Re P (Children) (Adoption: Parental Consent)
| Jurisdiction | England & Wales |
| Judgment Date | 2008 |
| Date | 2008 |
| Court | Court of Appeal (Civil Division) |
Adoption – Placement order – Parental consent – Child’s welfare – Dispensing with consent of parent or guardian – Proper test for dispensing with consent – Dual planning for foster and adoptive placements – Whether proper exercise of power to dispense with parental consent to making of placement order where dual planning proposed – Whether dual planning a permissible use of statutory powers given to local authorities and adoption agencies – Post-adoption contact – Children Act 1989 – Human Rights Act 1998, Sch 1, Pt I, art 8 – Adoption and Children Act 2002, ss 1, 52(1)(b).
The 24-year old mother had five children, D, S, C, K and L. P was the father of D, S and C. Two of the children, S and D, were freed for adoption in January 2006 and had been adopted by a couple and had no contact with their other siblings. The youngest child was born in September 2006 and had remained in his mother’s care, under a supervision order in favour of the local authority. S and D were seriously damaged children and there was no question of the mother, or P, resuming their care. Until they were removed from their parents’ care, neither had received any, or any adequate, parenting. They had lived chaotic and unstructured lives. D and S had each had a number of placements since they were initially accommodated. In January 2007 the local authority’s adoption and permanence panel (APP) recommended that there should be a dual plan of adoption and fostering for S. The same psychiatrist advised both that contact between D and her parents should cease, and that placement orders under the 2002 Act should be sought. Accordingly, the local authority applied for placement orders in relation to both children. The judge made placement orders in respect of both children, coupled with an order that, irrespective of where they were living, they should have contact with each other on at least seven occasions in each year. The mother appealed against the placement orders. The issues on the appeal were: (i) what was the proper test for dispensing with parental agreement to the making of a placement order under s 52(1)(b) of the 2002 Act: (ii) whether it was a proper exercise of the power under s 52(1)(b) to dispense with parental consent to the making of a placement order, when the adoption agency in question proposed to conduct a search for both fostering and adoptive placements, and, depending on the outcome of the search, might well place the children concerned in separate long term foster placements if either or both proved unadoptable, and neither could be
placed with the other; and (iii) whether ’dual planning’, ie the simultaneous search for both long term foster placements and adoptive parents, was a permissible use of the powers given to local authorities and adoption agencies under the Children Act 1989 and the 2002 Act. A further issue arose relating to post-adoption contact, and the role of the court in ensuring that such contact took place.
Held – (1) Section 1(2) of the 2002 Act, in contrast to s 1(1) of the 1989 Act, required a judge considering dispensing with parental consent in accordance with s 52(1)(b) to focus on the child’s welfare ‘throughout his life’. This emphasised that adoption, unlike other forms of order made under the 1989 Act, was something with lifelong implications. A judge exercising his powers under s 52(1)(b) had to be satisfied that the child’s welfare now, throughout the rest of his childhood, into adulthood and indeed throughout his life, required that he or she be adopted. Secondly, it was important to bear in mind the more extensive ‘welfare checklist’ to be found in s 1(4) of the 2002 Act as compared with the ‘welfare checklist’ in s 1(3) of the 1989 Act; in particular, the provisions of s 1(4)(c)—which specifically directed attention to the consequences for the child ‘throughout his life’—and s 1(4)(f). This all fed into the ultimate question under s 52(1)(b): did the child’s welfare throughout his life require adoption as opposed to something short of adoption? In the instant case, the judge had done exactly what was required of the court in dispensing with the mother’s consent. His directions to himself on the law were immaculate. He had followed the statutory language. He had applied the checklist in s 1(4) and had applied the proper test for dispensing with parental agreement in the making of a placement order under s 52(1)(b) of the 2002 Act. Furthermore, art 8 was engaged; and it was elementary that, if art 8 was not to be breached, any intervention under Pt IV or Pt V of the Children Act 1989, and any placement or adoption order made without parental consent in accordance with s 52(1)(b) of the 2002 Act, had to be proportionate to the legitimate aim of protecting the welfare and interests of the child; Re S (a child) (adoption order or special guardianship order)[2007] 1 FCR 271 applied.
(2) A combination of the tests identified in s 1(1) and 1(6) of the 2002 Act in particular (which had, of course, to be considered within the framework of s 1 taken as a whole) justified the local authority’s pragmatic approach to the question of the dual approach. A local authority could be ’satisfied that the child ought to be placed for adoption’ within the meaning of s 22(1)(d) of the 2002 Act even though it recognised the reality that a search for adoptive parents might be unsuccessful and that, if it was, the alternative plan would have to be for long-term fostering. The wording, after all, was ’ought to be’ not ’will be’. That being so there could be no objection in principle to dual planning in appropriate cases. In the instant case, the local authority’s dual planning approach for D and S was legitimate, and the judge was entitled to embrace it. He was entitled, applying s 1 of the 2002 Act, to take the view that adoption was in the best interests of both
children, but that if suitable adoptive placements could not be found then the children should be placed, separately or together, in foster care. The 2002 Act envisaged the court exercising its powers to make contact orders post-adoption, where such orders were in the interests of the child concerned. In s 46(6) of the 2002 Act, Parliament had specifically directed the court to consider post-adoption contact, and in s 26(5) Parliament had specifically envisaged an application for contact being heard at the same time as an adoption order was applied for.
(3) In the circumstances of the instant case, where the relationship between D and S was of fundamental importance and had to be maintained, even if the children were placed in separate adoptive placements, or if one was adopted and the other fostered, it was not a proper exercise of the judicial powers given to the court under the 2002 Act to leave contact between the children themselves, or between the children and their natural parents, to the discretion of the local authority and/or the prospective carers of D and S, be they adoptive parents or foster carers. It was the court which had to make the necessary decisions if contact between the siblings was in dispute, or if it was argued that it should cease for any reason. The stakes in the instant case were sufficiently high to make it appropriate for the court to retain control over the question of the children’s welfare throughout their respective lives under ss 1, 26, 27 and 46(6) of the 2002 Act; and, if necessary, to make orders for contact post-adoption in accordance with s 26 of the 2002 Act, under s 8 of the 1989 Act.
Accordingly, the appeal would be dismissed.
Per curiam. It will not be sufficient simply for a judge to use the words of s 52(1)(b) and s 1(4) of the 2002 Act as a mantra. Equally, the judge is the opposite of a ’rubber stamp’. Self-evidently, careful thought must be shown to have gone into the process. The judge must make findings of fact which properly support the need to make placement orders and dispensation of parental agreement to them. In short, the underlying facts, properly analysed, must support the judicial conclusion. If they do not, the placement order may well be called in question.
Cases referred to in judgmentA (a child) (adoption), Re[2007] EWCA Civ 1383, [2008] 1 FCR 55.
B (a minor) (rejection of expert evidence), Re[1996] 3 FCR 272, [1996] 1 FLR 667, CA.
B (children) (care: interference with family life), Re[2003] EWCA Civ 786, [2004] 1 FCR 463, [2003] 2 FLR 813.
C (a minor) (adoption order: conditions), Re [1988] FCR 484, [1988] 1 All ER 705, [1989] AC 1, [1988] 2 WLR 474, [1988] 2 FLR 159, HL.
C (a minor) (adoption: parental agreement), Re[1994] 2 FCR 485, [1993] 2 FLR 260, CA.
C and B (children) (care order: future harm), Re[2000] 2 FCR 614, [2001] 1 FLR 611, CA.
D (adoption: parent’s consent), Re [1977] 1 All ER 145, [1977] AC 602, [1977] 2 WLR 79, HL.
Down Lisburn Health and Social Services Trust v H[2006] UKHL 36, [2007] 1 FLR 121.
EN (a child) (special guardianship order), Re[2007] EWCA Civ 264, [2008] 2 FCR 229.
F (a child) (placement order), Re[2008] EWCA Civ 439, [2008] 2 FCR 93.
G (children: contact), Re[2002] EWCA Civ 761, [2002] 3 FCR 377, [2003] 1 FLR 270.
Hasse v Germany[2005] 3 FCR 666, ECt HR.
J v C [1969] 1 All ER 788, [1970] AC 668, [1969] 2 WLR 540, HL.
Johansen v Norway (1996) 23 EHRR 33, [1996] ECHR 17383/90, ECt HR.
O (a child) (supervision order: future harm), Re[2001] EWCA Civ 16, [2001] 1 FCR 289, [2001] 1 FLR 923.
O (minors) (care or supervision order), Re[1997] 2 FCR 17, [1996] 2 FLR 755.
P, C and S v UK[2002] 3 FCR 1, [2002] 2 FLR 631, ECt HR.
P-B (a child) (placement order), Re[2006] EWCA Civ 1016, [2007] 3 FCR 308, [2007] 1 FLR 1106.
R (a child) (adoption: contact), Re[2005] EWCA Civ 1128, [2007] 1 FCR 149, [2006] 1 FLR 373.
S (a child) (adoption order or special guardianship order), Re[2007] EWCA Civ 54, [2007] 1 FCR 271, [2007] 1 FLR 819.
T (a minor) (contact after adoption), Re[1995] 2 FCR 537, [1995] 2 FLR 251, CA.
T (children: placement order), Re[2008] EWCA Civ 542, [2008]...
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