Re S (A Child) (Adoption: Special Guardianship)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 06 February 2007 |
| Neutral Citation | [2007] EWCA Civ 54 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2006/1657 |
[2007] EWCA Civ 54
Lord Justice Thorpe
Lord Justice Tuckey and
Lord Justice Wall
Case No: B4/2006/1657
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HH Judge Kushner QC
Manchester District Registry
Royal Courts of Justice
Strand, London, WC2A 2LL
Catherine Shelley (instructed by Salt Veeder—Solicitors) for the Appellant
Yvonne Healing (instructed by Woodcock & Sons – Solicitors) for the 1 st Respondent
Richard Humphrys (instructed by Howarths & Maitland—Solicitors) for the 2nd Respondent
Bury Metropolitan Borough Council – 3 rd Respondent (not represented)
Alan Cryne (Solicitor for the Child/High Court Advocate) (of Temperley Taylor – Solicitors) for the 4 th Respondent
This is the judgment of the court. It is a case to which reporting restrictions apply and any report of the judgment must not identify any of the parties or the child concerned, whether by name, location or otherwise.
Explanatory introduction
The judgment in this appeal, and the judgments in the two cases of Re AJ [2007] EWCA Civ 55 and Re MJ [2007] EWCA Civ 56, all address the same question, which can be simply stated. Should the children concerned be adopted, or should the prospective adopter(s) in each case be appointed special guardians under section 14A of the Children Act 1989 (“the 1989Act”), as inserted by section 115 of the Adoption and Children Act 2002 (“the 2002 Act”)?
Each of the three appeals was heard by a different constitution and on a different date. Only one member of the court (Wall LJ) sat in each constitution. In two of the cases, the question of adoption (and in particular the necessity of dispensing with parental agreement) falls to be considered under the now repealed provisions of the Adoption Act 1976 (the 1976 Act). Nonetheless, and because this is the first time that the question identified in paragraph 2 above has reached this court, all five members of the court involved in the three appeals take the view that they present an opportunity for this court (i) to consider the underlying principles to be applied in making one or other of the two orders; and (ii) to give guidance to courts of first instance on the proper approach in such cases.
Each judgment, accordingly, is a judgment of the court. In addition, each member of each constitution has read, contributed to and expresses agreement with the commentary on the statutory provisions and general considerations, which we set out in this judgment at paragraphs 40 to 77 below, and which should be read as part of each of the other judgments. Given the importance and likely prevalence of the question in adoption, care and private law proceedings, we have also taken the opportunity to show the three judgments to the President, who has authorised us to say that he too agrees with that commentary.
The historical background
As is to be expected, there is a scholarly and informative chapter (chapter 17) on the legal adoption of children between 1900 and 1973 in Professor Stephen Cretney's magisterial history: Family Law in the Twentieth Century (2003). The chapter concludes with a discussion of the Houghton Report (Cmnd 5107, 1972) ( Houghton) which Professor Cretney, at page 624, describes as:
…..an impressive document, not least because it marked (for the first time in an official inquiry) an awareness that adoption could not sensibly be kept in isolation. In reality, adoption was merely one legal technique for dealing with the future of children whose birth parents were not going to provide their homes throughout their childhoods.
During the course of his discussion of Houghton, Professor Cretney comments (pp 626 /7): —
The Committee saw adoption as an institution which could enable a child to 'achieve permanent security in a substitute home with a couple fully committed to fulfilling parental responsibilities'. But it was equally insistent that adoption was often only one of several possible solutions In particular, the Committee observed that adoption might be used to sever strong bonds with the birth family (or some members of it) and it was especially concerned by the increased use of adoption by parents, step-parents and other relatives:
Adoption by relatives severs in law, but not in fact, an existing relationship of blood or affinity, and creates an adoptive relationship in place of the natural relationship which in fact, though not in law, continues unchanged. In most cases the adopting relatives are already caring for the child and will continue to do so whether or not they adopt him; and adoption by relatives can be particularly harmful when it is used to conceal the natural relationship'. ( Houghton paragraph 97).
The Committee recommended procedures to discourage the routine use of adoption in such cases, and the extension of guardianship law to provide a legal institution more consonant with the factual situation.
Professor Cretney's footnote refers to paragraphs 106–115 of Houghton, and notes that the Committee considered guardianship might also be appropriate for foster parents in some circumstances – see Houghton paragraphs 120–122.
Custodianship under the Children Act 1975
The Children Act 1975, which followed the publication of Houghton, introduced the concept of custodianship. Professor Cretney addresses this in chapter 20 of Family Law in the Twentieth Century in the course of a review of child care legislation between 1969 and 1989. During the course of his discussion of the Children Act 1975, Professor Cretney comments (at pp 705–6): —
The legislation provided the statutory framework for an alternative legal institution ('custodianship') to provide legal security for those providing long-term family care for a child. Not only foster-parents but step-parents and relatives who might otherwise have opted for adoption were amongst those at whom this new procedure was targeted.
A footnote comments that the provisions in the Act relating to custodianship were elaborate and were little used. This was, no doubt, due, additionally, to the fact that they were not implemented until 1988, although the provisions of the Children Act 1975 relating to adoption itself were consolidated in the 1976 Act.
The origins of special guardianship
Following the implementation of the 1976 Act, further substantive reform of important aspects of the law of adoption did not occur until the passage of the 2002 Act. There were, however, in the meantime a number of developments in the legislative field, not the least being, of course, the implementation, in October 1991, of the 1989 Act. In October 1992 a consultative document was published by the Department of Health: the Review of Adoption Law, a report to Ministers of an inter-departmental working group. This included a discussion of the difficulties involved in adoption by relatives, and proposed that there should be a power to appoint what was described as a child's “inter vivos guardian”, who was to have all the rights, duties and powers of a guardian appointed under section 5 of the 1989 Act, apart from the power to agree to the child's adoption.
In December 2000, the government published a White Paper entitled Adoption: a new approach (Cm 5017) ( the White Paper). This followed the fundamental review of adoption policy and practice initiated by the Prime Minister earlier in the same year. The executive summary expressed the government's belief that “more can and should be done to promote the wider use of adoption”, a sentiment repeated in paragraph 1.13 of the White Paper itself. At the same time, the White Paper recognised that adoption was not always appropriate for children who cannot return to their birth parents. The concept of special guardianship was introduced and discussed in paragraphs 5.8 to 5.11 of the White Paper in the following terms: —
'Special guardianship'
5.8 Adoption is not always appropriate for children who cannot return to their birth parents. Some older children do not wish to be legally separated from their birth families. Adoption may not be best for some children being cared for on a permanent basis by members of their wider birth family. Some minority ethnic communities have religious and cultural difficulties with adoption as it is set out in law. Unaccompanied asylum-seeking children may also need secure, permanent homes, but have strong attachments to their families abroad. All these children deserve the same chance as any other to enjoy the benefits of a legally secure, stable permanent placement that promotes a supportive, lifelong relationship with their carers, where the court decides that is in their best interests.
5.9 In order to meet the needs of these children where adoption is not appropriate, and to modernise the law so as to reflect the religious and cultural diversity of our country today, the Government believes there is a case to develop a new legislative option to provide permanence short of the legal separation involved in adoption. This view was strongly supported by respondents to the consultation on the PFU report.
5.10 The Government will legislate to create this new option, which could be called 'special guardianship'. It will only be used to provide permanence for those children for whom adoption is not appropriate, and where the court decides it is in the best interests of the child or young person. It will: —
give the carer clear responsibility for all aspects of caring for the...
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