Re O (Adoption: Withholding Agreement)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,JUDGE CLARK,LORD JUSTICE MANTELL,LORD JUSTICE BUXTON |
| Judgment Date | 21 August 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0821-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CCFMF 98/1072/2 |
| Date | 21 August 1998 |
[1998] EWCA Civ J0821-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
(HIS HONOUR JUDGE PAUL CLARK)
Royal Courts of Justice
Strand
London WC2
Lord Justice Swinton Thomas
Lord Justice Mantell
Lord Justice Buxton
CCFMF 98/1072/2
In the Matter of
MR M EVERALL QC and MISS V MAYER (Instructed by Messrs Wilford Monro, London, SW9 6DE) appeared on behalf of the Appellant.
MR A MCFARLANE QC and MISS F JUDD (Instructed by The Legal Department, Reading Borough Council) appeared on behalf of the Respondent/Local Authority.
MISS B SLOMNICKA (Instructed by Messrs Griffiths Robertson, Reading, RG1 1TZ) appeared on behalf of the Guardian ad Litem.
Friday 21 August 1998
This is an appeal from an order made by His Honour Judge Paul Clark in the Oxford County Court on 16 July 1998. The subject matter of the dispute and the order is a small boy, S, who was born on 2 January 1997 and is now 19 months old, 18 months old as at the date of the judge's order. Bearing in mind his age, we will make an order that this case should be reported under initials only.
The relevant part of the judge's order is:
"1. The [father], GP, do have parental responsibility for the child, SCO.
2. The Court is satisfied that:
(i) The mother, AO, agrees to the making of the making of the Adoption Order.
(ii) the agreement of the Father should be dispensed with on the ground that he is withholding his agreement unreasonably.
(iii) the Adopters will allow the Father and [Miss N] to have direct contact with the child, not less than twice a year, any further contact to be agreed between the Adopters and the Father and Miss N."
The judge made his order in the context of the finding that an adoption order in favour of the prospective adopters, Mr and Mrs A, was in the best interest of S. S's father, Mr P, appeals against this order, submitting that the judge was wrong not to make a residence order in his favour and was wrong to say that an adoption order was in S's best interests and wrong in finding that the father was withholding his agreement to an adoption order unreasonably.
This was, and is, undoubtedly an anxious and difficult case for the judge and for this court. The judge was faced with, on one side, impeccable father who, for reasons for which he has no responsibility, has had no contact with his child, and his fiancee who propose to get married next October and, on the other side, impeccable and loving proposed adopters with whom S has lived since 7 March 1997. They clearly love him deeply and he is now securely bonded with them. Furthermore, the judge was faced, as we are, with conflicting evidence given by experts as to where S's best interests lie.
S's parents were both born in Scotland. The father is one a close-knit and happy family living in Scotland. The parents had a relationship lasting about three years leading to the birth of S. They separated in the Spring of 1996. The mother, Miss O, was resolved from an early stage of her pregnancy that the expected child should be adopted. She had, of course, already separated from the father and she did not tell him that she was pregnant. He knew nothing of the subsequent birth until, by an order of the Oxford County Court he was informed of the proposed adoption proceedings. The mother has a job as a Nanny and the father has a good job with an airline. His girlfriend is also employed. Mr A, the proposed adoptive father, also has an excellent job and he and his wife already have an adopted child, K, who is aged 7. She is devoted to S and regards him as her little brother. All the experts who have reported in this case, and there is a reasonably substantial number, were in agreement that Mr and Mrs A were ideal adoptive parents, possibly as ideal as one could find and are devoted to S.
It is a crucial fact in this case that S has lived with Mr and Mrs A since he was two months old and has formed very strong bonds with them. The judge had to resolve, with the assistance of the expert evidence and the lay evidence, the primary issues as to whether removing S now from the only carers that he has known and placing him in the care of his father and the father's fiancee, whom he does not know but are his blood family, was the right course to take in the best interests of the child.
The father's case, put at its simplest, is that he is the child's blood father, the mother does not wish to care for him and that he and his future wife are the natural and the best people to care for S. He is, most naturally, deeply affronted that he was not told about the existence of his son and that the failure to tell him, by reason of the time that elapsed, has prejudiced his claim to look after his child. Although he is undoubtedly committed to looking after S, it is a fact that has to be faced that he and his fiancee are, again through no fault of their own, untried as parents and would be faced with caring for a small boy who, on any basis, does not know them and would be deeply upset at the concept of being removed from the only family that he knows, however carefully such a move was planned.
I turn to the judge's judgment. The judge set out the issues he had to resolve in this way:
"In the event it was agreed that I must decide:—
(a) where S should live
(b) whether the Father should have Parental Responsibility
(c) whether S should be adopted
There is no issue in this case that the As are impeccable prospective adopters. Similarly I am satisfied that if an order is made, they will be responsible about keeping S informed of his real parentage as he grow up, and also in facilitating indirect contact with his father, and direct contact twice a year. All in all, and their evidence to me firmly supported this, they are ideal adopters, in whose care one might expect S to flourish. Similarly, although this can be of little direct relevance to my decision, they will be devastated if S were removed from them, and their adopted daughter K might well have uncertainties about her own future in the general distress that would follow. I also accept the sincerity of their evidence that in the event of their application failing they could not lessen the consequent damage to S in a handover by taking all the best steps to reduce the damage; in the event I think they are a couple of such quality that they would probably do more than at present they can consider possible."
The judge then continued by making trenchant criticisms of the Local Authority's failure to inform the father of the proceedings and it is not necessary for me to make any further reference to those factors in the judgment.
The judge then turned to the issue as to residence and the evidence that he had heard. He summarised the evidence which he considered relevant on pages 6–10 of his judgment. It is not necessary for me to recite them. He then said:
"In this very unusual case I have reserved judgment, pondered and reconsidered the evidence and submissions and come to the firm conclusion that S should continue to reside with the As. I bear in mind that Lord Templeman's much quoted words in Re KD [1988] FLR at 141—I have also to decide to what extent the welfare of the child requires that he should be protected from 'harm caused by the resumption of parental care after separation has broken the parental tie'. I have to be aware also of the dangers of slipping into social engineering, and to ask myself 'does the welfare of the child positively demand the displacement of the parental right'? I must also have at the forefront of my mind the Section 1 criteria of the Children Act."
The judge then turned to the issue as to whether the father should be granted a parental responsibility order which would make enable him to participate in the proceedings. The judge said that he was satisfied that the father should be granted parental responsibility and gave his reasons for reaching that conclusion. The respondents to this appeal cross-appeal against that part of the judge's order.
The judge then turned to consider the issue as to whether the right course was that there should be an adoption order in favour of Mr and Mrs A or whether there should be a residence order in their favour. He judge said:
"In the witness box Dr Cameron volunteered that he would 'come down in favour of residence rather than an adoption—to show a proper recognition of the Father's commitment'.
There is little issue in this case that if S continues to live with the As, there should be indirect contact, plus direct contact twice a year (the As have come round to that), maybe increasing in the distant future. Dr Cameron agreed that he was not absolutely sure, and perhaps he was just trying to show some kindness to the Father because of his decision against the child residing with [the father]. 'To show proper recognition of the Father's commitment' does not seem to me to be an important matter in my decision, however otherwise laudable a concept.
In effect there would be little difference between the 2 orders as far as contact is concerned, but one must not overlook the need for confidence in the As to secure S's stability, and the greater risk of the Mother, AO, seeking contact or even residence. If S is to live with the As, I have come to the conclusion that his welfare would be better safeguarded and promoted by an Adoption Order than by a Residence Order. I bear in mind the essential differences between Residence and Adoption Orders, in particular as set out recently by the Court of Appeal in Re M [1998] 1 FLR 570.
I consider the duty of the Court under Section 6 of the Adoption Act 1976. I have the Mother's...
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