Re C (A Minor) (Adoption Application)
| Jurisdiction | England & Wales |
| Judgment Date | 1992 |
| Date | 1992 |
| Court | Court of Appeal (Civil Division) |
BOOTH, J
Adoption – illegal placement – child handed over by mother to husband and wife who were not related to child – deception – husband falsely passing himself off as father of child – whether High Court would retrospectively authorize placement.
Adoption – payment – power of court to authorize payment – unlawful payment made for the illegal handing over of child – payment amounting to sale of child – such a payment would not be authorized by court.
Section 11(1) of the Adoption Act 1976 provides:
"A person other than an adoption agency shall not make arrangements for the adoption of a child or place a child for adoption unless –
(a) the proposed adopter is a relative of the child, or
(b) he is acting in pursuance of an order of the High Court."
By s 72 of the Act "relative" is defined to include the father of an illegitimate child.
By s 57(1) of the Act it is provided that it shall not be lawful to make or give any payment or reward for or in consideration of the adoption of a child; but this prohibition does not apply to payments authorized by the court or to allowances paid by an adoption agency under an approved scheme. By s 24(2) it is provided:
"The court shall not make an adoption order in relation to a child unless it is satisfied that the applicants have not, as respects the child, contravened s.57."
A married couple wished to adopt a baby. They learned of a young woman ("the mother") who was expecting a baby. The mother was unmarried, did not propose to have an abortion, but did not think she could keep the child when it was born. The couple went to see the mother about five months before the child was born. It was then arranged that in order to by-pass the restrictions of the adoption laws and inquiries by the local authority, and in order to have the unborn child placed with the husband and wife at birth, the husband would falsely pass himself off as the father of the child. For the remainder of the mother's pregnancy the husband and wife kept a watchful eye on the situation. They said they gave the mother money to "keep her sweet". Their statements as to how much money they gave the mother varied. At first they said it was not more than £30 to £50 for maternity clothing but ultimately they said they gave the mother between £800 and £900. These payments, they said, were all made before the child's birth. The mother denied that these payments were made but said that the husband and wife had paid her £2,000 after the birth.
The child was born on 22 October 1989. On 23 October 1989 the baby was handed over to the husband and wife. The following day the husband and wife registered the birth of the child,
the husband falsely passing himself off as the father. On 30 October 1989 the husband and wife informed the local authority of their intention to adopt the child and inquiries were commenced in March 1990. The husband and wife adhered to the deception, as did the mother when visited by the social worker on 11 May 1990. However, by this time the mother was bitterly regretting handing over the baby, and on 14 May 1990 she telephoned the social worker saying she wanted the child returned to her. She then vacillated, opposing adoption but not the placement of the child with the husband and wife.
On 1 September 1990 the husband and wife commenced adoption proceedings in a county court on the basis that the husband was the father.
On 19 October 1990 the mother told the social worker the true facts. As a result, the local authority warded the child. The husband and wife adhered to the false story even after DNA tests showed that the husband could not be the father. They did not admit the deceit until 8 May 1991 following a hearing before Ewbank, J, when their legal advisers made the consequences of continuing it abundantly clear to them. Nevertheless, they persisted in their application to adopt the child or, in the alternative, to be granted care and control of the child, and did so until the seventh day of the present hearing when they withdrew their applications.
Held – (1) By s 57(1) of the Adoption Act 1976 it was not lawful to make any payment in consideration of the transfer of a child for adoption and by s 57(2) it was an offence to contravene subs (1). The standard of proof to be applied in arriving at findings under subs (1) in adoption proceedings was the civil standard of proof: the balance of probabilities; and not the criminal standard of proof required by subs (2). On the facts in this case it would be found that the husband and wife paid the mother £2,000 after the child's birth and that the payment was made in consideration of the mother handing over the child to them. Even if the evidence of the husband and wife that the payments were made in respect of the mother's rent arrears and in respect of a holiday had been accepted, it would have been found that the payments were made in relation to the adoption. In either event, the payments were in contravention of s 57 of the 1976 Act unless the court authorized the payments under s 57(3). Had it been necessary for the court to decide whether or not the payments should be authorized, the purpose for which they were made would have had to be taken into consideration. They were made by the husband and wife for the handing over to them of the child and with a view to ensuring that the mother would continue to adhere to the false story and the deceit which would lead to adoption. To authorize such payments would be to sweep aside the protection given by the Act to children and would, in effect, amount to ratifying the sale of a child for adoption. It would not have been right to authorize the payments made in this case, whichever version of the facts was accepted.
(2) By s 11(1) of the Act only an adoption agency could place a child for adoption unless the proposed adopter was a relative of the child or the placement was made in pursuance of an order of the High Court. It was not clear whether the High Court could give retrospective authorization. In Re Adoption Application AA 113/67 [1988] FCR 723 and in Re ZHH (Adoption Application)[1992] 1 FCR 197 this was done but the facts in both cases were very different. If a power to authorize an illegal placement did exist, the court should exercise its discretion with great caution and only give authorization where the placement was entirely in the interests of the child concerned, and an adoption was also in his best interests. Assuming the court had power to give retrospective authorization, there must be very grave concern as to the suitability as adoptive parents of a couple who were prepared to go to the lengths of deception as were the husband and wife in this case. It was clear from the evidence that they wanted the child to meet their own needs; they were not there to meet the needs of the child. On the facts in this case, no court could possibly have dispensed with the agreement of the mother to adoption applying the tests established in Re W (An Infant) [1971] AC 682. Further, if the deception had succeeded and an adoption order had been made, it would have been null
and void if thereafter the true facts had come to light. The damage then to the child, as well as to the adults concerned, would have been irreparable.
(3) The application for adoption would be dismissed. The child remained a ward of court. The mother's position was now such that there was sufficient prospect of success to attempt to rehabilitate the child with the mother. It would therefore be ordered that the wardship be confirmed which would hopefully lead to the child's rehabilitation with the mother.
Eleanor Platt, QC and Gillian Irving for the husband and wife.
Clive Newton for the mother.
Stephen Bellamy for the child.
Martin Allweis for the local authority.
MRS JUSTICE BOOTH.These are proceedings which concern a little boy but 20 months of age, to whom I shall refer as "C". The outcome of this application for adoption is already known, but the issues to which it has given rise are of such great public importance that I decided it was necessary, having heard all the evidence, to give this judgment in open court.
From the point of view of this little boy it would be tragic if he were identified. It would also be tragic and very difficult for the natural mother if she were identified and, indeed, too for the couple who were the prospective parents of this child. I shall do my utmost, in the course of this judgment, to refer to the parties by their initials and to other witnesses (apart from professional witnesses) by their first names only. But if I do make a mistake in the course of what is going to be a long judgment, I hope that I shall be forgiven and that identification will not follow.
I will formally direct that the parties and the child be not identified.
This is primarily an adoption application. The laws relating to adoption in this country are the creation of statute. There is no means under the common law whereby a child can be transferred from his or her natural family to become legally a member of another family. The adoption scheme, which was initiated by the first statute in England and Wales, the Adoption of Children Act 1926, and which has been refined successively by subsequent statutes until the present Act, the Adoption Act 1976, was designed to safeguard the interests, first and foremost, of the child or children concerned: but it was also designed to safeguard the interests of natural parents and of adoptive parents. The statutory provisions are also designed to ensure, as far as possible, that the adoptive parents are suitable for the particular child they seek to adopt and the scheme by which a child may be placed for adoption, and the requirements which precede an adoption order being made, must be satisfied. It is illegal to go outside the scheme and in certain instances, if that scheme is contravened, criminal offences may be committed.
It is against that background that I...
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