Re C (Minors) (Adoption: Parental Agreement)
| Jurisdiction | England & Wales |
| Judgment Date | 1991 |
| Date | 1991 |
| Year | 1991 |
| Court | Court of Appeal (Civil Division) |
FOX AND BALCOMBE, L JJ
Adoption – parental agreement – father exercising beneficial access – children placed with prospective adopters who were not likely to agree to access – whether father withholding agreement to adoption unreasonably – whether local authority should place child with prospective adopters before issue of access determined.
Access – children in care – father exercising beneficial access – whether children should be placed for adoption before issue of access determined.
The parents had two children, one born in May 1984 and the other born in May 1985. The parents' marriage was stormy, characterized by alcohol and drug problems. The marriage broke down in 1986 but the parents did not finally separate until 1987 and in that year they were divorced. In April 1987 custody of the children was given to the mother. In November 1987 the children were received into care at the mother's request. The local authority placed the children with an uncle and aunt as short-term foster parents. Thereafter the mother played no major part in the childrens' lives. The father visited them regularly and applied for custody. The local authority applied for a care order under s 43 of the Matrimonial Causes Act 1973. The issue was decided in March 1989. In the course of his judgment, the Judge commented favourably on the father's commitment to the children and on the bond of affection between them. However, the Judge held that the father's lifestyle and temperament were such that there was an unacceptable risk that the placement would fail if the father were given custody. He therefore made a care order but he specifically stated that if the children were placed for adoption, the question of dispensing with the father's agreement would not be a mere formality. The Judge further observed that working towards a rehabilitation of the children with the father did not seem to have been explored.
By November 1989 the local authority were of opinion that there were only two possible options for the children: long-term fostering with access or adoption. The father wished to continue his efforts to have the children returned to his care. The local authority therefore decided that long-term fostering was not appropriate as the father's efforts to have the children returned to him would undermine their sense of security. The local authority reduced the father's access from once a week to once a month. The object was to lead up to long-term fostering, or adoption, without access. In March 1990 the fostering and adoption panel of the local authority recommended that the children be accepted for adoption. Prospective adopters
[1991] FCR 1052 at 1053
were found. The local authority informed the father of their decision to place the children for adoption but nothing was said about access and the local authority failed to comply with reg 7(1)(a) of the Adoption Agencies Regulations 1983 in that they did not explain the legal implications of and procedures in relation to adoption and freeing for adoption. In April 1990 the children were placed with prospective adopters who had previously declined to take a child where it was suggested that some parental access should be retained. The prospective adopters were not told that, in the present case, the father wished to retain contact with the children. Soon after the placement of the children the father's access was terminated.
In May 1990 the local authority began proceedings in a county court for an order declaring the children free for adoption. They requested the court to dispense with the father's agreement to adoption on the ground that he was withholding it unreasonably. In error, instead of a date of hearing being fixed in accordance with r 9(1) of the Adoption Rules 1984, it was directed that the application be listed for hearing upon the parties filing certificates of readiness.
In July 1990 the father applied in the divorce proceedings for access to the children. The registrar directed that the application be heard immediately after the applications to free the children for adoption. These applications were not heard until January 1991.
In her report, the guardian ad litem stated her opinion that adoption with access to the father would in principle meet the children's needs but that such an order would carry a threat to this particular placement. At the hearing, the father accepted that rehabilitation was no longer possible, but he still desired access. In oral evidence the guardian ad litem expressed the view that the placement should not be put at risk by attempting to reintroduce access by the father.
In his judgment, the Judge criticized the local authority for not informing the proposed adopters of the reality of the situation. He found that adoption was desirable having regard to the children's need for security and a suitable family, and the impracticability of rehabilitation. Applying the test stated in Re W (An Infant) (1971) 135 JP 42, 259; [1971] AC 682, the Judge stated that had the application been heard promptly, he would have refused to dispense with the father's agreement as he would have considered that continued access was in the children's interests. The prospective adopters were not made parties to the proceedings nor called to give evidence. The Judge stated that he would have been happier to have heard their evidence but he relied on the evidence of the guardian ad litem that although the prospective adoptive mother might have been able to tolerate access, the prospective adoptive father could not. He concluded that if to refuse a freeing order would lead to a breakdown in the placement, that would be so disastrous that no reasonable parent would continue to withhold agreement. He therefore dispensed with the father's agreement and made an order declaring the children free for adoption.
The father appealed. On the application of the guardian ad litem the children were joined as respondents to the appeal to proceed through the guardian ad litem.
Delivering the judgment of the court, Balcombe, LJ referred to the relevant provisions of statutes, rules, and codes of practice which applied to the case. These included s 43 of the Matrimonial Causes Act 1973, Part IA of the Child Care Act 1980, and the Code of Practice: Access to Children in Care. These statutory provisions have been repealed by the Children Act 1989, and the Code of Practice on Access has been replaced by a new code: The Children Act 1989 Guidance (Volume 3) Family Placements, chapter 6 of which deals with contact. These changes do not affect the decision of the Court of Appeal. See Note "Contact and Adoption" at p 1045 ante.
Held – allowing the appeal: (1) At first sight, the procedure of freeing for adoption would seem to be intended for the case where the child had not been placed for adoption; and if the child had been placed, the prospective adopters should apply for an adoption order. However,
[1991] FCR 1052 at 1054
s 18(3) of the Adoption Act 1976 provided that on an application to free a child for adoption, no parental agreement should be dispensed with unless the child was already placed for adoption or the court was satisfied that it was likely that the child would be placed for adoption. That provision clearly contemplated that the child might be placed before a freeing application was made and there could be advantages in proceeding for freeing rather than for an adoption order. However, it might not be appropriate to proceed in this way if the prospective adopters' attitude to access was a crucial issue in deciding whether adoption was desirable in the interests of the child.
(2) In this case, the Judge could not properly determine that adoption without access was in the interests of the children without the prospective adopters being before the court so this crucial question of access could be determined by direct evidence. By r 4(3) of the Adoption Rules 1984 any person, other than the child, could be made a respondent. The Judge could and should have made use of that power to joint the prospective adopters of his own motion as he had felt the need to see and hear them. The consequence of his decision was to sever permanently all contact between the children and their father, which had hitherto proved beneficial to them. Further, if the Judge had decided that the children's interests required continued access by the father, he would have been faced with the alternatives of long-term fostering or adoption with access. There was no power to attach a condition for access to an order declaring the children free for adoption. However, if the Judge decided that adoption with access was appropriate, it might have been possible to convert the freeing application into an application by the prospective adopters for an adoption order. Alternatively, it would have been possible to secure an undertaking from the prospective adopters that they would consent to a condition for access on the subsequent adoption application. The father's appeal would be allowed on the ground of the failure by the Judge to direct that the prospective adopters be joined as parties.
(3) The Judge had stated that he would have refused to dispense with the father's agreement had the application been heard promptly. He held, however, that because of the delay in the hearing and the consequential risk of the breakdown in the placement with the prospective adopters, the father's refusal became unreasonable by the date of the hearing. It was common for delay to bring about a state of affairs which the court had to accept because it appreciated that to attempt to change that state of affairs would be detrimental to the welfare of the child. But it did not follow that a parent who started by reasonably refusing agreement became unreasonable because of the delay. That would make the welfare of the child the sole test which it was not: Re W (An Infant) [1971] AC 682. The delay in the present case was not such as...
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