Dispensing with Parental Consent
| Author | Nasreen Pearce/Richard Budworth |
| Pages | 65-77 |
Chapter 6
Dispensing with Parental Consent
GROUNDS FOR DISPENSING WITH CONSENT
6.1 ACA 2002, s 52 provides for only two grounds for dispensing with parental consent of a child being placed for adoption or to the making of an adoption order. These are that:
(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005 (MCA 2005)) to give consent; or
(b) the welfare of the child requires the consent to be dispensed with.
When will it be necessary to apply for dispensation of parental consent?
6.2 The circumstances when there will be a need to consider making an application for dispensing with parental consent may arise at various stages in the adoption process:
(a) initially, when parental consent has been given but consent is subsequently withdrawn, and it is considered necessary to apply for a placement order;
(b) where the local authority’s care plan for the child to be adopted is opposed and an application is made for a placement order;
(c) where consent having been given or placement order made the parent applies for and is granted permission to oppose the making of the order;
(d) in non-agency cases (i.e. by relatives) where the application is opposed.
How is the application for dispensation made?
6.3 The application for parental consent must be made by the applicant within the application form if it is known that the application for a placement order or to the adoption is opposed. If consent having been given it is later withdrawn after the proceedings are issued, it should be made by filing a written request. In both
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instances, the request must set out the reasons for the request and a written statement of facts must be filed setting out a summary of the history of the case and any other facts to satisfy the court of the grounds for dispensation (FPR 2010, r 14.9(2)).
What criteria will the court apply in determining dispensing with consent?
6.4 Although the ACA 2002 in s 1 makes it clear that whenever a court makes a decision relating to the adoption of a child, the child’s welfare is the paramount consideration and hence there is a single consideration, the decision relating to dispensation of consent involves a two-stage process. The court will consider whether adoption is in the best interests of the child, and if so, has a ground for dispensing with consent made out (see para 6.1). In determining the welfare issue the court is required to take into account the factors set out in ACA 2002, s 1(3) and (4). The protection of rights under the European Convention and balancing the respective rights of the parents and the child and determining whether any infringement of those rights is proportionate to safeguard the child’s interests will also be relevant, but it is the child’s welfare that will trump the exercise. Dispensation of consent per se is not incompatible with Convention rights (Re CB (A Child) (No 2) (Adoption Proceedings: Vienna Convention) [2015] EWCA Civ 888).
PARENT OR GUARDIAN CANNOT BE FOUND
6.5 Much of the case law under the Adoption Act 1976 provides guidance on how this can be established. In Re F (R) (An Infant) [1969] 3 WLR 853, the Court of Appeal stated that the words ‘cannot be found’, means ‘cannot be found by taking all reasonable steps’ to try to contact the parent. Hence every effort should be made to locate the parent by all means available, including through relatives of the missing parent. In Re S (Adoption) [1999] 2 FLR 374, applying the test in Re F, the court held that the proper approach to construing the words ‘cannot be found’ is ‘all reasonable steps must be taken, and even if only one reasonable step is omitted, one cannot say that the person cannot be found’. However, in Re R (Adoption) [1967] 1 WLR 34, the court held that if there are no ‘practical means’ of communicating with the parent, the person cannot be found. The difference in these two interpretations was reconciled by Charles J in Re A (Adoption of a Russian Child) [2000] 1 FLR 539, who stated that what is ‘reasonable’ and what is practical will often overlay, and the question the court should ask is whether there are any reasonable steps that can now be taken to inform the mother of the proposed adoption and to seek her properly informed views. In asking that question, the court should consider whether any proposed or possible step is
practical and if it would not be then it would not be a reasonable step. These days, where social media plays such a significant part in many people’s lives, attempts should be made through this means to locate a missing parent. The cases of Re A and Re R can also be distinguished from Re F (R) and Re S on the facts. Re A and Re R both involved the adoption of a foreign child, and in both there was evidence of risk: in Re R the risk was of endangering life or causing embarrassment; in Re A the risk was to the applicants and third parties. In Re A the mother had given up her child for adoption, had consented to the adoption and had taken no part in the Russian proceedings, whereas in Re F (R) and Re S the mother had not given up her child for adoption and had had no inkling that the child might be adopted, nor was there any evidence of any risk to the applicants or the natural parent in making inquiries. In B (An Infant) [1958] 1 QB 12, where the applicants had failed to serve the mother with notice of the proceedings notwithstanding the fact that they were aware of her address, the adoption order was set aside.
6.6 It is thus essential to take all practical and reasonable steps to locate the person whose consent is required. It is the duty of legal advisers to ensure that the applicants are made aware of the serious consequences which may follow, should the parent later appear and seek to have the order set aside. The usual avenues of inquiry are to contact members of the person’s extended family and friends, and to consult the Electoral Register, the Council Tax Register and relevant government or local government departments. Where the enquiry relates to a person who is resident in England, an application may be made to the court for an order addressed to HM Revenue & Customs, directing the disclosure of the person’s whereabouts and last known address to the court. Communication can then be made with the person through the court. In the digital world it will be advisable to seek the court’s permission to use social media such as Facebook, Instagram, WhatsApp, etc to locate the parent. See for example West Sussex County Council v Jade Alma [2016] EWHC 2009 (Fam), where a public campaign was launched, and the national press and television channels were used to reach the parents.
LACKS CAPACITY TO GIVE CONSENT WITHIN THE
MEANING OF THE MCA 2005
Incapacity within the meaning of the MCA 2005
6.7 MCA 2005, s 2(1) provides that:
a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of impairment of, or a disturbance in the functioning of, the mind or brain.
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