Re W (Adoption: Parental Agreement)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE BRIGHTMAN,MR. JUSTICE REEVE |
| Judgment Date | 21 January 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0121-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 81/0016 |
| Date | 21 January 1981 |
[1981] EWCA Civ J0121-2
IN THE SUPREME COURT OF JUDICATURE
THE COURT OF APPEAL
(On appeal from Lancaster County Court)
Royal Courts of Justice,
Lord Justice Ormrod
Lord Justice Brightman
Mr. Justice Reeve
81/0016
MISS A. RYAN and MR. HARTLEY-BOOTH (instructed by Messrs. Shuttleworth, Dallas & Crombleholme of Preston) appeared on behalf of the Appellants.
MISS K. L. HUGHES (instructed by Messrs. Farley, Parker & Pickles of Blackburn) appeared on behalf of the Respondent.
This is an appeal by proposed adopters from an order made by His Honour Judge Edmondson sitting at Lancaster County Court on 8th December 1980 whereby he dismissed their application to adopt a child, a boy born on 22nd December 1979, on the ground that the mother's consent had not been given or had been retracted and that she was not unreasonably withholding her consent.
As it is an adoption case, plainly it is essential that it should be reported (if at all) in such a way as to avoid any possibility of identification of the individuals concerned and I shall refer to the people only by their initials.
Like all these cases this is an extremely anxious case and one which involves very deep personal relationships. The child in question was born on 22nd December 1979. The mother was then 20 and the father was younger—probably about 18. This was the second illegitimate child born to the mother. She had had a sone some two years before in 1977 who was, and is, living with her in her own family household. The mother is one of nine children and she is still living with her father and mother and the first of her children in conditions which are obviously extremely crowded. I shall deal with that in more detail in a moment.
The mother had had an association with the father of the first child which had come to an end after a fairly short period and she had returned home to live in the bosom of this very large family. She then began an association with the putative father of this child and that seems to have begun in about September 1978. She was delivered of this child in hospital and—surprisingly perhaps—discharged herself and the baby from hospital the next day and went to live with the putative father in what has been described as "temporary accomodation" which seems to have meant sharing some accommodation with a friend of the father's. She left the other boy (whom I shall call D) in the care of her mother. He was then 2 1/2. The account which she gives of her association with the father (and I emphasis that it is her account—no one has heard the father's account of it) was that it was stormy. She said that he was violent towards her, threatening and extremely difficult. He appears to have made it clear that he would not have the first child living with them and no doubt that was the cause of friction. Early in February 1980 the relationship between them had deteriorated to the point where the mother felt that she could no longer stay with him or continue to associate with him. She could not at that time return with the baby to her mother's house because the mother at that time was not prepared to have her and the baby. At a later stage the grandmother in an affidavit explained that her inability to take the mother of this child and the child in arose because yet another of her daughters had returned from hospital and required to be looked after before she could live on her own, with the result that it looks as though there were at least three sisters sharing one bedroom with this little boy D. There were two brothers in their late teens sharing another room and also the father and mother all in this three bedroomed house. It was apparent that it was impossible to take the mother and child in.
In early February the mother got in touch with the social worker of a well known adoption society. She knew this social worker already because she had been in contact with her over the possibility of the adoption of the first child D which had gone some way before it was decided that the child should not in fact be offered for adoption. Miss Hughes very frankly tells us—and there is a reference in one of the reports to the fact—that this family had had quite a lot of experience with adoption already. At least one of her sisters had had a child adopted in fairly recent times.
So it was to the adoption society that the mother went—not to the local authority who might well have arranged some kind of voluntary care or short term fostering for her for this child in order to tide her over the critical situation that she was in in February when she could not live with the putative father and could not go home. In the result she signed a form authorising the adoption society to start adoption proceedings. That is purely a private form belonging to the society and it is really no more than an authority for them to go ahead. On 20th February, with the mother's full consent, the child was placed, when only just two months old, with temporary foster parents—people who act for the adoption society on a very short term basis. It is clear from the evidence that the social worker was very anxious that the mother should have a reasonable time to decide what she really wanted to do about this child. There had been previous experience of her changing her mind in relation to the other boy D. Five days later, on 25th February, the mother notified the adoption society in the morning that she wanted the child back. Arrangements were tentatively put in hand to get the child back to her. Later that same day however she changed her mind again and said that she wanted the child adopted, so the child remained with the foster parents.
Two days later a meeting was arranged by the adoption society at the foster mother's home between the mother herself and the proposed adopters. On that occasion the mother decised to take the child back. She took him back to the temporary accommodation. That seems to have been no good because two days later again she telephoned another of the officials of this adoption society and said quite definitely that she wanted the child placed for adoption and what is more wanted the child placed for adoption that very day. The second of the social workers came and collected the child on that day and delivered the child to the present proposed adopters. The child has been with them ever since.
A few days later, on 3rd March, the mother actually signed the formal consent to the child being adopted. On 28th March 1980 the proposed adopters filed their application for an adoption order. It is important to emphasise that the signing of the form of consent, which is the official form provided in the County Court Rules, is an important formality, and it is to show that it is an important formality that the document has to be signed either before a court official or before a magistrate. In this particular case the mother signed the form in the County Court. So the matter proceeded.
On 15th April the mother expressed doubt to somebody in the adoption society and said that she would like the child back if she had somewhere to take it. She repeated those doubts some days later and in a more positive form. She was saying by the end of April that she really wanted the child back. By that time Section 29 of The Children Act, 1975 had begun to operate. Section 29 of The Children Act, 1975 amends the Adoption Act 1958 by substituting a new Section 34. That Section as substituted provides:
"While an application for an adoption order is pending in a case where a parent or guardian of the child has agreed to the making of the adoption order (whether or not he knows the identity of the applicant), the parent or guardian is not entitled, against the will of the person with whom the child has his home, to remove the child from the custody of that person except with the leave of the court."
That section passed by Parliament in 1975 is a very significant section because it shows that Parliament by 1975 was anxious to protect both the child and the proposed adopters against sudden changes of mind on the part of mothers. Clearly of course it considerably restricts the power of the natural parent to withdraw the child from the adoption procedure at that stage. The mother was advised to consult solicitors and she did so. She made an application to the court to remove the child. Her solicitors on 8th May wrote a formal letter withdrawing her consent.
The matter came on before Mr. Recorder Jolley on 14th July 1980. The lapse of time was obviously highly significant—from the point of view at least of the child—because every month that goes by in these cases, whether due to delays on the part of the parent or delays on the part of the court, does add greatly to the difficulty of any court which has to deal with this problem. A period of some months elapsed before this application came before the court. The recorder, having heard the matter, ordered the child to remain with the proposed adopters pending the hearing of the adoption application. That application did not come on for a further six months. It may be that the County Court lists are very congested, but that is another five months delay in the life of a child who was only just twelve months old by the time the case came before the court. That is a very long delay—relatively speaking.
So on 8th December, when the case was before the learned judge, he was faced with that situation—and the law requires him to deal with the case on the facts as they are at the time of the hearing—where this child was now just coming up to twelve months old. He had spent tne of those twelve months in...
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