C v XYZ County Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Lawrence Collins,Lord Justice Thorpe |
| Judgment Date | 23 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1206 |
| Docket Number | Case No: B4/2007/2515C |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2007 |
[2007] EWCA Civ 1206
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Middlesborough County Court
HIS HONOUR JUDGE TAYLOR
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lady Justice Arden and
Lord Justice Lawrence Collins
Case No: B4/2007/2515C
Ms Eleanor Hamilton QC & Dr Gillian Kane (instructed by Messrs AB) for the Applicant
Mr Martin Todd (instructed by XYZ Legal Services) for the First Respondent
Miss Judith Rowe QC (instructed by the Messrs CD) for the Second Respondent
Hearing date: 7 November 2007
Judgement
This appeal concerns a child of a young unmarried mother who was placed for adoption at birth and the question is whether the local authority should make inquiries to see if any of the child's birth family would be suitable carers. The mother is against it. She did not tell them about her pregnancy or the birth. The father was a one-night stand. The particular features of this case are (i) a young unmarried mother; (ii) a child born as a result of a sexual encounter on one occasion with someone with whom the mother had no other relationship; (iii) a clear view by the mother that she wishes the child to be placed for adoption and (iv) the mother has never cared for the child.
The most recent primary legislation on adoption is the Adoption and Children Act 2002 (“the 2002 Act”). The relevant provisions only came into force on 30 December 2005. Before the 2002 Act, the courts made it clear that, while in general the views of a father of a newborn child should be obtained before the child was placed for adoption, they did not require the consent of the father to be obtained where the mother and father had had only a fleeting relationship. The question is whether the 2002 Act has changed the position so that, as the judge held in the court below in this case, there is now a duty to make enquiries. In his judgment dated 28 September 2007, he held:
“The local authority has no choice. They are under a duty to inform themselves of as much information about the background of the extended family as they are able to do.”
In my judgment, for the reasons given below, when a decision requires to be made about the long-term care of a child, whom a mother wishes to be adopted, there is no duty to make enquiries which it is not in the interests of the child to make, and enquiries are not in the interests of the child simply because they will provide more information about the child's background: they must genuinely further the prospect of finding a long-term carer for the child without delay. This interpretation does not violate the right to family life. The objective of finding long-term care must be the focus of making any further enquiries and that means the court has to evaluate evidence about those prospects. That did not happen in this case. The judge consequently directed himself according to the wrong principle and his exercise of discretion must be set aside. This court must exercise the discretion afresh.
The judge directed the local authority to disclose the existence and identity of the child to the extended maternal family and, if he could be identified, the putative father and any extended paternal family. The judge overruled the mother's objections in the interests of the child. The judge's order provides the disclosure to the father, “if identifiable”, but it is clear from the discussion after judgment that this phrase does not accurately record the judge's order. He intended that there should be disclosure to the father only “if identified”. It will be noted that the judge's order was about disclosure of information. What it is in substance about is whether the wider family and putative father must be given a role in questions as to E's future.
I need only say a little more about the background. The mother was 19 years old when she became pregnant. She did not realise that she was pregnant until a late stage. She kept her pregnancy a secret from her family. She lives on her own and has her own career. She does not consider that she could look after E. She did not seek medical help until she went into labour. Immediately after E was born, she made it clear that she wanted E placed for adoption. She also said that she did not think that her family could provide E with a home, giving reasons. Her parents were divorced. She had left home after a fight with her mother at the age of 17. She did not consider that she had any meaningful relationship with her father, whom she saw only occasionally. He is critical of her lifestyle. We understand that the mother has siblings but there is no evidence that they might be in a position to take on the care of E. She declined to identify E's father, although she has given some details. It is likely that he could be identified if the guardian authority made independent enquiries. E is now over four months old and naturally starting to form bonds with the foster parents who are caring for her. Her best interests require that she should as soon as practicable, consistently with the 2002 Act, start to live with a family who can commit to look after her throughout her childhood and with whom she can form lasting relationships.
As Thorpe LJ explained in his judgment, the local authority's response to this situation was on 16 July 2007 to apply for a care order under the Children Act 1989 (“the 1989 Act”). I agree with him that the application should have been made under the Adoption Act 2002 for the reasons he gives. But this does not affect the issues of principle to which this case gives rise.
After the judge made his order, there was a misunderstanding as a result of which the children's social care section of the local authority wrote to the mother's parents seeking an interview but not giving the reason. The parents discovered that the mother had given birth to E and have contacted the local authority offering to assist in resolving the situation. The parents have not taken part in these proceedings and have not been made a party to them.
Relevant provisions of the 2002 Act
I am now going to set out what the material provisions of the 2002 Act say without at this stage making any points about their interpretation. The 2002 Act puts the interests of the child at the forefront of decision-making about a child who is to be adopted, and it sets out a “welfare checklist” which any court or adoption agency making a decision about a child adoption must work through. This welfare checklist is modelled on the welfare checklist in the Children Act 1989 (“the 1989 Act”), but it is adapted to the particular circumstances of adoption. Thus s 1 of the 2002 Act provides:
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, “coming to a decision relating to the adoption of a child”, in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to...
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