner, believing that it meant that he was “bad, unlovable and unwanted”. The report continued: “In short, another move for [Y] would provide him with an experience of rejection and abandonment. It would place him at even greater risk of emotional and mental health difficulties. It would also make it even more likely that he shows an escalation in his difficult behaviour in a future placement, making that placement vulnerable to breaking down and disrupting as well. None of these events would be in [Y’s] best interests.” 65 .     The report further observed that during the assessment Y had not expressed any feelings of emotional safety or a secure attachment with the applicant. If he were to be returned to her, then this would be a confusing experience and trigger emotional distress. 66 .     The report also examined the impact of Y being placed in foster care instead of adoption. It noted that the most pressing need was for Y to remain with the prospective adopter because of the attachment he had developed with her. The prospective adopter had spoken about her reluctance to be Y’s foster carer: she wanted to be an adoptive parent. The report further considered that an adoptive placement would be preferable for Y because it would provide him with a more typical childhood and would avoid him developing an identity of himself as “being in care”, which could be stigmatising. With foster care, there was the risk that placements could change and that support would cease once the child reached adulthood. Dr.   H.R. concluded: “Ideally, he needs to stay where he is”. 67 .     On the question of renewed contact with his birth family, the report stated that it would be in Y’s best interests to have face-to-face contact with X given the high value that he placed on his brother. It noted that Y did not share any negative or difficult memories of his time with X, and that it was clear that Y missed X and felt angry at not being able to see him. The report did not identify a need for face-to-face contact with the applicant, observing that Y had no positive relationship with or attachment to her. Contact would confuse him and trigger difficult emotions. 68 .     Asked for guidance on how the applicant might be assisted to support Y were he to be returned to her care, Dr H.R. underlined that she did not support Y returning to the applicant’s care. It was likely that his “myriad of challenges” were related to him not having his most basic needs met at a very young age. He did not have a positive relationship with his mother and would be likely to express anger and confusion about why he was returning to live with her, if this happened.    Addendum of 27 June 2019 69 .     Dr H.R. was asked to provide an updated assessment responding to questions linked to the applicant’s cancer diagnosis and issues around potential contact between X and Y (see paragraph 46 above). She provided an update in an addendum report of 27 June 2019. 70.     In respect of contact with X, Dr H.R., provided some further proposals for how contact should be arranged.   In view of the prospect of contact, she considered it important to address with Y through a “life story book” the reason why Y had not been returned to the applicant’s care while X had. It would be helpful for Y to know that his mother had expressed the desire to have him returned to her care. Dr H.R. recommended that this information be written into his life story book. 71.     She considered that Y should not be informed of the applicant’s cancer diagnosis since the knowledge would cause him anxiety and he would likely struggle to understand what it meant. The applicant’s cancer diagnosis did not change Dr H.R.’s view that there should be no face-to-face contact between Y and the applicant. However, she noted that Y would potentially seek contact with her when he was older and it would be distressing were he to discover then that she had died from her illness. Dr H.R. recommended that the applicant’s treatment progress and prognosis be closely followed; if it became clear that she would not survive then Y would need to see her. Both parties would need support were this to take place. 72 .     In her view, none of these considerations altered the appropriateness of an adoption order which would offer Y the opportunity to legally join another family and be given a secure, life-long home.    The hearing 73 .     The final hearing on the application for an adoption order took place before the district judge in the Family Court in July and August 2019. 74.     Prior to the hearing, the prospective adopter had indicated that she would not be prepared to care for Y unless an adoption order were granted. At the hearing, she informed the court that her position had changed and that she wished to continue as Y’s carer in whatever capacity the court decided. She further supported contact between X and Y provided that appropriate ground rules for contact were put in place. The applicant maintained her opposition to the adoption order and sought Y’s return to her care. In the alternative, she argued for ongoing contact with Y under a special guardianship order (see paragraph 122 below). This would allow Y to stay with the prospective adopter but would not sever biological ties. The local authority and the guardian supported the application for an adoption order. X wished Y to be returned to the applicant’s care and sought direct contact between him and Y. 75 .     The judge had before him the trial bundle of written evidence and heard oral evidence from Dr H.R, C.A., a local authority social worker, the applicant, X, and Y’s guardian.    The Family Court’s judgment 76 .     The Family Court handed down its judgment on 15 August 2019. No official transcript of the judgment has been made available; however counsel’s note of the judgment, prepared by counsel for X, was submitted to the Court by the respondent Government. The summary and quotations below are from that detailed note.      Review of the evidence 77 .     The judge began by reviewing the evidence before him. He noted that Dr H.R.’s oral evidence was that Y showed positive emotions towards the prospective adopter and X. However, Y had given no responses at all that conveyed that he had a relationship with the applicant. Y exhibited some ongoing problems and behaviour which Dr H.R. considered were the result of early life experiences. However, Dr H.R.’s perception of the applicant’s position was that she considered that these behaviours had developed since his removal from her care. The judge further referred to Dr H.R.’s evidence that Y had not expressed any feelings of safety or secure attachment towards the applicant and that a return to her care would be confusing for Y and trigger emotional damage and a deterioration in his behaviour. He noted Dr   H.R.’s conclusion that Y needed a “very clear message” about where he was going to stay, and that “any doubt about that would have a huge impact on [Y] leading to him needing very significant therapeutic work”. According to Dr   H.R., Y’s most pressing need was to stay with the prospective adopter because of the attachment he had started to form with her. In her view, Y had a pressing need for one person who could claim him “legally and emotionally”. The judge also noted that Dr   H.R had said that contact with X was important for Y and would lessen his distress at being separated from his brother. 78 .     The local authority social worker had given evidence that Y had settled in his placement and was developing a warm, positive bond with the prospective adopter. She had acknowledged that he was missing X and that this was having some impact on the placement. The judge noted that the social worker had considered the possibility of a special guardianship order and observed: “[S]he didn’t feel it appropriate because it wouldn’t give [Y] the security he needed. She had also considered that a Special Guardianship Order may give rise to a number of practical difficulties in situations where Mother retains parental responsibility and she was concerned that that might lead to further court proceedings which she felt [Y] wouldn’t be able to cope with. She also said there were financial ramifications for [Y] in terms of funding available through the adoption support fund, which would only be available through a Special Guardianship Order by means testing via the resources panel.” 79.     The judge further observed that the local authority social worker had been confident that the prospective adopter would facilitate contact with X if it was in Y’s best interests. 80 .     The judge recorded C.A.’s evidence that the applicant had the capacity to work with the local authority and had maintained her mental health stability through challenging times. He noted that C.A. had been “at pains to point out in her assessment that Mother should be given enormous credit for what she’s achieved, and credit to [X] who she describes as a young man with inner resilience”. However, the judge noted C.A.’s evidence that the parenting demands of Y would be very different from what X required and that the dynamics of the applicant’s relationship with Y would be very different from her relationship with X. He observed: “[C.A.] was concerned that Mother doesn’t have significant insight into the difference between parenting [X] and [Y], or the potential strain to her own health being triggered by [Y’s] more lively, loud and troubling behaviours. She said it was plain that [Y] would need more than good enough parenting ...” 81 .     The judge noted C.A.’s view that contact between X and Y was crucial and her concern that the process of starting contact had not yet been put in place. C.A. had further indicated that she herself had thought about the possibility of a special guardianship order, which she had described as a “realistic option” and as an option “leaping from the pages”. She had acknowledged that it would pose difficulties but felt that the applicant could be worked with. 82 .     The judge then referred to the applicant’s evidence as to the stability of her mental health since she had been correctly diagnosed and receiving the right treatment. He continued: “Mother was concerned that she had received very little information regarding [Y] since the placement order was made. She was concerned that if [Y] remained with the [prospective adopter] under a Special Guardianship Order, she would want a lot of intervention to ensure [Y’s] best interests were being met. She gave evidence in particular of cultural and religious aspects of the placement which concern her ...” 83 .     The judge further noted that the applicant had questioned the attachment of Y to the prospective adopter and had considered that although there would be an impact on Y if the bond between the two were broken, this would be no greater than the breaking of the bond she had had with Y when he was taken into care. 84 .     As for the guardian’s evidence, the judge noted that her analysis had been completed on 10 April 2019. He summarised her evidence and observed: “She concludes, having carried out a full written analysis in her report, that in her view adoption is the only realistic option.