Re D. (an Infant) (Adoption: Parent's Consent)

JurisdictionEngland & Wales
JudgeLORD JUSTICE ORR,SIR GORDON WILLMER
Judgment Date09 February 1976
Neutral Citation[1976] EWCA Civ J0209-4
Date09 February 1976
CourtCourt of Appeal (Civil Division)
[COURT OF APPEAL] In re D. (AN INFANT) (ADOPTION: PARENT'S CONSENT) 1976 Feb. 4, 5, 6, 9 Stephenson and Orr L.JJ. and Sir Gordon Willmer

Adoption - Consent of parent - Dispensing with - Homosexual father withholding consent to son's adoption - Whether consent unreasonably withheld

The mother of a boy aged eight years obtained a divorce on the ground of the father's cruelty constituted by his homosexuality. By consent custody was granted to her with reasonable access to the father. Access took place once a week in the mother's home but later became less frequent and eventually ceased altogether. The father paid the mother £3 a week maintenance until she went to live with a man whom she later married and the payments were discontinued by agreement, the mother's husband assuming full responsibility for the boy's maintenance. The mother with her husband applied to adopt the boy partly because they wanted him to be a full member of their family and partly because of their concern about the possible effect upon him of learning later that his father was a homosexual. The father opposed their application on the ground that he genuinely wanted to continue having access to his son at his parents' home and would guarantee that the boy would not be subjected to homosexual influences as a result of his continuing to have access. Judge Noakes held that the father's consent was being unreasonably withheld, dispensed with it and made an adoption order.

On appeal by the father: —

Held, allowing the appeal, that since there was no immediate danger if the adoption order was not made, of the child being subjected to homosexual influences, the judge was wrong in concluding that a reasonable father would have given his consent to the adoption.

In re B. (A Minor) (Adoption by Parent) [1975] Fam. 127, D.C. approved.

Dicta of Lord Hailsham of St. Marylebone L.C. and Lord MacDermott in In re W. (An Infant) [1971] A.C. 682, 699, 700, 709, H.L.(E.) applied.

Per Orr L.J The reasonable father whose views are to be considered must in the circumstances of this case be taken to be a homosexual father (post, p. 16C–D).

Per Stephenson L.J. I think the judge was right to attempt the self-contradicting operation of putting a normal heterosexual father in this father's place. The court can and should decide whether a normal father would think that this father's decision was unreasonable (post, p. 22B–C, D).

The following cases are referred to in the judgments:

B. (A Minor) (Adoption by Parent), In re [1975] Fam. 127; [1975] 2 W.L.R. 569; [1975] 2 All E.R. 449, D.C.

Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119; [1954] 2 All E.R. 801, H.L.(E.).

C. (An Infant), In re, December 4, 1975; Bar Library Transcript No. 520 of 1975, C.A.

Hitchcock v. W.B. and F.E.B. [1952] 2 Q.B. 561; [1952] 1 T.L.R. 1550; [1952] 2 All E.R. 119.

K. (An Infant), In re [1953] 1 Q.B. 117; [1952] 2 T.L.R. 745; [1952] 2 All E.R. 877, C.A.

O'Connor v. A. and B. [1971] 1 W.L.R. 1227; [1971] 2 All E.R. 1230, H.L.(Sc.).

Reg. v. Bishop [1975] Q.B. 274; [1974] 3 W.L.R. 308; [1974] 2 All E.R. 1216, C.A.

S. v. Huddersfield Borough Council [1975] Fam. 113; [1975] 2 W.L.R. 697; [1974] 3 All E.R. 296, C.A.

W. (An Infant), In re [1971] A.C. 682; [1971] 2 W.L.R. 1011; [1971] 2 All E.R. 49, H.L.(E.).

APPEAL from Judge Noakes sitting at Dartford County Court.

A boy was born in September 1967. One year later his mother was separated from the father who paid her £3 a week maintenance. In August 1971 she went to live with the man whom she later married, taking the child with her and, by agreement, payment of the maintenance was stopped. In December 1971 she was granted a decree nisi of divorce on the ground of cruelty based on the father's homosexuality. The father, who had been living for a year in homosexual relationship with a man of 18 and had previously lived with four other men, had access to the child by agreement at the mother's home once a week in the presence of the mother and her husband. They applied to adopt the child so as to cut off all contact between him and the father because of their concern that he might become subjected to homosexual influences by coming into contact with the father's homosexual associates. The father objected, saying that he loved his son and genuinely wanted to continue having access to him at the father's parents' home and that he would guarantee that the child would not come under homosexual influences; he also said that he was willing to continue paying for his maintenance. The mother and her second husband successfully applied to Judge Noakes to dispense with the father's consent on the ground that he was unreasonably withholding it.

The father appealed on the grounds, inter alia, that the judge was wrong (a) to take into account (alternatively he gave excessive weight to) the fact that the father was a practising homosexual; (b) in holding that the father was unreasonable in withholding his consent for the applicants to adopt the child; (c) to take into account when determining the reasonableness of the father's withholding of consent, the possibility that at some future time the child might be brought into contact with homosexuals other than the father; that there was no, alternatively insufficient, evidence to justify the judge's finding that there was a likelihood of the child being brought into contact with homosexuals other than the father; and that even if that possibility existed the judge was wrong in holding that it constituted a danger or that it was or was capable of being a sufficient reason for dispensing with the father's consent to the adoption.

R. B. Mawry for the appellant father.

D. Day for the respondents.

STEPHENSON L.J. I will ask Orr L.J. to deliver the first judgment.

ORR L.J. This is an appeal by the father of a boy, now aged eight years, against an order made by Judge Noakes in the Dartford County Court on April 28, 1975, that the father's consent to the adoption of the child be dispensed with and that the respondents should be authorised to adopt him; the first respondent being the man, whom the mother of the child has married as her second husband since obtaining a divorce from the father, and the second respondent being the mother herself.

The father of the child is 31 years of age and employed as a milkman, and the mother is 28. They married in October 1966, and the child was born on September 28, 1967. But the marriage afterwards broke down, and the mother, in December 1971, obtained a decree nisi in an undefended petition alleging cruelty, in which her main allegation was that the father was a homosexual. On the decree a consent order was made granting her the custody of the child, with reasonable access to the father, and the decree was made absolute three months later. In the meantime, in early 1971, the mother had renewed a teenage friendship with the first respondent, who had since married but was living apart from his wife, and she went to live with him in August 1971, taking the child with her. Their marriage, which was delayed pending her divorce and that of the first respondent, took place in April 1974. They have a child, born in 1973, and have been living since the marriage in a semi-detached rented council flat. The father, after the parting, paid the mother £3 a week until she went to live with the first respondent, after which the payments were discontinued by agreement, and the first respondent assumed full responsibility for the maintenance of the child, receiving, also by agreement, the whole of the income tax child allowance.

In April 1972 the child's surname, together with that of the mother, was changed by deed poll to that of the first respondent without any prior notification to or discussion with the father, and he was angry about that matter when informed about it after the event in a letter from the mother. It is common ground that at that time, and for some time afterwards, the father was seeing the child regularly once a week in the mother's home after the boy returned from school. But later these occasions became less frequent, and they ended altogether in August 1974, some nine months before the order under appeal. It is clear from a letter written by the mother to the father in 1974 that she and her husband wished to break the ties between the child and his father, partly because they wanted the child to be a full member of their family, and partly because they were concerned about the possible effect upon him of learning later on that the appellant is his father. It is true to say that in that letter the father's homosexuality is not mentioned in terms as a reason for breaking the ties, but that matter may well have been in the mother's mind. It is also true that in the original grounds of application to dispense with the father's consent the first ground given is his failure to pay maintenance, which was without substance and was later withdrawn, and only the second ground was the homosexuality. I am, however, quite unable to accept that the ground of homosexuality was in any sense an afterthought. As I have earlier stated, it had been the main ground of the mother's petition.

At the hearing the respondents' application to adopt the child was supported in a written statement on behalf of the guardian ad litem, who is the director of social services for Kent, and the judge heard oral evidence from both respondents and from the father. The mother gave evidence-in-chief that the child regards the first respondent as his father, and does not know who the appellant is, whom he calls Cliff. But in cross-examination she gave further evidence that 10 days before the hearing she and her husband had told the child that they were trying ta adopt him, and that he had another daddy. It is clear, in my judgment, that that does not indicate that the child had been told that the appellant is his father, but merely that he has another daddy.

Both the mother and the...

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