Re P (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Briggs,Lord Justice Moore-Bick |
| Judgment Date | 15 August 2014 |
| Neutral Citation | [2014] EWCA Civ 1174 |
| Docket Number | Case No: B4/2014/0736 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 August 2014 |
[2014] EWCA Civ 1174
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
HHJ Jones
WX13200069
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moore-Bick
Lord Justice McFarlane
and
Lord Justice Briggs
Case No: B4/2014/0736
Mr Robert Hornby (instructed by Humphrys & Co Solicitors) for the Appellant
Hearing date: 26 June 2014
This appeal concerns a step-parent adoption. It is some years since the Court of Appeal considered the approach to step-parent adoption applications. In the light of the recent flow of cases from the Supreme Court and the Court of Appeal relating to non-consensual adoption in the context of public law child protection proceedings (the two principal decisions are: Re B (Care Proceedings: Appeal) [2013] UKSC 33; [2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146; [2014] 1 FLR 1035) the present appeal presents a timely opportunity to consider how an adoption application brought by a child's step-parent is to be approached.
The appeal arises from a determination by His Honour Judge Gareth Jones, sitting in Wrexham County Court, on 29 th January 2014 in which the judge dismissed a step-father's application to adopt his two step-children. Permission to appeal was granted by Ryder LJ and we heard the appeal on 26 th June 2014. At the conclusion of that hearing we announced our decision, which was to allow the appeal and to make the adoption orders. In view of the wider issues raised, we indicated that our judgments would be handed down in written form at a later date.
Factual background
The two children are, firstly, a boy, D, born 13 th May 2000 and therefore now aged 14 years and his half-sister, a girl, A, born 26 th June 2002 who therefore had her twelfth birthday on the day of the appeal hearing. The children's mother is a Polish national who came to the United Kingdom in 2007 together with the two children. The children have different fathers. Both fathers are Polish. D's father is named as BZ on his birth certificate. The mother and BZ were never married. A's father is named as MP on her birth certificate. The children's mother was married to MP in 2002, but they separated in 2004 and were divorced in 2005.
D's father has apparently had little or no contact with his son since his separation from the children's mother in or around 2002. So far as A is concerned, the last contact with her father occurred some time in 2005; that is nine years ago when A will have been around the age of 3 years.
In 2007 the mother was apparently given permission by the court in Poland to relocate with the children permanently to the UK.
The applicant for these adoption orders is Mr TMI. He is a British national. Mr TMI formed a relationship with the children's mother soon after her arrival in England in 2007. Since that time, some seven years ago, the couple have lived together with the children as a settled family unit.
The adoption application by Mr TMI was issued on 31 st January 2013. It is made with the full support and consent of the children's mother.
In the course of his judgment the judge necessarily had to consider whether or not either of the two fathers had parental responsibility. He was hampered by the fact that there was no expert evidence and the only source of information as to the state of Polish law on this topic came from the mother, who is not a qualified lawyer. The judge held that, plainly, A's father, having been married to the mother, had parental responsibility for A.
On the basis that, in respect of a birth registered in 2000, under English law, D's father would not share parental responsibility for D in the absence of a court order, the judge assumed that the situation would be similar in Poland and held that D's father did not have parental responsibility.
In hearing this appeal, we are in the same position as the learned judge and I too approach this matter on the basis that D's father does not have parental responsibility whereas A's father does.
Step-parent adoptions: the statutory context
The statutory scheme contained within Adoption and Children Act 2002 ["ACA 2002"] makes no distinction between a step-parent adoption order and any other adoption order. The statutory scheme does, however, establish two separate routes to adoption. The first route, which is the conventional model for adoption proceedings, involves the court considering the question of parental consent at the time that it is determining whether or not to make the adoption order. This first route is given the label "the first condition" in ACA 2002, s 47.
The second route to adoption, which was first introduced by the 2002 Act, applies only to children who are, or have been, subject to child protection proceedings under Part 4 of the Children Act 1989 ["CA 1989"]. This second route, referred to as "the second condition" in ACA s 47, only applies to a child who has been placed for adoption by an adoption agency, either with the consent of each parent or guardian, or under the terms of a placement for adoption order made under ACA 2002, s 21. The relevant statutory provisions are as follows. ACA s 49 proscribes the categories of applicant:
"(1) An application for an adoption order may be made by—
(a) a couple, or
(b) one person,
but only if it is made under section 50 or 51 and one of the following conditions is met."
The relevant provisions of ACA 2002, ss 50 and 51 are as follows:
"50. Adoption by couple
(1) An adoption order may be made on the application of a couple where both of them have attained the age of 21 years.
(2) An adoption order may be made on the application of a couple where—
(a) one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and
(b) the other has attained the age of 21 years.
51. Adoption by one person
(1) An adoption order may be made on the application of one person who has attained the age of 21 years and is not married.
(2) An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted…"
In the present case Mr TMI, who is the sole applicant for adoption, is not married to the children's mother and it is therefore necessary to turn to the definition of "the partner of a parent of the person to be adopted" in section 51(2). ACA 2002, s 144 (7) states:
"For the purposes of this Act, a person is the partner of a child's parent if the person and the parent are a couple but the person is not the child's parent."
Section 144 (4) states:
"In this Act, a couple means—
(a) a married couple, or
(b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship"
For the sake of completeness, although of no application in the present case, s 144 (5) and (6) exclude certain relatives as follows:
"(5) Subsection (4)(b) does not include two people one of whom is the other's parent, grandparent, sister, brother, aunt or uncle.
(6) References to relationships in subsection (5)—
(a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for adoption, and
(b) include the relationship of a child with his adoptive, or former adoptive, parents,
but do not include any other adoptive relationships."
I have already described the two possible routes to adoption in ACA 2002, s 47. The relevant parts of s 47 are as follows:
"(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).
(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) that the parent's or guardian's consent should be dispensed with.
(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.
(4) The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(b) either—
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave."
The third condition referred in s 47(1) is set out in s 47(6) and only applies to Scotland and Northern Ireland.
The present case, which does not arise in any respect out of public law child protection proceedings, falls to be considered entirely within the compass of "the first condition" in s 47(2). In short, at the time of consideration of the adoption application, the court must be satisfied that each parent or guardian of the child either consents to the making of the adoption order, or that individual's consent should be dispensed with. In this context a "parent" means "a parent having parental responsibility" [ACA 2002, s...
To continue reading
Request your trial
-
Re JL and AO (Babies relinquished for adoption)
...does not apply to all adoptions is demonstrated by the decision in Inre P (Adoption: Step-parent’s Application) [2014] EWCA Civ 1174; [2015] 1 WLR 2927, in which theCourt of Appeal considered the approach to be adopted to step-parent adoptions in the light ofthe Supreme Court’s decision in ......
-
Re L (A Child: Step-Parent Adoption)
...to and did not therefore refer in her ex tempore judgment to: (i) the leading domestic case on step-parent adoptions Re P (a Child) [2014] EWCA Civ 1174 or the European case of Söderbäck v Sweden [1999] 2 FLR 250; or (ii) the provisions of s.46(6) Adoption and Children Act 2002 4 Having he......
-
Re RA (Baby Relinquished for Adoption: Case Management)
...4 WLR 104extent, assessment of other potential carers is proportionate (see In re P (A Child) (Adoption: Step-parent’s Application) [2014] EWCA Civ 1174; [2015] 1 WLR 2927).35 In this case, the local authority proceeded initially on the basis that there was nofamily member who could look af......
-
A Health and Social Care Trust and A Mother and A Father in the matter of FD (A Female Child aged 2 and 1/2 years)
...J distinguished Re B relying on the Strasbourg court in Soderbank v Sweden (1998) 29 EHRR 95 and the judgment of McFarlane LJ in Re D [2014] EWCA Civ 1174, particularly at [47]: “By way of example, in a child protection case where it is clear that rehabilitation to the parents is not compat......