A, B, C, D, E and F (Children)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] EWHC 35 (Fam) |
| Court | Family Division |
| Docket Number | Case Numbers omitted |
| Date | 17 January 2017 |
[2017] EWHC 35 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case Numbers omitted
Mr Nicholas Stonor QC and Mr Justin Gray (instructed by Hadaway & Hadaway) for the guardians of A, B, C, E and F
Ms Lorraine Cavanagh (instructed by John Whittle Robinson Solicitors) for the guardian of D
Ms Deirdre Fottrell QC (instructed by Russell Cooke) for the prospective adoptive parents of D
Ms Alexandra Conroy Harris (of Newcastle City Council) for Newcastle City Council
Ms Frances Heaton QC (instructed by the local authority) for Blackburn with Darwen Borough Council
Mr Alan Inglis of the English Bar and Scottish Bar (instructed by local authority solicitors) lodged written submissions on behalf of Dundee City Council, Clackmannanshire Council and Scottish Borders Council
Hearing date: 16 November 2016
Judgment Approved This judgment was handed down in open court
Sir James Munby, President of the Family Division:
I have before me preliminary points in a number of cases which have been listed for the purpose of resolving various questions which, it is apparent, are now coming before the courts not infrequently. They arise in the context of applications for adoption, by prospective adoptive parents who live in England, of various children, living in England with their prospective adoptive parents, in relation to each of whom a Scottish Sheriff has made a permanence order with authority to adopt under sections 80 and 83 of the Adoption and Children (Scotland) Act 2007. Put very shortly, and I shall need to elaborate this in due course, the questions are: first, whether the English court needs to obtain the consent of the natural parent(s) before making an adoption order, and, secondly, whether the natural parents should be joined as parties to or notified of the adoption proceedings in relation to their child(ren).
The English legislation
Before proceeding any further I need to set out the relevant English legislation. I start with the Adoption and Children Act 2002.
Section 105(2) of the 2002 Act, as amended by The Adoption and Children (Scotland) Act 2007 (Consequential Modifications) Order 2011, SI 2011/1740, provides that:
"A Scottish permanence order which includes provision granting authority for the child to be adopted has the same effect in England and Wales as it has in Scotland, but as if references to the parental responsibilities and the parental rights in relation to a child were to parental responsibility for the child."
Section 105(5) contains the same definition of "Scottish permanence order" as section 47(10) of the 2002 Act (see below).
There is no doubt that the English family court has, in principle, jurisdiction to make adoption orders in this situation: Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112, [2016] 2 WLR 713, paras 76, 90–92. The specific power is that contained in section 47(6)(a) of the 2002 Act, as amended by the 2011 Order.
So far as material for present purposes, section 47 provides as follows:
"Conditions for making adoption orders
(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).
(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied —
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) that the parent's or guardian's consent should be dispensed with.
(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.
(4) The second condition is that —
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) either —
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
(6) The third condition is that the child —
(a) is the subject of a Scottish permanence order which includes provision granting authority for the child to be adopted, or
(b) is free for adoption by virtue of an order made under Article 17( 1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S. I. 1987/2203 (N.I. 22)).
(7) The court cannot give leave under subsection ( 3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.
…
(10) In this section, "Scottish permanence order" means a permanence order under section 80 of the Adoption and Children (Scotland) Act 2007 (asp 4) (including a deemed permanence order having effect by virtue of article 13(1), 14(2), 17( 1) or 19(2) of the Adoption and Children (Scotland) Act 2007 (Commencement No. 4, Transitional and Savings Provisions) Order 2009 ( S.S.I. 2009/267))."
It should be noted that in section 47, as originally enacted, (a) there was no sub-section (10) and (b) sub-section (6) read as follows:
"The third condition is that the child is free for adoption by virtue of an order made —
(a) in Scotland, under section 18 of the Adoption (Scotland) Act 1978 (c. 28), or
(b) in Northern Ireland, under Article 17( 1) or 18(1) of the Adoption (Northern Ireland) Order 1987 (S.I. 1987/2203 (N.I. 22))."
One of the effects of the enactment of the 2002 Act was, of course, to remove the power of the courts of England and Wales to make a freeing order under section 18 of the Adoption Act 1976. Transitional provisions set out in Schedule 4, para 7, to the 2002 Act provided, so far as material, as follows:
"(1) Nothing in this Act affects any order made under section 18 of the Adoption Act 1976 (c. 36) and —
(a) sections 19 to 21 of that Act are to continue to have effect in relation to such an order, and
…
(3) Where a child is free for adoption by virtue of an order made under section 18 of that Act, the third condition in section 47(6) is to be treated as satisfied."
Section 52(1) of the 2002 Act provides as follows:
"The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that —
(a) the parent or guardian cannot be found or is incapable of giving consent, or
(b) the welfare of the child requires the consent to be dispensed with."
Section 52(6) of the 2002 Act defines "parent" as meaning:
"a parent having parental responsibility."
Compatibly with the requirements of section 141 of the 2002 Act, which there is no need for me to set out, FPR 14.3 provides that the automatic respondents to an application for an adoption order include "Each parent who has parental responsibility for the child unless that parent has given notice under section 20(4)(a) of the 2002 Act" and "any person in whose favour there is provision for contact," this latter expression being defined by FPR 14.1(2) and 13.1(2) as meaning "(i) contact provision contained in a child arrangements order under section 8 of the 1989 Act, or (ii) an order under section 34 of the 1989 Act." So far as material, FPR 14.3(3) and (4) provide as follows:
"(3) The court may at any time direct that … any other person or body be made a respondent to proceedings …
(4) If the court makes a direction for the addition … of a party, it may give consequential directions about —
(a) serving a copy of the application form on any new respondent;
(b) serving relevant documents on the new party; and
(c) the management of the proceedings."
See also FPR 14.8(1)(b) and (e).
Broadly speaking the questions before me are (i) what is the effect of section 47(6)(a) of the 2002 Act, (ii) whether, in particular, the effect of section 47(6)(a) is to remove the need for the English court to obtain the consent of the natural parent(s), (iii) whether, given the making of the Scottish orders, the natural parent is a "parent" within the meaning, and for the purposes, of the 2002 Act and, consequential upon the answer to those questions, (iv) whether the natural parents should be joined as parties to or notified of the adoption proceedings in relation to their child(ren).
The Scottish legislation
I need now to explain the relevant Scottish legislation. I start with the concepts of "parental responsibilities" and "parental rights", to use the Scottish terminology, and of "parental responsibility", to use the corresponding English terminology. The former are defined in sections 1 and 2 of the Children (Scotland) Act 1995.
Section 1 of the 1995 Act provides as follows:
"Parental responsibilities.
(1) Subject to section 3(1)(b) and (d) and (3) of this Act [not relevant for present purposes], a parent has in relation to his child the responsibility —
(a) to safeguard and promote the child's health, development and welfare;
(b) to provide, in a manner appropriate to the stage of development of the child —
(i) direction;
(ii) guidance,
to the child;
(c) if the child is not living with the parent, to maintain personal relations and direct contact with the child on a regular basis; and
(d) to act as the child's legal representative,
but only in so far as...
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