Re D (A Minor) (Adoption Order: Validity)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE |
| Judgment Date | 21 December 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J1221-6 |
| Docket Number | 90/1145 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 1990 |
[1990] EWCA Civ J1221-6
Lord Justice Fox
Lord Justice Balcombe
Lord Justice Stocker
90/1145
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MR. JUSTICE THORPE)
Royal Courts of Justice
MR. DAVID HARRIS Q.C. and MISS R. HOWE (instructed by Messrs. D. P. Hardy & Co., Liverpool) appeared for the Appellant (First Defendant).
MISS J. M. P. DALEY (instructed by The Official Solicitor) appeared as Guardian Ad Litem.
MR. M. HEDLEY (instructed by the Liverpool City Solicitor) appeared for the Respondents (Plaintiffs).
This is the judgment of the court.
This appeal and cross appeal from an order made by Thorpe J. on 6th March 1990 raise two issues of importance on the law of adoption:-
(1) Is it essential, for the court to be able to make an adoption order in respect of a child, that there should be established a need to safeguard and promote the welfare of the child during the remainder of his childhood?
(2) On the making of an adoption order has the court power to make an order restraining certain named parties from having any contact or communication with the child adopted, either before or after the child attains his majority? Mark Davies was born on 12th March 1972. His parents were
not married and his father has played no significant part in his life: he is not concerned with this litigation. Mark was received into voluntary care in September 1980 and since December 1984 has lived with Mr. and Mrs. Bold, with whom he was then placed in long term foster care. In November 1989 the Bolds applied to adopt Mark and on 6th March 1990 (six days before Mark's birthday) Thorpe J. made an adoption order in their favour, dispensing with the mother's consent on the ground that it was unreasonably withheld. However, the judge refused to make an order at the suit of the Bolds to restrain the mother and her father (Mark's maternal grandfather) from having any contact or communication with Mark.
Unfortunately Mark suffers from a severe degree of mental handicap, with autistic features. He has a comprehension age of about four. These handicaps are likely to be permanent and Mark may never be capable of independent living. It is unlikely that he has any understanding of the concept of adoption.
The judge accepted that the Bolds care admirably for Mark and that his welfare requires that he should remain in their care for the foreseeable future. Mr. Harris, Q.C., for the mother, accepted that these findings are not open to challenge. Indeed, he very realistically accepted that the merits were against his client, but in a most clear and able argument submitted that the judge had no power to make an adoption order in respect of Mark, when at the date of the order there were only six days left of his childhood and an adoption order was not necessary to safeguard or promote Mark's welfare during those six days.
Although Mark was originally placed with the Bolds with the mother's consent, the relationship between her and the Bolds soon deteriorated, and the judge referred to "a history of active warfare between the mother and the foster parents—mother aided by her own father." The local authority issued proceedings in wardship in February 1985 and two applications in those proceedings (by the local authority and the Bolds) to suspend access by the mother and her father to Mark came before Butler-Sloss J. in June 1987. By her judgment given on 1st July 1987 Butler-Sloss J. held that the mother and her father had conducted a campaign of harassment against the Bolds which threatened to undermine Mark's placement with them. She therefore made an order suspending the mother's and grandfather's access to Mark, and granted injunctions restraining them from communicating with the Bolds or Mark. The wardship and these injunctions terminated on 12th March 1990 when Mark attained his majority. Thorpe J. found that the mother and her father were then likely to resume their challenge to Mark's placement with the Bolds, that guardianship under the Mental Health Act 1983 would not sufficiently protect the Bolds against repeated and unreasonable challenges, and this was a reason for making an adoption order. It would also, as Mr. Harris again realistically accepted, have been appropriate to underpin Mark's benefit after adoption by granting an injunction similar to that granted in wardship by Butler-Sloss J., but Thorpe J. held that he had no power to grant such an injunction, and that is the issue on the cross-appeal by the Bolds.
So we turn to consider these two issues separately.
The Appeal
The necessity for benefit during childhood.
Adoption is now governed by the Adoption Act 1976. That Act does not in terms define the purpose of an adoption order. The following sections are relevant to this question:
"6. In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
The sidenote to this section is "Duty to promote welfare of child."
"12.(1) An adoption order is an order vesting the parental rights and duties relating to a child in the adopters, made on their application by an authorised court…
(3) The making of an adoption order operates to extinguish—
(a) any parental right or duty relating to the child which—
(i) is vested in a person (not being one of the adopters)who was the parent or guardian of the child immediately before the making of the order, or
(ii) is vested in any other person by virtue of the order of any court;…
(5) An adoption order may not be made in relation to a child who is or has been married.
72.(1) In this Act, unless the context otherwise requires
…
'child', except where used to express a relationship, means a person who has not attained the age of 18 years;…"
From this it is clear that an adoption order can only be made in respect of an infant who has never been married, and this has been the case since the concept of adoption was first recognised in English law by the Adoption of Children Act 1926. In this respect English law differs from civil law systems which inherited the Roman law concepts of adoptio and adrogatio. Nevertheless, it has always been the case that adoption in English law creates a status which enures after the adopted child attains its majority, which status may confer substantial benefits—e.g. the acquisition of British citizenship—see now section 1(5) of the British Nationality Act 1981. And since 1st January 1950 adoption can confer proprietary rights on the adopted child—see now Part IV of the Adoption Act 1976.
There has never been any express provision in the Adoption Act which says that the sole purpose of adoption is to promote the welfare of the relevant child during minority. Thus section 3(b) of the 1926 Act provided that the court before making an adoption order should be satisfied that "the order if made will be for the benefit of the infant." "The infant" in this context means no more than the person to whom the application for adoption related, who as already stated had to be an infant who had never been married, and there is no provision that the order should be "for the benefit of the infant during his or her infancy". The Adoption Act 1950 contained a similar provision—see section 5(1) (b); as did the Adoption Act 1958—see section 7(l) (b). The law was changed by section 3 of the Children Act 1975 which was in force from 1st January 1976 to 1st January 1988, when it was replaced by section 6 of the Adoption Act 1976 which is in identical terms. It is to be observed that section 3 of the 1975 Act (and now section 6 of the 1976 Act) does not require the court to find a benefit to the child during minority as a condition precedent to the making of an adoption order; it does require the court to have regard to all the circumstances, but to give first consideration to the need to safeguard and promote the welfare of the child throughout his childhood. The meaning of this provision was explained by Lord Simon of Glaisdale in In Re D. (An Infant) Adoption: Parent's Consent) (1977) A.C. 602 at page 638 as follows:
"In adoption proceedings the welfare of the child is not the paramount consideration (i.e. outweighing all others) as with custody or guardianship; but it is the first consideration (i.e. outweighing any other)—see Children Act 1975, section 3 (now Adoption Act 1976, section 6), which may well have been no more than elucidatory and confirmatory of the pre-existing law (cf. Lord Reid in O'Connor v. A. and B. [1971] 1 W.L.R. 1227, 1230A), though the new statutory provisions are explicit that in adoption proceedings it is the welfare of the child throughout childhood which must be considered, and not merely short-term prospects."
Lord Simon's view that the new provision was no more than elucidatory and confirmatory of the pre-existing law was apparently shared by Lord Wilberforce [1977] A.C. at p. 629) and by Ormrod L.J. in In Re W. (Adoption: Parental Agreement) [1982] 3 F.L.R. 75, 80. Nevertheless, this is of no materiality if the previous law did not make welfare during minority a condition precedent to the making of an adoption order.
Mr. Harris accepted that neither the pre-existing law did, nor does the 1976 Act, expressly define the purpose of an adoption order. He submitted that the purpose—to promote the...
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