Kirsty Louise Seddon v Oldham Metropolitan Borough Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 14 September 2015 |
| Neutral Citation | [2015] EWHC 2609 (Fam) |
| Docket Number | Case No: FD14P00786 |
| Court | Family Division |
| Date | 14 September 2015 |
[2015] EWHC 2609 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
AND IN THE MATTER OF CHILD A
The Honourable Mr Justice Peter Jackson
Case No: FD14P00786
Kirsty Seddon appeared in person with a McKenzie Friend
Lorraine Cavanagh (instructed by Oldham Borough Council) for the Respondent
Hearing date: 19 June 2015
Judgment date: 14 September 2015
Summary
This case concerns the rights of birth parents and children after adoption. It raises these questions:
(1) Do rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) survive the making of an adoption order?
(2) Did the coming into force in April 2014 of s. 51A Adoption and Children Act 2002 (ACA 2002), which allows the court to make a post-adoption contact order, create or maintain an Art. 8 right as between a birth parent and an adopted child?
(3) Is s. 51A(4) ACA 2002, which requires a former parent to obtain the permission of the court before applying for contact with an adopted child, incompatible with the ECHR?
(4) Does a post-adoption letterbox service run by a public body give rise to Art. 8 rights as between a birth parent and an adopted child?
For the reasons set out below, I would answer these questions as follows:
(1) The making of an adoption order always brings pre-existing Art. 8 rights as between a birth parent and an adopted child to an end. Those rights arose from and co-existed with the parent-child relationship, which was extinguished by adoption.
( 2) s. 51A ACA 2002 does not create or maintain an Art. 8 right as between a birth parent and an adopted child.
( 3) s. 52A(4) ACA 2002 is not incompatible with the ECHR.
(4) A public body running a post-adoption letterbox service is obliged under Art. 8 to respect correspondence between a birth parent and an adopted child and adopters, the obligation arising from the nature of the correspondence and not from the former parent-child relationship.
The proceedings
The proceedings are brought by Kirsty Seddon against Oldham Metropolitan Borough Council (the Council) arising out of the adoption in 2010 of a child (A), who was born to her in 2008.
Ms Seddon has represented herself, assisted by her McKenzie Friend Mr Jerry Lonsdale. The Council is represented by Ms Lorraine Cavanagh.
Ms Seddon seeks:
(1) Declarations under the Human Rights Act 1998 ( HRA 1998):
(a) That under Art. 8 ECHR she and A have a right to respect for their private and family life and correspondence, notwithstanding the making of the adoption order.
(b) That the Council is a public body exercising a public function within the meaning of ss. 6 and 7 HRA 1998 and can be held accountable when running its post-adoption letterbox service.
(c) That the Council acted unlawfully on one occasion by redacting and refusing to forward her correspondence via its letterbox service, and should be replaced by another service provider.
(d) That s. 51A(4) ACA 2002 is incompatible with the ECHR.
(2) Leave to issue an application for contact under s.51A ACA 2002.
My decision in relation to these applications is that:
(1) Ms Seddon's claims for declarations are dismissed. Instead I declare that:
(a) All pre-existing Art. 8 rights between Ms Seddon and A were extinguished by A's adoption.
(b) In running its post-adoption contact service, the Council, as it now concedes, is performing a public function.
(c) In redacting or not forwarding correspondence sent via its letterbox service on one occasion the Council's actions were lawful.
(2) Ms Seddon's application for permission to apply for contact is dismissed as being totally without merit.
The facts
I extract these from the comprehensive document agreed between the parties.
Background
Ms Seddon is now 27 years old. At the age of six, she was placed in care and lived in no fewer than nine foster homes in the following ten years.
In late 2008, when she was 20 years old, Ms Seddon gave birth to A. A's father is Ms Seddon's sister's partner, by whom he had two children. He has played no part in A's life, though he and Ms Seddon's sister, A's maternal aunt, were assessed as possible carers at one stage.
During A's early days, Ms Seddon was not coping and the Council, which had been involved since early in the pregnancy, intervened. A core assessment was carried out and in February 2009, Ms Seddon and A were placed in a residential assessment unit. The placement was unfortunately not a success and ended after fifteen weeks.
The care and adoption proceedings
In May 2009, the Council brought care proceedings.
In June 2009, A was placed with foster parents within the framework of the Concurrent Planning scheme of the Goodman Project, part of the Manchester Adoption Society. Under this programme, if A could not return to her mother she would remain with her carers, who would become her adopters.
The final hearing of the Council's applications took place before HHJ Allweis at Manchester in February 2010, when he made care and placement orders. When doing so, he said:
99. … A, as every child, is entitled to a family life in which all her needs will be met. I am afraid mother cannot meet those in the next few months, and it is too long to wait in the forlorn hope that perhaps things will change through a process of further work, notwithstanding the assessment processes of the last twelve months, or through some attempt to address the issues of her past.
100. So I am satisfied that although it is very much a draconian step, it is an overriding necessity in the best interests of A that the court should take this step. Having in effect rehearsed the welfare checklist in the course of the judgment which I have given, essentially mother is not capable, and will not be capable in anything remotely approaching a child of 14 or 15 months of age's timescale, of meeting A's emotional and holistic needs. So with profound sadness, but without hesitation, I approve the care plan.
As to contact after adoption, the judge said this:
101. … The Guardian in her evidence did not totally discount direct contact but said it is very dependent on mother's ability to accept the placement and that she is not the parent. … I think Miss Hogan [the social worker] got it right eventually when, leaving aside the issue of indirect contact, which is not really an issue, she looked at the question of possible direct contact. She said this: "The carers are open to indirect contact twice a year. They are open to the possibility of direct contact but would like to hear about the outcome of the professionals' assessment and make their own decision. They are concerned how they would protect A with her unusual name", and of course they now have the modern day curse of social networking sites and the Internet which sometimes get in the way of preservation of confidentiality of placement.
102. That sadly, not just as an issue in this case but as an aspect of a new Local Authority policy which I think is being replicated across the country, in the experience of this court, has given rise to angst amongst adoption professionals. It means the Local Authority has reluctantly concluded that it would not be appropriate to have the conventional indirect contact insofar as that might include photographs. So on the issue of direct contact, the carers have reservations. They have not ruled it out. Miss Hogan herself would have some concerns. Mother said if it was only going to be once a year, what is the point. The real problem is that mother would have to accept the placement, which, as Miss Hogan rightly said in the context of somebody who was emotionally and bitterly opposed to the plan for adoption, would be a big ask.
103. I think the short answer is that today is not a day for decisions in that regard. The carers will have a short term and no doubt, as the dust settles, a long term view. Mother's response to this judgment and to the possibility that she might have to work with professionals if there were to be direct contact would be an important factor. I am pessimistic that it is achievable, given mother's views, but I may be wrong and time will tell. I think that is for the future, although I think the Local Authority at some stage will have to file a very short amended or revised care plan just dealing with the issue of contact, and how it will pan out is something for the future in the light of the carers' views, the mother's perceptions and views, and trying to get it right and work out what is in A's best interests.
At that stage, the care plan was for post-adoption contact to consist of an exchange of letters twice a year. This was subsequently reduced to once a year in the light of Ms Seddon's sustained opposition to the adoption.
In March 2010, face-to-face contact between Ms Seddon and A took place for the last time.
In May 2010, at a hearing that Ms Seddon did not attend, HHJ Allweis made an adoption order in favour of A's carers, who thereby became her parents. In relation to contact, the judge made no order. He said this:
35. The issue of contact of course has had to be considered. I return to the judgment I gave in February. The guardian had said that post-adoption direct contact (and I add that the plan is for indirect contact) would be very dependent on the mother's ability to accept the placement and that she is not the parent. I am bound to say that the mother's actions and attitudes since judgment emphasise that the one thing she is not doing is accepting the placement and that she is not going to parent. She cannot accept it. That is a tragedy in the case. However distressing the...
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