Re G (Adoption: Illegal Placement)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,LORD JUSTICE HIRST,LORD JUSTICE SIMON BROWN,Order |
| Judgment Date | 04 October 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J1004-1 |
| Docket Number | No CCFMF 94/0842/F |
| Court | Court of Appeal (Civil Division) |
| Date | 04 October 1994 |
[1994] EWCA Civ J1004-1
THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
Appeal of Third Respondent from order of His Honour Judge Newman Qc, Canterbury County Court
Before: Lord Justice Balcombe Lord Justice Hirst Lord Justice Simon Brown
No CCFMF 94/0842/F
MR G BRASSE (Instructed by Gardner & Croft, Canterbury) appeared on behalf of the Appellant/Third Respondent.
MR J BENNETT (Instructed by Furley Page Fielding & Barton, Canterbury) appeared on behalf of the First and Second Applicants.
MRS M MULLALLY (Instructed by Nicholas Bennett & Co, Sandwich) appeared on behalf of the Second Respondent.
(As Approved)
This appeal by the guardian ad litem of a child is from an order made by His Honour Judge Newman QC in the Canterbury County Court on 26th April 1994 whereby, on a directions hearing in an adoption application, he ordered that the adoption should remain in the County Court unless this court directed otherwise. He then gave leave to appeal.
The appeal raises an issue which seems to have exercised the courts for over ten years. Section 11 (1) of the Adoption Act 1976 provides:
"A person other than an adoption agency shall not make arrangements (a) for the adoption of a child, or place a child for adoption, unless -
(a) the proposed adopter is a relative of the child, or
(b) he is acting in pursuance of an order of the High Court."
Section 11 (3) provides:
"A person who -
…..
(b) contravenes subsection (1) or
(c) receives a child placed with him in contravention of subsection (1),
shall be guilty of an offence ….."
and a penalty is provided. Section 11 replaces Section 29 of the Children Act 1958. Although this is a case to which the old law applies, nothing turns on that fact and for convenience I shall refer only to the 1976 Act. The issue is if a child has been placed for adoption in contravention of Section 11, what effect does that have on the court's powers to make an adoption order and which court, if any, should make that order. In the present case it is common ground that the child concerned, who is almost 10 years old, was originally placed with the female applicant in contravention of Section 11 although it is not suggested that there was any deliberate contravention of that section. Section 11 is clearly intended to protect children. It is also referred to in Section 22. The headnote to that section says that it is concerned with "Notification to local authority of adoption application."
Section 22 (2) provides:
"On receipt of such a notice the local authority shall investigate the matter and submit to the court a report of their investigation."
While Section 22 (3) (b) provides:
"Under subsection (2), the local authority shall in particular investigate, -
…..
(b) whether the child was placed with the Applicant in contravention of Section 11."
There are other provisions in the 1976 Act which are clearly intended to protect children whose adoption is under consideration. Section 13 (1), of which the short heading is "Child to live with adopters before order is made," provides: "Where -
(a) the applicant, or one of the applicants, is a parent, step parent or relative of the child, or
(b) the child was placed with the applicants by an adoption agency or in pursuance of an order of the High Court,
an adoption order shall not be made unless the child is at least 19 weeks old and at all times during the preceding 13 weeks had his home with the applicants or one of them.
(2) Where subsection (1) does not apply, an adoption order shall not be made unless the child is at least 12 months old and at all times during the preceding 12 months had his home with the applicants or one of them."
I need not read Section 13 (3) for present purposes.
However, Section 13 (2) does not —as one of the reported cases, Re ZHH, to which I will refer later suggests —indicate that Parliament contemplated an adoption where there has been an illegal placement. Section 13 (2) covers cases, among others, where the child has, for example, been a long time with foster parents and they may subsequently wish to adopt the child.
I refer also to Section 57 of the Adoption Act 1976 which prohibits certain payments in connection with adoption.
Section 57 (1) provides:
"Subject to the provisions of this section, it shall not be lawful to make or give to any person any payment or reward for or in consideration of -
(a) the adoption by that person of a child;
(b) the grant by that person of any agreement or consent required in connection with the adoption of a child;
(c) the handing over of a child by that person with a view to the adoption of the child; or
(d) the making by that person of any arrangements for the adoption of a child."
Section 57 (2) imposes a criminal penalty for contravention of
Section 57 (1). Section 57 (3) provides:
"This section does not apply ….. to any payment or reward authorised by the court to which an application for an adoption order in respect of a child is made."
Section 24 (2) provides:
"The court shall not make an adoption order in relation to a child unless it is satisfied that the applicants have not, as respects the child, contravened section 57."
It is apparent that, whereas in the case of an illegal placement under Section 11 the Act makes no express provision as to what is to happen in relation to an adoption order, in relation to an illegal payment under Section 57, Section 24 (2) does make express provision. Section 57 (3) imposes no limitation upon the court which may authorise retrospectively the payment or reward.
I refer finally to Section 6 of the Adoption Act 1976 which is the Section headed "Duty to promote welfare of child."
"In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, the 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 and ….. give due consideration to them ….."
I mention also Section 12 which sets out the very far reaching effect which an adoption order has as to status. Approaching the matter first as one of principle without reference to authority, it is noteworthy that the Act provides no other sanction for an illegal placement than the penalty in Section 11 (3). In particular, there is no provision corresponding to Section 24 (2). Having regard to the provisions of Section 6, it cannot seriously be suggested that Parliament considered that an illegal placement, however innocent, should be an absolute bar to the adoption of a child. This would be to put a provision intended to protect children generally above the welfare of the individual child. On the other hand, it is clear that Parliament considered the matter of a placement of sufficient seriousness to justify the requirement that only the High Court can ratify in advance a placement which would otherwise be prohibited.
I now turn to the authorities, and I consider first the most recent. That is the decision of Douglas Brown J in Re Adoption Application (Non-Patrial: Breach of Procedures) [1993] 1 FLR 947. I read first paragraphs 3 and 4 of the holding in the headnote on page 948 of the report:
"(3) In considering whether the court had power to waive a breach of either s 11 or s 57, a distinction had to be made between the two sections. The language of s 11 (1) (b) which was enacted to provide for placements made in pursuance of leave in wardship proceedings, was not apt to cover retrospective authorisation of past acts. There was no power in the High Court to waive or dispense with or authorise breaches of s 11 which had already taken place, whereas it was clear from the wording of s 57 (3) that no difficulty with retrospective authorisation arose with regard to a breach under that section.
"(4) However, the court hearing an adoption application where there had been a proved breach of s 11 was not prohibited from making an order notwithstanding the absence of a statutory dispensing and retrospective power. It must take the breach into account and consider whether public policy required that the order should be refused because of the applicants' criminal conduct, while giving first consideration to the welfare of the child pursuant to s 6, following the same principles properly adopted by a court considering whether to authorise a breach of s 57."
Those findings seem to me to represent accurately the decision of Douglas Brown J in what was a very careful and reserved judgment with which I wholly agree. I can take up the judgment itself at page 955 of the report at letter C. The judge says:
"Taking first s 11, Mr Spon Smith [amicus curiae] submits that the language of s 11 (1) (b) is not apt to cover retrospective authorisation of past acts. In this I think he is plainly right. Making arrangements for adoption or placing a child for adoption are acts which are prohibited unless the person so acting is acting in pursuance of an order of the High Court. In other words, as the person makes the arrangements or places the child, he is able to point to an existing order of the High Court and say, 'there is the order, I am acting in pursuance of it' ….. There is no scope within the ordinary meaning of 'in pursuance of' for retrospective,...
To continue reading
Request your trial
-
Re A (Adoption: Placement outside Jurisdiction)
... ... Accordingly, both as a matter of language, and in light of the terms of the very section upon which the parents' case is based, it appears to me that C and T have "been placed for adoption" with Mr and Mrs A notwithstanding the fact that the placement was illegal ... 93 The point is reinforced when one turns to consider s30, which, as I have mentioned, deals with the rights and obligations of an adoption agency (and indeed a prospective adopter) in relation to the return of the child after he "has been placed with any person ... ...
-
Re B (Children) (Adoption: Removal From Jurisdiction)
...Re[1998] 2 FCR 641, [1999] Fam 128, [1999] 2 WLR 202, [1999] 1 FLR 370. G (a minor) (adoption: illegal placement), Re[1995] 3 FCR 26, [1995] 1 FLR 403, G(M) (a minor) (adoption: freeing order), Re[1997] 2 FCR 289; sub nom Re G (a minor) (adoption: freeing order) [1997] 2 All ER 534, [1997] ......