Re v (A Minor) (Adoption: Dispensing with Agreement)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE OLIVER,LORD JUSTICE LLOYD,SIR EDWARD EVELEIGH |
| Judgment Date | 19 June 1985 |
| Neutral Citation | [1985] EWCA Civ J0619-3 |
| Docket Number | 85/0292 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 June 1985 |
[1985] EWCA Civ J0619-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
CARDIFF DISTRICT REGISTRY
(THE RIGHT HONOURABLE SIR JOHN ARNOLD, PRESIDENT)
Royal Courts of Justice
Lord Justice Oliver
Lord Justice Lloyd
and
Sir Edward Eveleigh
85/0292
No. of Matter 1983 T 433 and AA141A of 1984
In the Matter of the Adoption Act 1958
and
In the Matter of the Children Act 1975
and
In the Matter of S.41 of the Supreme Court Act 1981
and
In the Matter of the Guardianship of Minors Act 1972 and 1973
MR. JOSEPH JACKSON QC and MR. WILLIAM GASKELL (instructed by Messrs. Underwood & Co, Solicitors, London, agents for Messrs. D.J. Treasure & Co, Solicitors, Blackwood, Gwent NP2 1YL) appeared on behalf of the First Defendant (Appellant)
MISS ELEANOR PLATT QC and MISS JANE ROSSER (instructed by Messrs. John Loosemore & Co, Solicitors, Dinas Powis, CF6 4NR) appeared on behalf of the Plaintiffs (Respondents)
MR. E.J. HOLMAN appeared on behalf of the Official Solicitor
This is a very unusual case and one of considerable difficulty. It is an appeal from an order made in the Family Division by Sir John Arnold, President, sitting at Cardiff on 14th February 1985 by which, having dispensed with the consent of the appellant pursuant to s.12(l)(b)(ii) of the Children Act 1975, he ordered that the first and second respondents, Mr. and Mrs. T, do adopt the appellant's child D, then some 4 1/2 years of age. The unusual nature of the case may be judged from the following addition to the order, which was otherwise in toe usual form:
"This Order being made on the footing that reasonable access to the child will do justice to his mother and to the maternal grandparents of the child IT IS FURTHER ORDERED that the child's mother and maternal grandparents be granted liberty to apply for directions as to access".
The appellant now appeals against that order substantially on two grounds—although they are expressed in a number of different ways in the notice of appeal—that is to say, first, that the learned President was wrong in dispensing with her consent, and secondly that in any event he was wrong in considering that the case was an appropriate one for an adoption order.
The salient facts are as follows: The appellant, Mrs. M, to whom it will be convenient to refer as "the mother", was married at the age of 17 to a Mr. V, who was then 22, on 28th July 1979. The child D, to whom the order under appeal relates, was born on 4th August 1980 and is the only child of the marriage. It was not long before the marriage foundered, and in December 1980 the mother left Mr. V taking the child with her. In order to support herself and the child she took work in a public house at which, so it happened, Mrs. T was working as a cleaner, after a short while she went, with the child, to live with Mr. and Mrs. T in their home in Caerphilly. That situation lasted about four or five months, during which time Mrs. T assisted with looking after the child whilst the mother was out at work. In May 1981, however, Mr. V vacated the former matrimonial home, which was at Machen, and the mother left Mr. and Mrs. T, taking the child with her, and lived in Machen for the next year or so. Up to about September 1981 Mr. and Mrs. T maintained a contact with the child, taking him for weekends whilst the mother was working. The mother then formed an association with a man who lived next door, Mr. M, to whom she was subsequently married, her marriage to Mr. V being dissolved in 1982. Mr. M was at that time divorced from his wife, but they had continued to live under the same roof and her presence next door to the mother gave rise to certain difficulties as a result of which the mother and Mr. M decided to move elsewhere. The only alternative accommodation immediately available was a caravan at Porthcawl but the mother, no doubt rightly, considered this not a very suitable environment for a very young child. She accordingly made arrangements for the child to be taken by Mr. and Mrs. T, and he was taken there in about May 1982. The original understanding appears to have been that this was going to be only a temporary stay of some six months but it was only a relatively short while after the child had gone there that the idea was being entertained that Mr. and Mrs. T might adopt him and he has in fact resided with Mr. and Mrs. T as a member of their family ever since. There are no children of Mr. and Mrs. T's marriage, but they have living with them three children (now aged respectively 13, 10, and 9) of Mrs. T's first marriage to a Mr. H. In addition there is an older child (aged 16) of Mrs. T's first marriage, who lives with his father, and Mr. T has a daughter, aged 23, by his first marriage, who is herself married and has young children and who lives near at hand.
On 15th March 1982 a decree nisi was made dissolving the mother's marriage to Mr. V and awarding her custody of the child. The decree was made absolute on 4th May 1982 and in June 1982 she married Mr. M. Thereafter she seems for some time to have seen very little of the child. One reason, no doubt, was that Mr. M was in trouble with the law and decided to move away from South Wales. She accompanied him to an address in Blackpool from which, on 25th October 1982, she sent to Mr. and Mrs. T a letter in the following terms:
"To whom it may concern.
I Claire (M), mother of (D) would like (Mr. and Mrs. T)…..to adopt my son".
Thus encouraged, on 5th November 1982 Mr. and Mrs. T gave notice of intention to adopt D. how long the mother remained in Blackpool is not entirely clear, but she was present on 10th December 1982 when Mr. Dobson, a representative of the South Glamorgan Social Services Department, visited Mr. and Mrs. T and she then reiterated her desire that the adoption should proceed.
By the end of January 1983 she was again residing in the Cardiff area. It seems that for a short while her husband was in custody, but he was ultimately put on probation. Her marriage was going very badly and Mr. M was committing acts of violence, so that on several occasions she was compelled to seek refuge in a Women's Aid home.
It seems that in February she accompanied Mrs. T to court with a view to signing a formal consent to adoption, and it is at this stage of the history that there first emerged the question of her continuing after the adoption to have access to the child. A social worker's report dated 14th February 1983 records that
"At the Court, Claire said that she was willing to sign the form if she could have a document signed by the (T's) family that she could visit her son after the adoption order was made. As (she) was not making an unconditional agreement the Court were unable to witness her signature….."
Shortly thereafter, however, she appears to have changed her mind completely. Her husband had been released from custody and they were being re-housed in Machen. At this stage she indicated to Mr. and Mrs. T that she wanted D back with her and this was at first acceded to, an arrangement being made for her to collect D on 23rd February 1983. In the meantime, however, two things had happened. On 21st February D's father gave a formal and unconditional consent to adoption by Mr. and Mrs. T, and on 22nd February Mr. and Mrs. T instituted proceedings making D a ward of court and seeking an order for his care and control to be committed to them with a view to adoption. Accordingly, when the mother came to collect D on 23rd February Mrs. T refused to hand him over and he has ever since remained with the prospective adopters. In March 1983 the mother was allocated a council house and on 15th June 1983 she gave birth to a daughter, K, of whom Mr. M is the father. Shortly after K's birth, she seems to have had yet a further change of mind, because on 4th July 1983 she signed an unconditional form of consent to adoption. Although, however, this was expressed as unconditional, it had originally borne a typed addition to the effect that it had been agreed "that I may see the child at the home of the applicants one half day per month". This was struck out on the advice of an official of the court who, quite properly, considered that unless these words were deleted the consent could not be treated as unconditional. Although the official gave evidence that he was satisfied that the mother fully understood the position, the learned President took the view that she was not the sort of person to adopt an independent attitude in the face of an official objection, and it is to be inferred from his judgment that he did not consider her as having freely given her consent.
Between the birth of K and the hearing there appears to have been very little contact between the mother and D. The reason for this is not altogether clear. The learned President accepted that, certainly up to the early part of 1984, she was embarrassed by the results of Mr. M's brutality to her—her face, it appears, from time to time bore marks of violence. There appears also to have been some misapprehension of the position which was being adopted by Mr. and Mrs. T. The mother's solicitors had, in November 1983, written to the Official Solicitor (who had been appointed guardian ad litem to the child in the previous April) requesting the name of the social worker involved in the adoption with a view to taking up with her the question of access. That was supplied, but with an intimation that it was necessary in any event for an application for access to be made to the court before it could be permitted. In January 1984, however, the proposed adopters' solicitors intimated to...
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