Re D. (an Infant) (Adoption: Parent's Consent)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORR,SIR GORDON WILLMER |
| Judgment Date | 09 February 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0209-4 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 February 1976 |
[1976] EWCA Civ J0209-4
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Respondent from Order of His Honour Judge Noakes, Dartford County Court, April 28, 1975.)
Lord Justice Stepheson,
Lord Justice Orr and
Sir Gordon Willmer.
MR. R.B. MAWREY, (instructed by Messrs. T.G. Baynes & Sons of Dart ford, Kent) appeared on behalf of the Appellant (Respondent).
MR D. DAY, (instructed by Messrs. Andrews Fine & Co. of Swanley, Kent) appeared on behalf of the Respondents (Applicants).
LORD JUSTICE STEPHENSON: I will ask Lord Justice Orr to deliver the first judgment.
This is an appeal by the father of a boy, Gary John, now aged eight years, against an order made by His Honour Judge Noakes in the Dartford County Court on the 28th April of last year that the appellant'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 a Mr. Dixon, whom the mother of the child has married as her second husband since obtaining a divorce from the appellant, 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 on the 29th October, 1966, and Gary was born on the 28th September, 1967. But the marriage afterwards broke down, and the mother on the 13th December, 1971, obtained a decree nisi on an undefended petition alleging cruelty, in which her main allegation was that the father is 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 Gary with her. Their marriage, which was delayed pending her divorce and that of the Dixons, took place on the 11th April, 1974. They have a child, Stuart, born on the 18th February, 1973, and have been living since the marriage in a semidetached rented council flat. The appellant, after the parting, paid the mother £3 a week untilshe went to live with Mr. Dixon, after which the payments were discontinued by agreement, and Mr. Dixon 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 surname of Gary, together with that of the mother, was changed by Deed Poll to Dixon 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 Gary regularly once a week in the mother's home after the boy returned from school. But later these occasions became lass 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 Gary and his father, partly because they wanted Gary 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 husband'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 wife's petition.
At the hearing the respondent's 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 appellant. The mother gave evidence-in-chief that Gary regards Mr. Dixon as his father, and does not know who the appellant is, whom he calls Cliff. But in cross-examination she gave further evidence that ten days before the hearing she and her husband had told the child that they were trying to 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 Mr. Dixon gave evidence that the father had been, a year before, living in a homosexual relationship with a youth of 17 or 18, and Mr. Dixon gave evidence that there had previously been at different times three men with whom he had been living. The father admitted the allegations of homosexuality made in the wife's petition; that he had been living for a year with a young man of about 18, and had previously at different times lived with some four others; and that he is a confirmed homosexual, and will never marry again or have another child. He told the judge that he loves Gary and that he genuinely wants to see him, and he proposed that there should be access in the home of his parents, who live some six miles from Dartford, but that when Gary is older there should be a broader form of access. He said that he did not think it right that Gary should be subjected to homosexual influences, and could guarantee that he would not be so subjected. But he agreed, as is obvious in the circumstances, that he himself islikely to have homosexual friends and to live with men, and that possibly Gary would find this out, although he expressed the view that if this happened it would not do Gary any harm.
In his judgment the learned judge directed himself that the onus was on the applicants to establish unreasonable withholding of consent, and that to dispense with consent is a serious, matter. He referred to the homosexual history of the husband, and recorded that he had been an entirely honest and straightforward witness. He pointed out that he had been invited by the respondents to take a longer view of the case, and, in particular, to bear in mind that the time could come, if an adoption order was not made and if access took place, when the child might be taken out by the father, whose friends were likely to have the same tendencies as the father himself.
In these circumstances, directing himself on the authority of re ( "W" an Infant 1971 A.C. p. 682) that the test of unreasonable refusal is an objective one, of what the reasonable father would think, he concluded that in the present case the reasonable father's answer would be; "I must protect my boy even if it means parting from him for ever so that he can be free from this danger." At the conclusion of his judgment he added in manuscript: "This father has nothing to offer his son at any time in the future." I take that, because there is a reference to nothing else in the judgment, to be a reference to the husband's homosexuality.
Before turning to the grounds of appeal, I should record that both counsel before us were agreed that we are not concerned in this case with the Children Act 1975, although certain provisions of that Act were brought into force on the 1stJanuary last, including Section 3, which concerns the duty of the court to promote the welfare of the child; and both counsel were further agreed that if it were our duty to apply those provisions it would make no difference to the outcome of this appeal.
All save two of the grounds of appeal in the case relate to different aspects of the issue of homosexuality. The last two grounds, which do not, allege that the judge gave insufficient weight to the successful access that had taken place until August, 1974, or to the appellant's genuine affection for the child, and willingness to have continued to maintain him. All these matters were the subject of favourable references in the judgment, and the only question which arises, and to which I shall return later, is whether the view which the judge formed on the issue of homosexuality led him to attribute too little weight to these other factors.
The real issue in the appeal has been with reference to the father's admitted homosexuality, as to which Mr. Mawrey's first argument was that the reasonable father, whose views are to be considered on the authority of re "W", must in the circumstances of this case be taken to be a homosexual father. In my view this argument is right, and I think that the judge, in the paragraph of his judgment which includes the words "knowing all about his own life style" and "I must protect my boy", adopted the same approach. But if I am wrong on this issue and the reasonable father who is required to answer the question is to be assumed to be heterosexual, or alternatively no assumption is to be made of his sexual characteristics, I consider that the outcome of this case would be the same, since on the authority of re "W" he is required to look at the matter "from the pointof view of the parent" and "having regard to the whole circumstances" (per Lord Hailsham at p. 699), and to consider what a reasonable parent "placed in the position of the parent in question would do" (per Lord MacDermott at p. 709), and in this case the parent was a homosexual.
Mr. Mawrey's next submission was that, in all the circumstances of this case, the judge was wrong in concluding that the reasonable father would have given his consent to the adoption. On this question, I think that the judge's conclusion would have been...
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