Re C. (L.) (an Infant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARSON,LORD JUSTICE DIPLOCK |
| Judgment Date | 24 July 1964 |
| Judgment citation (vLex) | [1964] EWCA Civ J0724-1 |
| Date | 24 July 1964 |
| Court | Court of Appeal |
[1964] EWCA Civ J0724-1
In The Supreme Court of Judicature
Court of Appeal
(From: His Honour Judge Rawlins - Oxford County Court)
Lord Justice Pearson and
Lord Justice Diplock
Mr. T. H. BINGHAM (instructed by Messrs. Preston, Lane-Claypon & O'Kelly, Agents for Messrs. Cole & Cole, Oxford) appeared on behalf of the Appellant (Respondent below).
Mr. DAVID THOMAS (instructed by Messrs. Darby & Son, Oxford) appeared on behalf of the Respondents (Applicants).
This is an appeal from a decision of His Honour Judge Rawlins in the Oxford County Court on the 21st May, 1964. In adoption proceedings, he ordered that the consent of the mother be dispensed with, on the ground that it was being unreasonably withheld.
The child is a girl, born on the 12th October, 1961. The mother is a spinster. She was then aged about 24. The father was then aged about 39. He is a married man who has been separated from his wife and his two children for about 11 years. His wife is a Roman Catholic and unwilling to divorce him. He pays maintenance for the wife and at one time he paid maintenance for two children, but apparently one of them is now over 16 and maintenance is payable only in respect of one child. For four months after her birth, the child to whom this case relates remained with her mother. Her mother lives in her parents' house, which is fairly large and commodious.
Then the sequence of events can be taken from what is called the Summary of Case, which is part of the report of the Oxford Children's Officer, Miss Faithfull. It was produced by a senior children's officer, Miss Pollard, but that was in broad effect quite appropriate, because it was Miss Pollard who had been handling the case throughout, with net much intervention from Miss Faithfull. The Summary shows the sequence of events.
On the 9th January, 1962, the father and the mother called at the office of the Children's Department and made an application for the child to be received into care under the Children's Act, 1948, to be fostered – that is to say to be cared for by foster-parents – with a possible view to adoption. Then on the 5th February, 1962, she was placed as a foster-child with the present applicants, who had already adopted one child, a boy, a year or so older than the child in question. There was some mention of possible adoption being made eventually. On the 14th March, 1962, the father called at the office and stated that he thought the baby should be adopted. The mother also called,but she said she could not make up her mind for adoption. Then on the 28th June, 1962, by prior arrangement, the mother saw the baby at the office, at her request, and she then gave oral permission for the adoption proceedings to commence.
Then for a long period, from the 28th June, 1962, when the oral consent was given, until August of 1963, the mother would not sign her consent to adoption, because (as she put it at one stage) she was not able to put pen to paper, although at some stages she said she thought adoption would be in the best interests of the child. There are many examples in this Summary of Case of appointments being made for the mother to come to the office but not being kept. No doubt that would be an indication of indecision on her part.
On the 14th May, 1963, the mother 'phoned the office and said that she knew that adoption was in the best interests of the child but she could not bring herself to put pen to paper. On the 6th June, 1963, she called at the office and said she was going away on holiday and that she would probably sign the adoption papers after her holiday.
Then there was a more extensive conversation, I think wholly on the telephone, on the 7th August, 1963, when it was suggested to the mother that, in the interests of the baby and in her own interests and the interests of the prospective adopters (who were then the foster-parents), she should try to come to some firm decision concerning the baby's future. It was tentatively suggested that if she was not going to sign the adoption papers then the baby should be returned to her. She protested against being confronted with that choice. She said that she could not have the baby herself.
Then on the 22nd August she was given a consent form to sign. Miss Pollard suggested that the mother should have her baby back, but the mother said she could not do this. On the following day the father brought the signed consent form into the office: the mother remained in the car outside, apparently too upset to come in.
On the 27th August, 1963, the applicants "lodged theadoption papers" – that is to say, I suppose, they made their application. On the 2nd September (very soon afterwards, therefore) the mother wrote withdrawing her consent to the adoption, saying that she could not care for the child herself but would try to find another foster-mother for her. Then on the 12th September the mother rang up to say that she wanted the baby back; she was trying to find a foster-mother for the child. On the 16th September again she said that she was still trying to find another foster-mother for the baby. She said that she and the father were hoping to get a caravan and would set up home together with the child.
That is the main part of the history, I think. It is a quite comprehensible history. One can understand that the mother was very reluctant to give up all her rights in respect of the child – because that is what adoption would involve. On the other hand, it would appear that during that period she was not willing or not able to have the child back and to look after the child herself. The effect of that naturally was that the child remained longer and longer with the foster-parents and became more and more fond of them, and they became more and more fond of the child.
As to the foster-parents, no criticism at all is made. They are regarded as good foster-parents, and they are fond of the child and she is fond of them. There is also the other adopted child whom they have, the small boy; and the evidence is that the small boy and the small girl to whom this case relates get on well together as brother and sister.
Then proceedings were taken for an order dispensing with the mother's consent. The hearing began on the 6th January, when important medical evidence was called. After the medical evidence had been given the hearing was adjourned to the 23rd January, in order that the mother should have an opportunity of considering the medical evidence. The medical evidence consists partly of a report by Dr. MacCarthy, which was put in as evidence in chief, and also of further oral evidence from him, to which I will refer in a moment. Then on the 23rdJanuary the hearing was resumed and the mother gave evidence, to which also I will refer in a moment. I think the evidence may have extended to another day, the 16th March, when judgment was reserved by the learned judge. At any rate, on the 21st May, 1964, he gave a very long and carefully considered judgment, setting out at considerable length the contentions for the two sides and his findings. He decided that the order should be made dispensing with the consent.
Now I come to the medical evidence in this case. But before coming to the medical evidence I should state briefly what is the principle involved in cases of this kind. We are not concerned in cases of this kind, where the question is simply whether the mother's consent is being unreasonably withheld, with, in itself, the question of which course would be in the best interests of the child. It is not enough to show – indeed it is not strictly a relevant consideration by itself – that in the interests of the child it would be better that the child should remain with the foster-parents, or that the child should be taken by the mother. What is relevant is the mother's attitude to questions concerning the welfare of the child.
Mr. Thomas has pointed out that there are two aspects in this case. The learned judge in the first instance has decided primarily that the mother unreasonably withheld her consent, having regard to the medical evidence, which she had the opportunity of seeing and considering, and indeed did see and consider. The second aspect raises the question whether the mother's attitude of withholding consent was reasonable in relation to the arrangements – or lack of arrangements – which had been made for the child's future in the event of the child being returned to her.
I come, therefore, to the medical evidence, being careful to approach it from the right angle. What matters is not what would be in the interests of the child but what would be the reasonable attitude of the mother when she was confronted with this medical evidence. The medical report is a long andcareful report, and the conclusions are set out. Just before the conclusions, I should read this passage. The doctor has been referring to what had happened when the mother visited the child, or was able to see the child at the office. There were several visits. He said: "These incidents show that /the child? has the capacity to react by anxiety to the psychological components of a situation. They show her to be a sensitive child. She was probably aware of the feelings of her real mother towards her and found this disturbing, either being frightened by it or feeling it as a conflict".
Then in his conclusions the doctor goes on to deal with the possible adverse effects of a separation from the foster- parents. It is more than possible, he said, that such adverse effects will be experienced in a greater or less degree. He said: "If the child/ leaves the care of the applicants she will be affected in two ways. (1) There will be a period of suffering due to the anxiety and depression which separation of a 2-year-old...
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