Down Lisburn Health and Social Services Trust v H
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD CARSWELL,BARONESS HALE OF RICHMOND,LORD WALKER OF GESTINGTHORPE,LORD RODGER OF EARLSFERRY |
| Judgment Date | 12 July 2006 |
| Neutral Citation | [2006] UKHL 36 |
| Date | 12 July 2006 |
| Court | House of Lords |
[2006] UKHL 36
HOUSE OF LORDS
Appellate Committee
Lord Nicholls of Birkenhead
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Carswell
and another (AP)
and another (AP)
Appellants:
For H
John O'Hara QC
Nuala Quinn
(Instructed by Sheridan & Co)
For R
Ken McMahon QC
Desmond Hutton
(Instructed by Sheridan & Co)
Respondents:
For Down Lisburn
Frank O'Donoghue QC
Siobhan Keegan
(Instructed by Brangam & Bagnall)
For Guardian ad Litem
Michael Long QC
Claire Collins
(Instructed by Trevor Smyth & Co)
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Carswell. For the reasons he gives, with which I agree, I would dismiss this appeal.
My Lords,
I have had the advantage of considering in draft the speech which is to be delivered by my noble and learned friend, Lord Carswell. I agree with it and, for the reasons which he gives, I too would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Carswell. I agree with it, and for the reasons which he gives I would dismiss this appeal. I add a few words of my own out of respect for the dissenting opinion of my noble and learned friend Baroness Hale of Richmond.
Baroness Hale's opinion contains, if I may respectfully say so, some valuable insights as to the advantages and disadvantages of the procedure of freeing a child for adoption. These considerations, and Baroness Hale's comments on the practicalities of the procedure, may well be taken into account in the review of adoption law in Northern Ireland which is to take place soon. But I am not persuaded that the trial judge, approaching the matter in the context of society in Northern Ireland, made such an error as would entitle an appellate court, applying the principles in G v G [1985] 1 WLR 647, to reverse his decision.
In any case concerning children an appellate court must (as Lord Fraser of Tullybelton recognised in G v G at p 652A) bear in mind the potentially unsettling effect of prolonged litigation. I fear that reversal of the judge's decision in this case would be bound to be seen as a victory by the birth parents. It would be surprising if, after what they regarded as a victory, they were able to put aside the strong feelings which have actuated them up to now. I do not of course base my conclusion on that point, but it confirms my view that the appeal should be dismissed.
My Lords,
The issue before us is the use of the procedure to free a child for adoption and to dispense with parental consent in a case where some continued contact may well be in the child's best interests. Freeing for adoption was introduced in England and Wales under the Adoption Act 1976, following the Report of the Departmental Committee on the Adoption of Children chaired by Sir William Houghton in 1972 (Cmnd 5107). At that time, the conventional picture of adoption was still prevalent: it was the consensual if reluctant placement of a baby, usually born to an unmarried mother, with strangers who would step into the shoes of the birth family, making a clean break with the past. Yet even then times were changing. Fewer and fewer babies were being surrendered for adoption. The use of adoption for older children who might otherwise spend their childhoods in the care of local authorities was increasing. Concern that children should not be left without a permanent home led social workers to strive to achieve 'permanency' – either by reuniting them with their own families or by finding them a new 'family for life'. These adoptions could bring great benefits for the child but they also brought a new set of challenges for social work and for the law. The children were older. They had a history. This might well include damaging experiences from their past. But it might also include significant relationships with members of their birth family. The use of compulsory adoption, dispensing with the need for parental agreement, was increasing. But the fact that these children had a history also meant that their best interests might require that any significant links with the birth family be preserved in a more 'open' form of adoption. It was increasingly recognised that there could be more ways than one of achieving the desired permanency for the child. (The recent introduction of special guardianship in England and Wales is a further step in the same direction.) Research (see, for example, J Triseliotis, In Search of Origins, Routledge and Kegan Paul, 1973) had also shown how adopted people often felt the need to discover more about their origins when they grew up.
Interest began to develop in preserving some limited contact between an adopted child and her birth family. This might serve two rather different functions. One, which can often be accomplished by life story books and occasional letters and cards, is to help the adopted child develop her sense of identity and self as she grows up. Another, which may indicate the occasional face to face meeting, is to preserve significant attachments, prevent the feelings of loss and rejection which the child who remembers her birth family may feel if she is completely cut off from her past and help her not to worry about the family she has left behind, including siblings (see Department of Health, Adoption Now. Messages from Research, 1999). This form of contact requires the birth parents to be able to put their own feelings of grief and anger aside so that they do not use their contact to undermine the adoptive placement. But if they can do this it can be a great help to the child in making the transition to her new 'family for life'.
Hence the case for some form of post adoption contact may be strongest when the adoption itself is particularly contentious. The parents may rightly feel that they have something to offer the child even if she can no longer live with them. The problem for the court is to enable all the competing issues to be properly tried and resolved. This is not easily done within the framework of freeing for adoption because the parents' attitude to adoption may be judged without prospective adopters having been identified. Since the implementation of the Adoption and Children Act 2002 in December last year, freeing for adoption is no longer available in England and Wales. But it remains a possibility in Northern Ireland. This case provides a good illustration both of its advantages and of its disadvantages.
There were of course many matters in dispute between the Trust and the parents, who remain deeply opposed to adoption and would like their child to be returned to them eventually. But the issue of principle for us is put this way in the respondent's case:
"In circumstances where there is a significant attachment between a child and her birth parents, where post adoption contact is in the best interests of the child, but it cannot be established that there will be post adoption contact, is the court required to take those issues into account when deciding, for the purposes of making an order under article 18 of the Adoption (Northern Ireland) Order 1987:
(a) whether adoption is in the best interests of the child; and
(b) whether the parents are unreasonably withholding their consent to their child being adopted?"
The factual history
We are concerned with a little girl whom I shall call Nina. She was born on 19 April 2002, the fourth child of her mother, whom I shall call Maureen. The mother has three older children, Helen aged 16, Peter aged 14, and Tanya aged 10. Nina is, however, her first child with the father, whom I shall call Bernard. He is registered as Nina's father and thus shares parental responsibility for her under the terms of the Children (Northern Ireland) Order 1995, article 7(1)(a) (in this respect Northern Irish law was ahead of English law, for the equivalent provision in England and Wales only applies to fathers registered on or after 1 December 2003).
The mother has a long history of problems with alcohol, although she has also had periods of stability and sobriety. When not abusing alcohol she is able to look after her children properly and to establish good relationships with them. Unfortunately, because of her problems, they have all suffered periods of separation from her, including periods in care. The older three were all the subject of care orders when Nina was born. According to Professor Triseliotis, the renowned emeritus Professor of Social Work in the University of Edinburgh, "the two eldest [children] present complex problems and their future well-being is very much in doubt. [Tanya] has been somewhat spared by the simple explanation that she is younger and has not had so many moves, but her long term welfare is also far from certain."
Because of the mother's history and abuse of alcohol during the pregnancy, Nina was placed in foster care when she left hospital soon after the birth. However, she was reunited with her parents when they were all admitted to a residential assessment centre in June 2002. The assessment went so well that all three returned home to live together in August 2002 and the Trust did not pursue its application for a care order. Later, the three older children also returned home. Unfortunately, the mother relapsed into alcohol abuse in early 2003 and the father was unable to take responsibility for the children while she was unfit to do so. A crisis arose in June 2003, and the children were once again removed from home. During the latter part of 2003, the...
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