Re S (Adopted Child: Contact)
| Jurisdiction | England & Wales |
| Judgment Date | 1993 |
| Date | 1993 |
| Year | 1993 |
| Court | Family Division |
THORPE, J
Adoption – adopted child – parent seeking leave to apply for contact. – application to be transferred to High Court – Official Solicitor to be brought in – procedure – factors to be taken into account.
In 1988, when the child was a month old, he was taken into care. A full care order was made. The mother last saw the child in July 1989 when he was placed with prospective adopters. In June 1990 an adoption order was made in a county court. No condition to allow the mother contact was included in the adoption order. In January 1993 the mother applied to the county court for leave to apply for contact with the child. The Judge transferred the application to the High Court and invited the Official Solicitor to act as amicus curiae. At the hearing in the High Court it was submitted that the mother did not need leave to apply as she was a parent.
Held – (1) By s 39(2) of the Adoption Act 1976 an adopted child was to be treated in law as if he were not the child of any person other than the adopters. Therefore, the natural mother of an adopted child required leave to apply for contact. On such an application, the proper course if the application was not made in the High Court was to transfer the case to the High Court. Further, the Official Solicitor should be invited to act as amicus curiae and as respondent to the application. Notice should be given to the local authority who were parties to the adoption proceedings. No notice should be given to the adopters
at an early stage to avoid causing them unnecessary anxiety. They should be given notice only if the court found that the applicant had a prima facie case.
(2) The question of contact by a natural parent with an adopted child was an issue to be raised prior to the perfection of the adoption order. That issue, even if confined to indirect contact such as the sending of photographs of the child, should not be re-opened unless there was some fundamental change in the circumstances. Adoption orders were intended to be permanent and final. Therefore, the mother's application for leave would be refused.
Per curiam: In the rare case where a Judge was satisfied that there was sufficient case demonstrated to necessitate a notice to the adoptive parents, that notice should not be served through the court but left to the Official Solicitor to communicate.
Statutory provisions referred to:Adoption Act 1976, ss 12(6), 39(2) and (6) and 51A.
Children Act 1989, s 10(4)(a) and (9).
Family Proceedings Rules 1991, r 4.3.
Cases referred to:C (A Minor) (Adoption Order: Wardship), Re [1988] FCR 484; [1989] AC 1; [1988] 2 WLR 474; [1988] 1 All ER 705.
JR v Merton London Borough[1992] 2 FCR 174; sub nom Re A (Minors) (Residence Orders: Leave to Apply) [1992] Fam 152; [1992] 3 WLR 422; [1992] 3 All ER 872.
O (A Minor) (Wardship: Adopted Child), Re [1978] Fam 196; [1977] 3 WLR 725; [1978] 1 All ER 145.
Rodger Hayward Smith, QC for the mother.
Robin Spon-Smith for the Official Solicitor.
MR JUSTICE THORPE.This is an application for leave to issue a contact and specific issue order application brought by a natural mother in respect of a child who has been adopted in law.
The relevant chronology is as follows. The child was born on 20 August 1988. On 21 Sepember 1988 he was removed into care under the authority of a place of safety order. Six days later an interim care order was made. On 24 October 1988 he became a ward of court. On 16 December 1988 a full care order was made and he was dewarded. His mother saw him last in July 1989, the month in which he was placed with the family who have subsequently adopted him.
Notice of termination of access was given to the mother on 17 August 1989. Against that notice she appealed, but the appeal was adjourned to await the outcome of an adoption application which had by then been...
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