Re J (A Child) (Adopted Child: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 27 May 2010 |
| Neutral Citation | [2010] EWCA Civ 581 |
| Date | 27 May 2010 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2009/2395 |
[2010] EWCA Civ 581
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE OXFORD COUNTY COURT
17/2008 (Oxford County Court)
His Honour Judge Corrie
Before: The Master of the Rolls
Lord Justice Moses
and
Lord Justice Munby
Case No: B4/2009/2395
Mr Gillon Cameron (instructed by Oxford County Council) for the Appellant
Mr John Vater (instructed by Oxford Law Group) for the First Respondent (the natural mother)
Mr Nicholas Davies (instructed by Whetter Duckworth Fowler) for the Second Respondent (the natural father)
Mr Michael Trueman (of Truemans) for the Third Respondent (the child)
Hearing date: 7 May 2010.
Lord Neuberger of Abbotsbury MR: This is the judgment of the court to which all its members have contributed.
This is an appeal (pursuant to permission granted by Wilson LJ on 21 December 2009) from an order made by His Honour Judge Corrie on 28 July 2009. The proceedings relate to a little girl, J, born in January 2007, who was the subject of an adoption order which had been made by the same judge on 7 April 2009. The question which Judge Corrie had to determine at the hearing which is the subject of this appeal was whether, as the natural parents wished, there should be an order requiring the adoptive parents to provide them annually with a photograph of J; or whether, as the local authority, the adoptive parents and J's children's guardian contended, rather than the natural parents being supplied with a copy of the photograph, the adoptive parents should make the photograph available for viewing by the natural parents at the local authority's offices. Judge Corrie decided in favour of the natural parents.
The question may seem a very narrow one but it has to be remembered that, in the very delicate and sensitive context of adoption, issues such as this are profoundly important in human terms. The case also raises again the equally delicate question as to how far the court can or should go in imposing on adoptive parents obligations which they may be reluctant to assume voluntarily.
We refer for convenience and clarity to the adoptive parents, but it must be borne in mind throughout that the effect of the adoption order is that as a matter of law they are now, and were at the date of the hearing before Judge Corrie in July 2009, J's parents. Conversely, the natural parents are, as a matter of law, no longer her parents and have been stripped of their parental responsibility. Section 46(2)(a) of the Adoption and Children Act 2002 provides that:
“The making of an adoption order operates to extinguish … the parental responsibility which any person other than the adopters … has for the adopted child immediately before the making of the order.”
Section 67 of the 2002 Act relates to the ‘Status conferred by adoption’. Section 67(1) provides, so far as material for present purposes, that:
“An adopted person is to be treated in law as if born as the child of the adopters …”
Section 67(3)(b) provides so far as material that:
“An adopted person … is to be treated in law … as not being the child of any person other than the adopters …”
And it is important to remember that this is not just some legal fiction. As Thorpe LJ said in In re J (Adoption: Non-patrial) [1998] INLR 424 at page 429, the result of adoption is “the creation of the psychological relationship of parent and child with all its far-reaching manifestations and consequences.”
Given that by the date of the hearing in July 2009, J had been adopted, the jurisdiction Judge Corrie was exercising was no longer that conferred by the 2002 Act. In particular he was not exercising jurisdiction under either section 26 or section 46(6) of the 2002 Act, but rather that conferred by section 8 of the Children Act 1989. So much is clear from section 26(5) and is, of course, recognised in the authorities: see Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at paras [144], [154]. It follows from this that the relevant welfare ‘checklist’ which Judge Corrie had to apply was the checklist in section 1(3) of the 1989 Act and not that in section 1(4) of the 2002 Act: see section 1(4) of the 1989 Act and contrast section 1(7) of the 2002 Act.
What are the principles which, in relation to an adopted child, should guide the exercise of this jurisdiction? The overarching principle is, of course, that laid down in section 1(1) of the 1989 Act, re-stating a principle which has been part of the statute law since 1925, namely that “the child's welfare shall be the court's paramount consideration.” However, the courts have long recognised that it will not usually be in the best interests of an adopted child to impose on her adoptive parents an obligation in relation to contact which they are unwilling to agree to. Indeed, the imposition of such an obligation is extremely unusual. In In re C (A Minor) (Adoption Order: Conditions) [1989] AC 1 at page 18, Lord Ackner said that:
“No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree.”
He explained:
“To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation.”
In Re T (Adoption: Contact) [1995] 2 FLR 251, this court held that, as Butler-Sloss LJ put it (at page 255), the arrangements for contact should not be “imposed” upon the adoptive parents but should be “left to their good sense so that they could be trusted to do what they believe to be in the best interests of their daughter.” She went on to indicate (at page 256) that the court could intervene in future and make an order if the adoptive parents were to behave unreasonably. In Re T (Adopted Children: Contact) [1995] 2 FLR 792, Balcombe LJ indicated (at page 798) that in that event the adoptive parents need not fear that their reasons when given would be subjected to what he called “critical legal analysis.” He added:
“The judges who hear family cases are well aware of the stresses and strains to which adopters … are subject and a simple explanation of their reasons in non-legal terms would usually be all that is necessary.”
In Re R (Adoption: Contact) [2005] EWCA Civ 1128, [2006] 1 FLR 373, Wall LJ referred (at para [47]) to the fact that “matters have moved on very substantially since Re C” and (at para [48]) to the “clear change of thinking” demonstrated by the 2002 Act. His conclusion, nonetheless, was (para [45]) that “under the jurisprudence which has developed, contact orders in adoption proceedings are of themselves unusual.” We read that as a reference to the position even where there is no opposition from the adoptive parents. He went on (para [49]) to consider the position where the adoptive parents do not agree:
“the jurisprudence I think is clear. The imposition on prospective adopters of orders for contact with which they are not in agreement is extremely, and remains extremely, unusual.”
Wall LJ returned to the topic in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, referring (at para [146]) to what he had earlier said in Re R. We do not read the subsequent discussion by Wall LJ (at paras [147]-[154]) of the implications of sections 26, 27 and 46(6) of the 2002 Act as affecting the application of Re R in a case such as this, where the adoption order has already been made and where the application is accordingly being made under the 1989 Act.
It follows, in our judgment, that the task for Judge Corrie was to come to a decision applying the welfare ‘checklist’ in section 1(3) of the 1989 Act but always bearing in mind the jurisprudence as explained by Wall LJ in Re R.
At the hearing in July 2009 Judge Corrie had the benefit of position statements setting out the respective positions of the adoptive parents, of the Official Solicitor as guardian ad litem of the natural mother and of J's children's guardian. In their position statement, which it was said had been approved by them and set out their “clear view on this matter”, the adoptive parents said this:
“The parents have considered the birth father's application for contact and take the view that it would not be appropriate for either him or the birth mother to keep photos of the child. As J's parents they do not agree to this. This is a fundamental issue and a right which they assert as J's parents. Further, they are concerned about the child's whereabouts being discovered by the parents. In particular, they are concerned that due to the child's ethnic background, they are potentially easier to identify should, for example, either of the birth parents put the pictures on the internet.
… the parents feel that they have complied with and accepted the birth parents’ requests and not contested them until now. They feel they have been particularly understanding of the birth mother's issues and as a consequence have not sought to accelerate the pace of these adoption proceedings, which have been lengthy. Having said that, the...
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