Re W (an Infant)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RUSSELL,LORD JUSTICE SACHS,LORD JUSTICE CROSS |
| Judgment Date | 13 May 1970 |
| Judgment citation (vLex) | [1970] EWCA Civ J0513-3 |
| Docket Number | County Court N.T.L. No. 295 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 May 1970 |
[1970] EWCA Civ J0513-3
Lord Justice Russell
Lord Justice Sachs and
Lord Justice Cross
In The Court of Appeal On
Appeal From Shoreditch County Court
MR. I. H. MORRIS JONES, Q. C. and MR. A. HILL, (instructed by Wallace Bogan & Co. Solicitors, London,) appeared on behalf of the Respondent (Appellant).
MR. A. CAMPBELL, Q.C. and MISS A. RYAN (instructed by T.V. Edwards & Co. Solicitors, London) appeared on behalf of the Applicants (Respondents).
This appeal concerns an order for the adoption of a small child — the son of an unmarried mother - against the wishes of the mother, who indeed wishes to "bring the child up herself. When it is appreciated that the effect of an adoption order is permanently to sever the relationship "between mother and child it may well "be thought that very special circumstances must exist to justify a compulsory and total destruction of that relationship despite her opposition. Section 13 of the Adoption Act, 1950 describes the effect of an adoption order as the extinguishment of all rights, duties, obligations and liabilities of the parent in relation to the custody, maintenance and education of the infant, and their transfer to the adopters, whose child the infant becomes.
Section 4 of the Act (so far as now material) lays it down that no adoption order can be made without the consent of the parent, subject to exceptional cases set out in section Section 5 empowers (though it does not require) the Court to dispense with that consent if the Court is satisfied that the parent (1) has abandoned the infant; or (2) has neglected the infant; or (3) has persistently illtreated the infant; or (4) cannot be found; or (5) is incapable of giving the consent; or (6) is withholding the consent unreasonably; or. (7) has persistently failed without reasonable cause to discharge the obligations of a parent of the infant.
We are only concerned in this case with the sixth of there matters.
The consent of the parent must be consent at the time of the making of the adoption order. Provision is made by section 6 for the production at the hearing of a consent signed by the parent as evidence that the parent is then consenting to the adoption order: and commonly such forms are signed and delivered to the Court some time before the hearing.But if at the hearing it appears that notwithstanding the signing of the form the parent does not then consent, the form is not worth the paper it is written upon; and if the proposed adopters wish to pursue the adoption they must first establish by evidence to the satisfaction of the Court one or more of the seven matters already listed.
It is to be observed at the outset that while the Court, in deciding whether or not to make an adoption order in any case, must regard the welfare of the child as of paramount importance, this is far from the case when the Court is considering an application that the consent to the order of an objecting parent should be dispensed with and his or her natural and legal rights overridden. The question whether a parent's consent is unreasonably withheld is not to be solved merely by a view formed by a court, or by a child welfare officer, or a man or woman in the street that life with the proposed adopters would be, if I may use the phrase, a better bet for the child. This truism must be clearly appreciated by any who may interest themselves in cases such as the present case. Were it otherwise the statute would have allowed consent to be dispensed with whenever the adoption order would in the view of the Court be in the best interests of the child.
The mother in this case is unmarried, and now aged 23. Her parents were separated and she came down from Scotland to join her mother in London when she was 14. She stopped living with her mother when she was 17, though not in consequence of any disagreement or trouble between them.
At some stage thereafter she set up house with a man and by him had two daughters now aged 5 and 4. She and the man split up after the second was born. The mother has always looked after these two girls, and we know of no criticism of their upbringing. Indeed the Welfare Officerreports favourably on this.
In 1967 the mother lived temporarily with another man and "by him conceived (unintentionally) the infant boy with whose proposed adoption we are dealing. The man left her when he found that she was pregnant. The boy was born on 28th March, 1968.
Before the birth the mother was living in a one room flat with the two girls. She was hoping for Council accommodation, but without it felt that life with three small children would be impossible. She arranged with the appropriate authority before the birth that the child when born should be put out for adoption, which would involve going to temporary foster parents very shortly after birth. In fact the day before the birth she was offered better accommodation by the local authority, where she now lives with the two girls and a young woman cousin. Nevertheless, she had in general terms arranged for adoption and felt that she might not be able to cope with the situation of two small girls and a baby even in improved accommodation, and did not alter the arrangement.
The child went in fact to the proposed adopters as temporary foster parents. This was not with a view to adoption by them. They were known to the appropriate department of the local authority as satisfactory for that purpose. In 1968 they had been married for about 10 years, being aged 40 and 30, but were childless. On 28th March, 1968 (a coincidence of date) they obtained an adoption order for a baby girl, and it was knowledge of this proposed adoption that led the authorities to consider them as foster parents. On 5th April, 1968 the boy went to them and has remained with them ever since. At the hearing before the Judge on 17th July, 1969 the child was therefore aged nearly 16 months, and since 5th April, 1968 the mother had not seen him — norindeed has she seen him since. The proposed adopters — against whom as adoptive parents, let me say, nothing is to be said — in fact had a child of their own later, a boy born in June, 1969.
The proposed adopters became very attached to the child and in September, 1968 indicated to the local authority that they wished to adopt him. This no doubt was communicated to the mother. The adoption proceedings were launched on 31st January, 1969. At the same time the mother was presented by the Child Care Officer with the appropriate statutory consent form which after some hesitation, she said, she signed on 11th February, 1969. She said that she was, while hesitating to sign, thinking about the boy and what was best for him. The form makes it clear, as is the fact, that the consent could be withdrawn at any time before an adoption order. Just as, on the other side, proposed adopters are at liberty to withdraw their application at any time. The hearing was due on 1st April, 1969 and on 30th March the mother wrote withdrawing her consent in these terms: "I would like to withdraw my consent to the adoption of my child" — naming him — "Sir when I had my child I just moved into a LCC flat and I had so much to do but now I would like to have my child back as I have enough accommodation for him. I have always wanted him back. I was so mixed up at the time, I have two children with me at the moment of my own and I can look after them very well and I would like to have (the boy) back with me".
At the hearing neither side was legally represented. This case was adjourned for this purpose, and was finally heard on 17th July, 1969. The judge had a Welfare Officer's report — that of Miss Ramsey the guardian ad litem — and oral evidence was given by the female proposed adopter and the mother. The Judge expressed himself as satisfied thatthe mother's consent was being unreasonably withheld, decided to dispense with her consent, and made the adoption order from which the mother now appeals on the ground that she had not unreasonably withheld her consent. I repeat that this is the only one of the seven listed matters relied upon.
I turn now to such information as may be gathered from the notes of evidence and the report of the guardian ad litem Welfare Officer as to the attitudes and activities of the mother in the period between the time when the child went to the foster parents and the time when she withdrew her con sent to the adoption. I have already summaried what the mother said about her initial intention to go on with the idea of adoption in spite of the offer of better accommodation. The Welfare Officer reported that the mother had decided to go ahead with the plan "despite some pressure": "she had no furniture for her new flat and wanted time to settle before having the infant with her". The report dated 28th March, 1969 contained the following passage — in the quotation I have substituted the words "the mother" and "the boy" for their names. — "The Court will be aware that (the mother) has now withdrawn her consent to the adoption. She told me that she had always been undecided and had great difficulty signing the form and then giving it to the Child Care Officer in the first instance, (The mother) has not visited the infant since he was placed with the applicants, nor has she made enquiries as to his progress, contributed maintenance or sent presents. Her explanation is that she felt confused and knew it would be upsetting if she saw the infant. (The mother) now feels she is in a position to offer (the boy) a decent home. Her eldest daughter attends a Day Nursery and she has a 26 year old cousin residing with her, who gives help looking after the children and babysitting. She feels guilt about not having (the boy) with her and...
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