Re B (A Child) (Sole Adoption by Unmarried Father)
| Jurisdiction | UK Non-devolved |
| Judge | LORD RODGER OF EARLSFERRY,LORD NICHOLLS OF BIRKENHEAD,LORD HOFFMANN,LORD MILLETT,LORD MACKAY OF CLASHFERN |
| Judgment Date | 17 December 2001 |
| Neutral Citation | [2001] UKHL 70 |
| Court | House of Lords |
| Year | 2001 |
| Date | 2002 |
[2001] UKHL 70
Lord Nicholls of Birkenhead
Lord Mackay of Clashfern
Lord Hoffmann
Lord Millett
Lord Rodger of Earlsferry
HOUSE OF LORDS
My Lords,
This appeal concerns an adoption order, sought by one natural parent (the father) with the consent of the other (the mother). The child is a girl, now three years old. Bracewell J made the adoption order: see [2000] 2 FLR 717. The Court of Appeal, comprising Dame Elizabeth Butler-Sloss P and Potter and Hale LJJ, reversed her decision: see [2001] 1 FLR 589. The father has appealed to your Lordships' House. At no stage has the mother taken any part in the proceedings.
The story
From August 1997 the mother and the father, neither of whom is married, had a sexual relationship. This ended in April 1998. Early in 1998 the mother became pregnant, although she did not realise this until some months later. The child ('A') was born on 19 October 1998. The mother was then aged 28. Without looking at her baby the mother told the hospital staff that she wanted to have the child adopted. This was the mother's second child. Her first child, also a daughter, was born in 1993. On that occasion, and in accordance with the mother's wishes, the child had been adopted.
So A, when four days old, was placed with foster parents with a view to adoption. Since the birth the mother has never met A nor, save at a distance, seen her. The father, then aged 25, was not aware of the mother's pregnancy or of A's birth. Purely by chance the local social services authority learned of the father's whereabouts. They contacted him, and he quickly expressed his desire to look after A. The mother then co-operated with the father in making arrangements for A's care. On 27 November 1998 they registered A's birth together, with the father's surname. On 7 December 1998 they entered into a parental responsibility agreement, whereby the father was to have parental responsibility as well as the mother. On 19 December 1998 A was placed with her father, and he has looked after her ever since. He gave up paid employment in order to do so. Child A is thriving. The issue in the case is not whether the father should continue to care for A as a single natural parent. That is not in doubt. The issue is whether he should become her sole adoptive parent.
The adoption proceedings
The father made his adoption application to his local Family Proceedings Court on 26 April 1999. His understanding was that the mother was willing to agree. Subsequently her views wavered. The proceedings were transferred to the High Court because of their unusual nature.
The father is seeking an adoption order primarily because he is anxious to secure A's future in his sole care. He feels insecure, and believes he will feel more secure knowing that the mother's parental responsibility for A has been removed. This can only be achieved by an adoption order. The mother has said repeatedly she does not wish to play any part in A's life. But the father is concerned that, without an adoption order, it will remain possible in future years for the mother to pose a threat to A's continued placement with him. He is concerned that the mother may marry and, with her new husband, ask to have A to live with her. The court might look favourably upon such an application. His vulnerability to an attempt by the mother to reclaim A is something which has caused him great anxiety. He is adamant in his wish for an adoption order, although whatever order is made will not affect the strength of his commitment to A. He does not, in principle, exclude the possibility of future contact by the mother with A, provided the placement with him is secure. He is willing to adhere to his arrangement with the mother to provide an annual progress report and photograph. The mother has a similar arrangement with the adoptive parents of her elder daughter.
In his report to the court the Official Solicitor, acting as A's guardian, opposed the application. The sole consequence of an adoption order would be to end the mother's relationship with A. This was not an order which could be said to safeguard and promote A's welfare. There was nothing in the history of the case to suggest that the mother would be likely to seek to disrupt the security of A's placement with her father. But any attempt by her to do so would not necessarily be to A's disadvantage. Further, the court has to be satisfied, before making an adoption order, that there is some reason justifying the exclusion of the mother, as required by section 15(3) of the Adoption Act 1976. There was no sufficient reason in this case. A's placement with her father should be secured by a residence order, suitable prohibited steps orders, and an order requiring the mother to obtain permission from the court before making any application for an order under section 8 of the Children Act 1989.
After this report had been prepared the Official Solicitor was able to meet the mother. Her response to the Official Solicitor's report was that, although she considered the application was premature, she could understand the father's reasons and was not going to stand in his way. She made clear she would never seek to interfere with the lives of A and her father. She was not seeking direct contact with A. While she could not say this would always be her position, as a first step she would obtain legal advice. She would not simply turn up on the father's doorstep. She wished to maintain indirect contact with a yearly photograph and progress report. She then signed, in the presence of the Official Solicitor, the prescribed form of consent to the making of an adoption order. That was on 20 June 2000.
The decision of the Judge
The application proceeded before Bracewell J on 29 June 2000 on the basis of affidavit evidence and reports. There was no oral evidence. The judge concluded that the welfare of A 'demands' there should be an adoption order 'in order to promote her welfare throughout her childhood'. To comply with the requirements of section 15(3) of the Adoption Act 1976 the circumstances must be exceptional. That was so here. The reasons for the exclusion of the mother were that she had rejected A from birth and played no part in her care or upbringing, and she had consented to the adoption and wished to play no part in A's life in the future, other than to have indirect contact. The judge said:
'This is not a case in which the mother has hesitated and weighed in the balance what she can provide for the child and what the father can provide. She has no interest in having any direct contact with A or participating in her upbringing. She is an intelligent, reflective woman, who has been able to consider the position and has reached a reasoned position of not wanting to play a part in A's life.'
The decision of the Court of Appeal
With the leave of the judge, the Official Solicitor appealed from her decision. Hale LJ gave the leading judgment in the Court of Appeal. She considered that Bracewell J had misdirected herself on the requirements of section 15(3)(b) of the Adoption Act 1976. Section 15(3), as amended by the Human Fertilisation and Embryology Act 1990, section 49(5), Schedule 4, paragraph 4, provides:
'An adoption order shall not be made on the application of the mother or father of the child alone unless the court is satisfied that-
(a)the other natural parent is dead or cannot be found or, by virtue of section 28 of the Human Fertilisation and Embryology Act 1990, there is no other parent, or
(b) there is some other reason justifying the exclusion of the other natural parent,
and where such an order is made the reason justifying the exclusion of the other natural parent shall be recorded by the court.'
Hale LJ noted that this provision is directed at sole adoption applications by natural parents. She continued, at p 598, para 34:
'It requires of this already very small and unusual group that there be some reason, comparable to the death, disappearance or anonymous sperm donation of the other natural parent, 'justifying' his or her exclusion, not only from parental responsibility for but also from the whole life and lineage of the child.'
Hale LJ found reinforcement for a restrictive interpretation of section 15(3)(b) ('some reason comparable to the death, disappearance or anonymous sperm donation of the other natural parent') in the need to read and give effect to this statutory provision, so far as possible, in a way which is compatible with the rights set out in article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms. Article 8 provides:
'1. Everyone has the right to respect for his private and family life, his home and his correspondence.
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.'
Hale LJ noted that an adoption order is an interference by a public authority, in the shape of the court which makes it, with the exercise of the right to respect for family life. There are three components in the exceptions permitted under article 8(2): the intervention must be 'in accordance with the law', in pursuit of one of the legitimate aims defined in article 8(2), and 'necessary in a democratic society'. There is no difficulty with the first two components. The Adoption Act permits adoption in the circumstances of child A, but only if there is reason to exclude the mother. The intervention by the court is...
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