Re S (A Child) (Adoption Order or Special Guardianship Order)
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Date | 2007 |
| Year | 2007 |
| Court | Court of Appeal (Civil Division) |
Adoption – Special guardianship order – Guidance – Whether judge should have made adoption order or special guardianship order – Children Act 1989, s 14A.
In 2000, the child was born. In 2003 she was placed with a foster mother on a temporary basis, and was again placed with the same foster mother when care proceedings were commenced by the local authority. The child was then placed with her father’s cousin and her husband, but that placement was not a success, and the child moved back to live with the foster mother, where she had remained ever since. The authority’s care plan was for S to be adopted. The foster mother applied to adopt the child. The child’s mother applied to discharge the care order and pursue contact. The judge had to decide with whom the child should live, and what order should govern the outcome. She decided that the child should live with the foster mother, but declined to make an adoption order, making a special guardianship order under s 14A(6)(b) of the Children Act 1989 instead. She also made an order under s 91(4), unlimited in time, and reserved any further applications to herself. The foster mother appealed. The issue was whether the judge should have made an adoption order or a special guardianship order.
Held – In addition to the fundamental difference in status between adopted children and those subject to special guardianship orders, there were equally fundamental differences between the status and powers of adopters and special guardians, which needed to be borne in mind when the court was applying the welfare checklist in both s 1(3) of the 1989 Act and s 1 of the Adoption and Children Act 2002 (see ‘Schedule of Main Differences between Special Guardianship Orders and Adoption’, attached to the judgment in Re AJ (a child) (adoption order or special guardianship order) [2007] All ER (D) 82 (Feb)). The carefully constructed statutory regime demonstrated the care which was required before making a special guardianship order, and that it was only appropriate if, in the particular circumstances of the particular case, it was best fitted to meet the needs of the child or children concerned. There was nothing in the statutory provisions themselves which limited the making of a special guardianship order or an adoption order to any given set of circumstances. Each case had to be decided on its particular facts; and each case would involve the careful application of a judicial discretion to those facts. The key question which the court would be obliged to ask itself in every
case in which the question of adoption as opposed to special guardianship arose would be which order would better serve the welfare of the particular child. In such cases, it was incumbent on judges to give full reasons and to explain their decisions with care. Provided the judge had carefully examined the facts, made appropriate findings in relation to them and applied the welfare check-lists contained in s 1(3) of the 1989 Act and s 1 of the 2002 Act, it was unlikely that the Court of Appeal would be able properly to interfere with the exercise of judicial discretion, particularly in a finely balanced case. In most cases the issue would be, not the actual placement of the child, but the form of order which should govern the future welfare of the child. It was unlikely that the court need be concerned with the alternative of making ‘no order’ under s 1(5) of the 1989 Act and s 1(6) of the 2002 Act. For the same reason, the risk of prejudice caused by delay might be of less pivotal importance. Indeed, in many cases, it might be appropriate to pause and give time for reflection, particularly in those cases where the order was being made of the court’s own motion. However, although the ‘no order’ principle as such was unlikely to be relevant, it was a material feature of the special guardianship regime that it was ‘less intrusive’ than adoption. The court would need to bear art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 in mind, and to be satisfied that its order was a proportionate response to the problem, having regard to the interference with family life which was involved. In some cases, the fact that the welfare objective could be achieved with less disruption of existing family relationships could properly be regarded as helping to tip the balance. Special guardianship had been introduced at least in part to deal with the potential problems arising from the use of adoption in the case of placements within the wider family. A particular concern was that an adoption order had, as a matter of law, the effect of making the adopted child the child of the adopters for all purposes. Accordingly, where a child was adopted by a member of his wider family, the familial relationships were inevitably changed. The statutory scheme for making special guardianship orders was designed generally to allow unfettered access to the court thereafter by parents in relation to all s 8 orders apart from residence. In that respect it had to be accepted that special guardianship did not always provide the same permanency of protection as adoption. That was a factor which, in a finely balanced case, could well tip the scales in favour of adoption. The court had the power to impose a special guardianship order on an unwilling party to the proceedings. Whether or not it should do so would depend upon the facts of the individual case, including the nature of the refuser’s case and its inter-relationship with the welfare of the particular child. If the court came to the view on all the facts and applying the welfare checklist under the 1989 Act that a special guardianship order would best serve the welfare interests of the child in question, that was the order which the court should make. On the facts of the instant case, and applying the above principles, the judge had come to right conclusion. Accordingly, the appeal would be dismissed.
Cases referred to in judgmentA (local authority) v Y [2006] 2 FLR 41.
AJ (a child) (adoption order or special guardianship order), Re[2007] EWCA Civ 55, [2007] 1 FCR 308.
G v G [1985] 2 All ER 225, [1985] 1 WLR 647, HL.
M (a minor) (adoption or residence order), Re[1998] 1 FCR 165, [1998] 1 FLR 570, CA.
MJ (a child) (adoption order or special guardianship order), Re[2007] EWCA Civ 56, [2007] 1 FCR 329.
P (a child) (residence order: childs welfare), Re[1999] 2 FCR 289, [1999] 3 All ER 734, [2000] Fam 15, [1999] 3 WLR 1164, [1999] 2 FLR 573, CA.
R (a child) (special guardianship order), Re[2006] EWCA Civ 1748, [2007] 1 FCR 121.
S and B v Newport City Council (27 July 2006, unreported).
AppealThe appellant appealed against the decision to appoint her as a special guardian for a six-year old girl rather than make the adoption order that she had sought. The facts are set out in the judgment of the court.
Catherine Shelley for the appellant.
Yvonne Healing for the mother.
Richard Humphrys for the father.
The third respondent (Bury Metropolitan Borough Council) was not represented.
Alan Cryne for the guardian.
WALL LJ.[1] 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[2] The judgment in this appeal, and the judgments in the two cases of Re AJ (a child) (adoption order or special guardianship order) [2007] EWCA Civ 55, [2007] 1 FCR 308 and Re MJ (a child) (adoption order or special guardianship order) [2007] EWCA Civ 56, [2007] 1 FCR 329 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 s 14A of the Children Act 1989, as inserted by s 115 of the Adoption and Children Act 2002?
[3] 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. Nonetheless,
and because this is the first time that the question identified in [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.
[4] 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 [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[5] 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 p 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...
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