Re D. (an Infant) (Adoption: Parent's Consent)
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Edmund-Davies |
| Judgment Date | 15 December 1976 |
| Judgment citation (vLex) | [1976] UKHL J1215-2 |
| Court | House of Lords |
[1976] UKHL J1215-2
House of Lords
Lord Wilberforce
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Edmund-Davies
Upon Report from the Appellate Committee, to whom was referred the Cause In re "D" (an Infant), That the Committee had heard Counsel, as well on Tuesday the 2d, as on Wednesday the 3d, days of November last, upon the Petition and Appeal of Nigel Dixon and Sheila Mary Dixon, both of 1, Moultain Hill, Swanley in the County of Kent, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 9th of February 1976, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the consent of Clifford Peter Dalton to the adoption of the said Infant should be dispensed with on the ground that he is withholding his consent unreasonably, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament, might seem meet; as also upon the Case of Clifford Peter Dalton lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 9th day of February 1976, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of His Honour Judge Noakes and the Order of the Dartford County Court of the 28th day of April 1975, thereby set aside, be, and the same are hereby, Restored: And it is further Ordered, That the Costs incurred by the Appellants and by the Respondent in respect of the said Appeal be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Dartford County Court, to do therein as shall be just and consistent with this Judgment.
My Lords,
The mother and the stepfather of a boy, aged 9, appeal to this House against an order of the Court of Appeal that the consent of the father to the adoption of the boy be not dispensed with and that an adoption order be refused. The appellants wish to adopt the boy, and an order that they should be authorised to do so was made by His Honour Judge Noakes in the Dartford County Court. The judge dispensed with the consent of the father on the ground that it was being unreasonably withheld. I shall refer to the parties as the mother, the father and the stepfather in order to preserve anonymity.
The father and the mother were married in 1966 and the boy was born in September 1967. Before the marriage the father had homosexual tendencies for which he had received voluntary treatment. But after a short period the marriage broke down, the mother left the father and in December 1971 she obtained a decree nisi (later made absolute) of divorce on an undefendend petition alleging cruelty, in which the main allegation was that the father was a homosexual. A consent order was made granting her the custody of the child with reasonable access for the father. Meanwhile, the mother had renewed an earlier friendship with the stepfather who was then himself married but separated from his wife. In August 1971 she went to live with him, taking the boy, and after the dissolution of the marriages of the mother and the stepfather they married in April 1974. They have a child, a boy, born in February 1973. The father for some time paid the mother £3 a week but these payments were discontinued by agreement and the stepfather assumed full responsibility for maintenance of the boy.
In April 1972 the mother, without notifying the father, changed her name and that of the boy to that of the stepfather—a step which was improper and gives her no fresh rights. At that time the father was seeing the boy once a week in the mother's home. These visits became less frequent and ceased in August 1974. It is clear from letters written by the mother that she and her husband wished wished to break the ties between the boy and his father because they wanted the boy to be a full member of their family. The boy, it appears, did not know that the father was his father—he was called "Uncle …", and the mother was concerned as to the possible effect on the boy if he learnt of this fact.
Notice of the joint application of the mother and the stepfather to adopt the boy was given on 17 January, 1975 and at the same time the applicants asked for the consent of the father to be dispensed with on two grounds, (1) failure to maintain, (2) that the father was a "a practising and admitted homosexual who associated with young men". It is not disputed that the real ground is the second. It is clear, and I wish to emphasise, that as stated this is misconceived. The law does not provide that the consent of a parent may be dispensed with because of his, or her, homosexual tendencies, or of any similar abnormal conduct. The only relevant ground is that the parent, in this case the father, is unreasonably withholding consent to the adoption. (Adoption Act 1958, section 5(1)).
In accordance with the Rules, a guardian ad litem was appointed for the boy. This was a social worker in the Social Services Department of Kent County Council. On 22 April 1975 she submitted a careful and detailed report, giving the history of the matter and the result of the normal enquiries. The effect of this was to show that the applicants were a mature couple with a happy stable relationship. Their material circumstances were favourably reported on. The recommendation was that, dependent on the judge's decision as to dispensing with the consent of the father, an adoption order should be made.
The application was heard by the learned judge on 28 April 1975. Oral evidence was given by the mother, the stepfather and the father. This evidence brought out a number of facts bearing on the father's homosexual tendencies and behaviour, mainly testified to or admitted by the father himself. He admitted the allegations in the petition of divorce: he admitted that he had been living for about a year with a young man, then aged 19. Before then he had an association with another young man in his early 20s. He had other associations in the last few years, he thought about four, with men of about the same age. He said that he wished further access to his son to continue and would be willing to meet under supervision at some place other than his own flat. In cross-examination—no doubt in answer to a suggestion couched in this form—he gave an answer recorded by the judge as "don't think it right for [the boy] to be subjected to homosexual influence". In answer to questions from the judge he said, "When [the boy] gets older access would have to be more broad than seeing him at present. I am confirmed homosexual. Will be likely to have homosexual friends and live with men. Maybe [the boy] as gets older will find this out. Don't think it will do him any harm".
At the close of the evidence the judge retired for a short time and then gave judgment approving the adoption and dispensing with the father's consent.
In his judgment, of which an approved note (not verbatim) is available, after stating the facts, the judge directed himself in these words:—
"The test (of unreasonableness) is objective. The onus is upon the applicants, if in doubt the decision must be for the natural father. Very serious to dispense with father's consent. A father who wants the child, is fit to support him, its (sic) prima facie impossible to say he is unreasonable. Unreasonableness is not culpability. One must look at the totality or the facts; see In re W. (an infant) [1971] A.C. 682".
Later he referred again to the speech of Lord Hailsham of S t. Marylebone L.C. in In re W.
"All circumstances to be looked into. Welfare not the only consideration but is most important".
In my opinion this direction was correct in law. On the facts, the learned judge, when summarising the father's evidence as to his tendencies and conduct—as I have summarised them above—said that the father was perfectly honest, frank and straightforward. He came to his conclusion in the following passage:—
"TEST: What would reasonable father do in all the circumstances? In my view, a reasonable father, knowing all about his own life-style, would say 'If I were to have any real contact with the boy, I'd want him to stay with me to see me more often and on holidays'. Father would be extremely unlikely to prevent boy coming into contact with other men of his own proclivities. A reasonable man would say 'I must protect my boy even if it means parting from him forever so that he can be free from this danger'.
"IT follows that this is not the case of a rare incident of misconduct or criminality. The father has nothing to offer his son at any time in the future. I dispense with Mr. D's consent on ground that it is being withheld unreasonably."
The father brought an appeal to the Court of Appeal which was heard by Stephenson and Orr L.J. and Sir Gordon Willmer. Each delivered a judgment allowing the appeal. Orr LJ. based his decision mainly upon his conclusion that there was no immediate danger to the boy. He referred to the recently decided case of In re B. [1975] Fam. 127 which he said, if the judge had been referred to it, might have led him to take a different view. Sir Gordon Willmer, after quoting from the speech of Lord Hailsham of St. Marylebone L.C. in In re W. where his Lordship gave some examples of unreasonableness, said that there was nothing in the father's attitude which came within any of these categories...
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