Re Q (A Child) (Adoption: Welfare Requirements)
| Jurisdiction | England & Wales |
| Judgment Date | 2012 |
| Year | 2012 |
| Date | 2012 |
| Court | Court of Appeal (Civil Division) |
Adoption – Test – Requirements of welfare – Mother and father Muslims from different cultures – Father being married to another woman – Parents’ relationship being kept secret in bid to avoid repercussions from family members – Mother approaching social services with view to having child adopted at birth – Child being placed with and forming attachment to prospective adopters – Father claiming mother had informed him that child had died – Father subsequently contacting social worker and seeking residence order – Judge holding that child’s welfare requiring adoption – Father appealing against adoption order – Whether judge erring – Adoption and Children Act 2002, ss 1, 52(1)(b).
The parents of Q were both Muslims, but their cultures differed. Although the father was already married to another woman (W) when he met the mother, W was not living in the United Kingdom at that time. The relationship between the parents was kept secret from the majority of the mother’s family due to her belief that both parents would face repercussions if the match were made public. The mother’s pregnancy was confirmed in 2010 when she was already about 23 weeks pregnant. She approached social services with a view to having the baby adopted at birth, stating that she was scared that her father (GF) would hurt her and that the family would reject her if they found out about the pregnancy. Social services initiated child protection proceedings; their assessment was that the risk of physical harm to the mother and baby was high. The mother was offered protection in a refuge but declined it and remained living at home, where she wore loose fitting clothes to hide her pregnancy. The mother was discharged from hospital within hours of the birth, leaving Q in the care of nursing staff. After three days, Q was placed in a short-term placement whilst an adoptive placement was sought. Social services proceeded with the formalities on the basis that she had been relinquished by the mother, who, in due course, gave written consent to her placement pursuant to s 19 of the Adoption and Children Act 2002 and, under s 20 of that Act, to the making of a future adoption order. Q was placed with Mr and Mrs A in December 2010. They came from the same country as the mother (although not the same community) and were also observant Muslims. Q quickly formed a deep attachment to them. On 15 February 2011, the father contacted Q’s social worker, stating that he was the father of a child born to the mother and
enquiring what had happened to the child. He claimed that the mother had called him in summer 2010 to tell him that the baby had died and that he had since made a number of enquiries without success. He subsequently sought a residence order in relation to Q. Although the social worker was impressed by his and W’s care of their own baby, who had been born shortly after Q, the full social work report referred to the degree of attachment between Q and the adopters, to the problems of disrupting that attachment, and to matters of concern in relation to the father and W. The father applied for leave to instruct a child and adolescent psychiatrist to report on attachment, but his application was refused, principally on the basis that it would delay the hearing. The judge took the view that the social worker and the guardian were qualified to deal with the issue of attachment and that a psychiatric report would not assist the court sufficiently to justify an adjournment. There was no appeal against that case management decision. At the final hearing, the local authority, the mother and the adopters invited the judge to make an adoption order, whilst the guardian supported the father’s case for a residence order. The judge found that there were no physical risks associated with Q’s adoption, but that there would be ‘a very significant risk’ if Q were to live with the father and W since that placement could alert the mother’s family and provoke action to preserve its ‘honour’. She also found that Q had quickly made a deep attachment to Mr and Mrs A and that there was a significant risk that she would not make an adequate transfer of attachment to the father and W. She considered that Q would be at risk of emotional harm in the father’s care due, inter alia, to a lack of empathy and insight, and tensions in W’s position in caring for a child which was not her own. The judge accordingly held that, in all the circumstances, Q’s welfare throughout her life required her adoption. The father appealed against the adoption order, submitting that the judge had erred in holding that the case did not involve family life within the meaning of art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Pt I of Sch 1 to the Human Rights Act 1998). He alleged, in the alternative, that there was private life, which required protection under art 8, with the consequence that adoption of Q against his wishes was permissible only in ‘exceptional’ circumstances of ‘overriding necessity’. It was also contended, inter alia, that the judge had erred in her application of the welfare checklist and in refusing to allow the instruction of a child and adolescent psychiatrist. The court considered s 52 of the 2002 Act, which provided ‘(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that … (b) the welfare of the child requires the consent to be dispensed with’.
Held – Authority established that the word ‘requires’ in s 52(1)(b) of the 2002 Act accurately captured the essence of the Strasbourg jurisprudence on necessity, and that there was no enhanced welfare test to be applied in cases
of adoption. It was clear that, in the instant case, the judge had correctly used the word ‘requires’ in its true statutory and Convention-compliant sense. There was, in that respect, no error of law. She had applied the test of whether Q’s welfare throughout her life required her adoption. That was the test which would have been applicable as a matter of domestic law if the father had had parental responsibility and, more to the point, the test which would have been applicable as a matter of Convention law if his rights under art 8 had been engaged. In the final analysis, the judge had thus assessed the father’s case by reference to what his counsel claimed to be the correct test. It followed that nothing turned on the question of whether or not the father’s art 8 rights were engaged on either of the bases suggested. Futhermore, the judge had not misunderstood or misapplied the welfare checklist. She had considered whether adoption was demanded rather than being merely reasonable or desirable; that approach took full and proper account of any possible right of the father or Q to family or private life. The judge had proceeded to assess whether Q’s welfare required the making of an adoption order having regard to all the considerations set out in s 1 of the 2002 Act. In the particular circumstances of the instant case, she had rightly regarded the risk of physical harm to Q and the mother as being of major importance; the evidence in that regard was compelling. She had addressed the issues of attachment and relationships with particular concern. She had evaluated the conflicting opinions of the social worker and the guardian and assessed, in light of all the evidence, the risk of moving Q from Mr and Mrs A to the father and his new family. She could not be criticised for refusing to adjourn the case to permit the instruction of a child and adolescent psychiatrist in the light of the expertise of the professionals appearing before her, their united opposition to that proposal and the delay it would inevitably have caused. She had had regard to the level of care and warmth offered by the father and his wife to their own child and to the importance of natural ties, but had concluded that there was a high likelihood that they would feel differently about Q from their own child, that they were unrealistic in their approach to the integration of Q into their family and that there was a significant risk that Q would not make an adequate transfer of attachment. Those findings were unimpeachable. The judge had also had careful regard to cultural issues and had rightly concluded that under Islamic law and tradition there would be no long-term harmful consequence in adoption. In summary, she had anxiously considered all aspects of Q’s needs and welfare and had concluded that adoption was indeed required. It could not therefore be said that she was plainly wrong, with the result that the appeal had to be dismissed (see [58]–[62], [64]–[70], below); Re P (children) (adoption: parental consent)[2008] 2 FCR 185 considered.
Cases referred to in judgmentA (a child) (fact-finding: speculation), Re[2011] EWCA Civ 12, [2011] 1 FCR 141, [2011] 1 FLR 1817.
Anayo v Germany [2011] 1 FLR 1883, ECt HR.
C (a child) (adoption: duty of local authority), Re[2007] EWCA Civ 1206, [2007] 3 FCR 659, [2008] Fam 54, [2008] 3 WLR 445, [2008] 1 FLR 1294.
C and B (children) (care order: future harm), Re[2000] 2 FCR 614, [2001] 1 FLR 611, CA.
Johansen v Norway (1996) 23 EHRR 33, [1996] ECHR 17383/90, ECt HR.
P (children) (adoption: parental consent), Re[2008] EWCA Civ 535, [2008] 2 FCR 185, [2008] 2 FLR 625.
Piglowska v Piglowski[1999] 2 FCR 481, [1999] 3 All ER 632, [1999] 1 WLR 1360, [1999] 2 FLR 763, HL.
AppealThe father, who lacked parental responsibility, appealed against the decision of Parker J on 18 July 2011 to make an adoption order in favour of Mr and Mrs A in relation to his biological child, Q, the mother having consented to the adoption. The facts are set out in the judgment of Munby LJ.
Alison Ball QC and Gina Allwood for the father.
Judith Rowe QC and Judy Claxton for the adopters.
Philip Bowen for the local...
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