P (A Child) [2014] EWCA Civ 1174

Case No B4/2014/0736[2014] EWCA Civ 1174
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WREXHAM COUNTY COURT
HHJ Jones
WX13200069
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15/08/2014
Before
LORD JUSTICE MOORE-BICKLORD JUSTICE MCFARLANELORD JUSTICE BRIGGS
Re: P (A Child)
Hearing Hearing date : 26 June 2014
Mr Robert Hornby (instructed by Humphrys & Co Solicitors) for the Appellant
Judgment
Lord Justice McFarlane:
[1]This appeal concerns a step-parent adoption. It is some years since the Court of Appeal considered the approach to step-parent adoption applications. In the light of the recent flow of cases from the Supreme Court and the Court of Appeal relating to non-consensual adoption in the context of public law child protection proceedings (the two principal decisions are: Re B (Care Proceedings: Appeal) [2013] UKSC 33; [2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146; [2014] 1 FLR 1035)the present appeal presents a timely opportunity to consider how an adoption application brought by a child’s step-parent is to be approached.[2]The appeal arises from a determination by His Honour Judge Gareth Jones, sitting in Wrexham County Court, on 29th January 2014 in which the judge dismissed a step-father’s application to adopt his two step-children. Permission to appeal was granted by Ryder LJ and we heard the appeal on 26th June 2014. At the conclusion of that hearing we announced our decision, which was to allow the appeal and to make the adoption orders. In view of the wider issues raised, we indicated that our judgments would be handed down in written form at a later date. Factual background[3]The two children are, firstly, a boy, D, born 13th May 2000 and therefore now aged 14 years and his half-sister, a girl, A, born 26th June 2002 who therefore had her twelfth birthday on the day of the appeal hearing. The children’s mother is a Polish national who came to the United Kingdom in 2007 together with the two children. The children have different fathers. Both fathers are Polish. D’s father is named as BZ on his birth certificate. The mother and BZ were never married. A’s father is named as MP on her birth certificate. The children’s mother was married to MP in 2002, but they separated in 2004 and were divorced in 2005.[4]D’s father has apparently had little or no contact with his son since his separation from the children’s mother in or around 2002. So far as A is concerned, the last contact with her father occurred some time in 2005; that is nine years ago when A will have been around the age of 3 years.[5]In 2007 the mother was apparently given permission by the court in Poland to relocate with the children permanently to the UK.[6]The applicant for these adoption orders is Mr TMI. He is a British national. Mr TMI formed a relationship with the children’s mother soon after her arrival in England in 2007. Since that time, some seven years ago, the couple have lived together with the children as a settled family unit.[7]The adoption application by Mr TMI was issued on 31st January 2013. It is made with the full support and consent of the children’s mother.[8]In the course of his judgment the judge necessarily had to consider whether or not either of the two fathers had parental responsibility. He was hampered by the fact that there was no expert evidence and the only source of information as to the state of Polish law on this topic came from the mother, who is not a qualified lawyer. The judge held that, plainly, A’s father, having been married to the mother, had parental responsibility for A.[9]On the basis that, in respect of a birth registered in 2000, under English law, D’s father would not share parental responsibility for D in the absence of a court order, the judge assumed that the situation would be similar in Poland and held that D’s father did not have parental responsibility.[10]In hearing this appeal, we are in the same position as the learned judge and I too approach this matter on the basis that D’s father does not have parental responsibility whereas A’s father does. Step-parent adoptions: the statutory context[11]The statutory scheme contained within Adoption and Children Act 2002 [“ACA 2002”] makes no distinction between a step-parent adoption order and any other adoption order. The statutory scheme does, however, establish two separate routes to adoption. The first route, which is the conventional model for adoption proceedings, involves the court considering the question of parental consent at the time that it is determining whether or not to make the adoption order. This first route is given the label “the first condition” in ACA 2002, s 47.[12]The second route to adoption, which was first introduced by the 2002 Act, applies only to children who are, or have been, subject to child protection proceedings under Part 4 of the Children Act 1989 [“CA 1989”]. This second route, referred to as “the second condition” in ACA s 47, only applies to a child who has been placed for adoption by an adoption agency, either with the consent of each parent or guardian, or under the terms of a placement for adoption order made under ACA 2002, s 21. The relevant statutory provisions are as follows. ACA s 49 proscribes the categories of applicant:
“(1) An application for an adoption order may be made by— (a) a couple, or (b) one person, but only if it is made under section 50 or 51 and one of the following conditions is met.”
[13]The relevant provisions of ACA 2002, ss 50 and 51 are as follows:
“50. Adoption by couple (1) An adoption order may be made on the application of a couple where both of them have attained the age of 21 years. (2) An adoption order may be made on the application of a couple where— (a) one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and (b) the other has attained the age of 21 years. 51. Adoption by one person (1) An adoption order may be made on the application of one person who has attained the age of 21 years and is not married. (2) An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted…” (1) An adoption order may be made on the application of a couple where both of them have attained the age of 21 years. (2) An adoption order may be made on the application of a couple where— (a) one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and (b) the other has attained the age of 21 years. (1) An adoption order may be made on the application of one person who has attained the age of 21 years and is not married. (2) An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted…”
[14]In the present case Mr TMI, who is the sole applicant for adoption, is not married to the children’s mother and it is therefore necessary to turn to the definition of “the partner of a parent of the person to be adopted” in section 51(2). ACA 2002, s 144 (7) states:
“For the purposes of this Act, a person is the partner of a child’s parent if the person and the parent are a couple but the person is not the child’s parent.” 15. Section 144 (4) states: “In this Act, a couple means— (a) a married couple, or (b) two people (whether of different sexes or the same sex) living as partners in an enduring family relationship”
For the sake of completeness, although of no application in the present case, s 144 (5) and (6) exclude certain relatives as follows:
“(5) Subsection (4)(b) does not include two people one of whom is the other’s parent, grandparent, sister, brother, aunt or uncle. (6) References to relationships in subsection (5)— (a) are to relationships of the full blood or half blood or, in the case of an adopted person, such of those relationships as would exist but for adoption, and (b) include the relationship of a child with his adoptive, or former adoptive, parents, but do not include any other adoptive relationships.”
[15]I have already described the two possible routes to adoption in ACA 2002, s 47. The relevant parts of s 47 are as follows:
“(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent). (2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied— (a) that the parent or guardian consents to the making of the adoption order, (b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c) that the parent’s or guardian’s consent should be dispensed with. (3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave. (4) The second condition is that— (a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, (b) either— (i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or (ii) the child was placed for adoption under a placement order, and (c) no parent or guardian opposes the making of the adoption order. (5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave.”
The third condition referred in s 47(1) is set out in s 47(6) and only applies to Scotland and Northern Ireland. (a) that the parent or guardian consents to the making of the adoption order, (b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or (c) that the parent’s or guardian’s consent should be dispensed with. (a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made, (b) either— (i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or (ii) the child was placed for adoption under a placement order, and (c) no parent or guardian opposes the making of the adoption order.[16]The present case, which does not arise in any respect out of public law child protection proceedings, falls to be considered entirely within the compass of “the first condition” in s 47(2). In short, at the time of consideration of the adoption application, the court must be satisfied that each parent or guardian of the child either consents to the making of the adoption order, or that individual’s consent should be dispensed with. In this context a “parent” means “a parent having parental responsibility” [ACA 2002, s 52(6)].[17]In the present case A’s father is “a parent with parental responsibility” and, by virtue of ACA 2002, s 47(2), an adoption order cannot be made with respect to A unless the court is satisfied that her father consents to the making of the order, or that his consent should be dispensed with. ACA 2002, s 52(1) makes provision for the court to dispense with parental consent in the following circumstances:
“ (1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that— (a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or (b) the welfare of the child requires the consent to be dispensed with.”
In determining whether or not to dispense with parental consent, the child’s welfare throughout his or her lifetime must be the court’s paramount consideration (ACA 2002, s 1) and the court will approach the issue in the manner described by the Court of Appeal in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625. (a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or (b) the welfare of the child requires the consent to be dispensed with.” Step-parents: acquiring parental responsibility[18]Prior to the legislative changes brought about under the ACA 2002 the options open to a step-parent who wished to share parental responsibility with his or her partner in the care of children who had become part of their joint family unit were limited. It was possible for the step-parent to be granted a “residence order” under CA 1989, s 8; under the law prior to April 2014, the holder of such an order gained parental responsibility for the child while the residence order remained in force (CA 1989, s 12 (2) – now repealed). Prior to the ACA 2002 reforms it was not possible for a step-parent to be granted a free standing order for parental responsibility. The only other option, therefore, was adoption. A further difficulty under the pre ACA 2002 law was that any such adoption had to be a joint adoption by the step-parent together with their spouse, who was one of the child’s natural parents (Adoption Act l976, ss 14 and 15). This had the unattractive consequence of the natural parent becoming the adoptive parent of their own offspring.[19]The ACA 2002 made a number of changes to the statutory regime and introduced greater flexibility in the options available to afford parental responsibility to a step-parent. Firstly, CA l989, s 4A was inserted into the l989 Act. The key provision, which is s 4A (1), is as follows: “Where a child’s parent (‘parent A’) who has parental responsibility for the child is married to, or a civil partner of, a person who is not the child’s parent (‘the step-parent’):(a) parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or(b) the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.’ (a) parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or (b) the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.’[20]Secondly, as has already been described, it is now possible for a step-parent to apply to adopt his or her partner’s child as a sole applicant (ACA 2002, s 51(2)). The effect of such an adoption is spelled out in ACA 2002, s 67:
“67 Status conferred by adoption (1) An adopted person is to be treated in law as if born as the child of the adopters or adopter. (2) An adopted person is the legitimate child of the adopters or adopter and, if adopted by— (a) couple, or (b) one of a couple under section 51(2), is to be treated as the child of the relationship of the couple in question. (3) An adopted person— (a) if adopted by one of a couple under section 51(2), is to be treated in law as not being the child of any person other than the adopter and the other one of the couple, and (b) … but this subsection does not affect any reference in this Act to a person’s natural parent or to any other natural relationship.” (a) couple, or (b) one of a couple under section 51(2), (a) if adopted by one of a couple under section 51(2), is to be treated in law as not being the child of any person other than the adopter and the other one of the couple, and (b) … but this subsection does not affect any reference in this Act to a person’s natural parent or to any other natural relationship.”
[21]In addition by ACA 2002, s 46(2) the making of an adoption order operates to extinguish the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the adoption order. But, by s 46(3)(b), in a step-parent adoption such as the present, under s 51(2) the adoption order does not affect the parental responsibility of the parent who is the step-parent’s partner.[22]In a single applicant step-parent adoption case under the ACA 2002 regime, such as the present case, the result of these various provisions is that if a step-parent adoption order is made: a) The child is treated as if born as a child of the step-parent [ACA 2002, s 67(1)]; b) Is to be treated in law as not being the child of any person other than the step-parent adopter and the natural parent who is that step-parent’s partner [s 67(3)(a)]; c) The natural parent who is not the step-parent’s partner (i.e. A’s natural father in the present case) has any parental responsibility for the child extinguished [s 46(2)(a)]; and d) The adopter gains parental responsibility for the child [s 46(1)].[23]At the time of the hearing before HHJ Jones (29th January 2014) the court retained jurisdiction to make a residence order under CA 1989, s 8. That facility has now been repealed and replaced with a power to grant a “child arrangements order” under the amendments made to s 8 by Children and Families Act 2014. Under the similarly amended provision in CA l989, s 12(2) where the court makes a child arrangements order and a person who is not a parent or guardian of the child concerned is named in the order as a person with whom the child is to live, that person will have parental responsibility for the child while the order remains in force so far as providing for the child to live with that person. Consequently, it remains possible for a step-parent to be afforded parental responsibility by the making of a child arrangements order.[24]Finally, it is necessary to consider whether the making of a special guardianship order under CA 1989, s 14(A) is an option in a step-parent case. HHJ Jones (at paragraph 51 of his judgment) considered that it was. Technically the judge was correct. A special guardian can be any person over the age of 18, but “must not be a parent of the child in question” [CA 1989, s 14(A)(2)]. A step-parent, albeit that in certain circumstances he may require the leave of the court to do so, may apply to be a special guardian. However, I do not consider that such an option is likely to be appropriate where the step-parent is living with one of the child’s natural parents because the key consequence of making a special guardianship order is that the special guardian, during the life of the order, is “entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian)” [s 14C(1)(b)]. Thus, as the natural parent who is his partner cannot also become a special guardian, a step-father who was a special guardian would thereby acquire a more dominant legal status in the child’s life than the natural mother. The adoption proceedings[25]Mr TMI issued his application for adoption orders with respect to D and A on 31st January 2013. Family Procedure Rules 2010, r 14.3 makes provision as to the parties to an application for an adoption order. The rule makes it plain that, amongst others, “each parent who has parental responsibility for the child” (unless they have given notice that they do not want to be informed of any application for adoption under ACA 2002, s 20(4)(a)) will be a respondent. There is therefore a requirement for A’s father to be a respondent to the application.[26]A father without parental responsibility, such as D’s father in the present case, is not an automatic respondent to an adoption application. Under rule 14.3(3) the court may, at any time, direct that any person may be joined as a respondent to the proceedings, thus it is possible for a father without parental responsibility to be joined following an express direction to that effect. Contrary to the view apparently taken by HHJ Jones in the present case, there is no requirement within the rules to give notice of the application to a father without parental responsibility. Those to whom notice is given are listed in FPR 2010, PD 14A and that provision makes no reference to parents. Earlier case law (Re H; Re G (Consultation of Unmarried Fathers) [2001] 1 FLR 646) suggested that, as a matter of practice, a father without parental responsibility should be informed of the proceedings unless there are good reasons for holding that it is inappropriate to do so. Service[27]The judge’s judgment records the efforts that were made to achieve service of the proceedings upon the fathers of A and D. A translated copy of the application was sent to A’s father’s last known address, which was the home of the paternal grandmother. The papers were signed as having been received at that address on 16th May 2013. This process did not however achieve any response either from A’s father or any person on his behalf. The judge, having made reference to alternative means of service that might have been deployed, held that Mr TMI had done the best that he could do to achieve service on A’s father.[28]On the assumption, which as I have indicated was erroneous, that the rules required notice of the application to be given D’s father, the judge heard evidence, which he accepted, from the children’s mother to the effect that she had absolutely no information as to his whereabouts, but believed that he may be somewhere in America.[29]Part 6 of the Family Procedure Rules 2010 establishes a regime for the service of documents in family proceedings. Chapter 4 of Part 6 makes provision for service outside the jurisdiction of England and Wales. In approaching this appeal, which on the information available is extremely unlikely to have resulted in a different outcome had either of these fathers chosen to take part, we did not descend to considering the detail of the rules regarding service. For the future, however, any applicant or court considering similar proceedings where a respondent resides outside the jurisdiction should have regard to the relevant provisions in FPR 2010, rr 6.40 to 6.48. In the present case service could have been achieved under r 6.44 (the Service Regulation applicable to EU countries) and/or r 6.45 (service through foreign governments, judicial authorities and British Consular authorities) and FPR 2010, PD6B. The judge’s judgment[30]In a full and carefully constructed judgment HHJ Jones, having rehearsed the factual and procedural background, moved on to describe the applicable legal provisions in the following terms:
“28. The effect of an Adoption Order under Section 46 of the Adoption and Children Act 2002 is that it would confer parental responsibility upon the Applicant, but it would do more than that because it would extinguish the parental responsibility of a birth parent with parental responsibility. It would mean in effect that the children within the domestic law of England and Wales would be treated in law as if they were the natural children of the adopter, Mr TMI. The making of an Order would be accompanied (obviously) by a change in the children’s name, in particular the children’s surname which would denote the change in their legal status and it would be an Order which would not be easily set aside. By that I mean it would continue not only during the children’s minority but way beyond their minority into adulthood and for the remainder of their lives. 29. That is why potentially it is such a significant Order, and it is potentially the most significant erosion in the rights of a birth parent which can be imagined. Therefore, that is the reason why the requirements for such an Order are so strict. 30. Before I can make an Adoption Order the Court must be satisfied in this instance that the first condition under Section 47 of the Adoption and Children Act 2002 has been met; namely that either I have the consent of the birth parent or that consent should be dispensed with. In the case of a dispensation, I can only dispense with the consent of a birth parent if the welfare of a child requires that dispensation under Section 52 of the Adoption and Children Act 2002. 31. The words ‘require it’ has been decided in a different context by higher Courts than this Court and has the connotation of the imperative; it is what is required, not just what is desirable. For the welfare of the children to require a dispensation is quite a high hurdle to overcome. It is not simply that this outcome would be a better one for the children than others but that their welfare would be prejudiced significantly if the Order were not made. 32. So far as D is concerned, since I do have the consent of the one birth parent who has parental responsibility for him (given in accordance with the statute and the regulations) prima facie the first condition under Section 47 of the Adoption and Children Act 2002 in his case has been established. 33. In A’s case of course, dispensation is required.”
[emphasis in original][31]Then, after considering the welfare checklist contained in ACA 2002, s 1 and observing that both the applicant and the children's mother were agreed that no distinction should be made between the two children (on the basis that either both or neither of them should be adopted), the judge moved on to consider the impact of the recent case law. He drew a clear distinction between public law adoptions made following the intervention of a local authority, and private law adoptions, which typically involved a step-parent. In the context of public law adoption, the Supreme Court decision in Re B had emphasised that adoption is the last resort. Again, a distinction is drawn between such cases and a private law adoption; at paragraph 41 the judge said:
“41. That, of course, is not the same situation as private law adoptions. Private law adoptions in general are provided in circumstances where very often the children do have some knowledge of their family of origin. That is particularly so in this case where the children are eleven and thirteen respectively and are somewhat older than children who are normally subject to Adoption Orders. They are aware of their origins in Poland, they are aware of the true circumstances of their paternity. 42. It seems to me, therefore, that the underlying decision of the Supreme Court in the case of Re B that I have mentioned, means that I should view adoption as being an absolutely last resort, and only the most extreme option. Does it apply in precisely the same way in private law adoptions as it does in public law adoptions? 43. These children will continue to live with their mother; there is no severance of the birth tie there. They have had only limited past contact with their birth father (in one instance) and no contact for a number of years with the second birth father (in the second instance). The adoption in this case is sought as a means to consolidate ties which already exist and I am reinforced by the decision of the European Court itself in the case of Soderback v Sweden [1999] 2FLR 250 which does provide some judicial support for a contention that different considerations should apply in the case of public law and private law adoptions. 44. Therefore, whilst I accept that adoption always marks an interference with family life, it does not have precisely the same effect in private law adoptions as it would have in public law adoptions, and the particular circumstances of these two cases means that the complete severance of links with the birth family would not be achieved if the adoption applications were to be granted. 45. That being said, it is right that I do consider (so far as the child’s welfare is concerned in one instance) whether the consent of the birth father should be dispensed with, and more generally the welfare of the children throughout their lives respectively. 46. These are older children (as I have mentioned already). They are aware of their origins in Poland and of the true circumstances of their paternity. The application is sought as a means to consolidate ties which already exist, and these Orders will indeed provide stability and security for the two children concerned. As I have said already, they are not being adopted as infants and the traditional argument which favours adoption by way of the provision of security and stability does not apply in precisely the same way for children of eleven and thirteen as it would do if the children were two or three years old. They have lived with the applicant for six years, who has provided for them, and there will be no change in that outcome (I am told) whether the Orders are made or are not made. This is a family which views itself as a family and the making of the Orders themselves would not prejudice that position at all.”
[32]The judge then reviewed the evidence of Mr TMI, during which the court had apparently canvassed the following alternative options to adoption:(a) A residence order to Mr TMI;(b) A special guardianship order;(c) Marrying the children’s mother and thereby achieving parental responsibility under CA 1989, s 4A;(d) Making financial provision for the children in his will.[33]At paragraph 52 the judge explained that he had raised these options with the applicant, not to interfere with how he chose to conduct his life, but in order to understand ‘why it was that he was pursuing perhaps the most significant interference by way of depriving a birth parent of parental responsibility in order to acquire parental responsibility for himself’.[34]In considering A’s welfare throughout her life the judge considered that the statute required the court to place itself ‘hypothetically in a situation where A is asked at the moment before her death whether it was a good idea for her to have been adopted by Mr TMI or not’. In that context the judge asked: ‘will she feel the same way about this application when she is thirty or forty, that I have deprived her birth father of his parental responsibility, extinguished it, and conferred it upon Mr TMI in a situation where that cannot be changed?’.[35]In addressing the various factors contained in the welfare checklist in ACA 2002, s 1(4) the judge recorded that A’s wishes were ‘very firm’ that she wanted the adoption order to be granted.

The judge set out his conclusions with respect to A in the following terms:

“62. Am I able to say in this case that A’s welfare requires me to dispense with the birth father’s consent as an imperative consideration and that her welfare throughout her life means that I should make the Order today? 63. That is quite a difficult hurdle to overcome. I have given it a considerable amount of anxious consideration, because I have read these papers on more than on occasion and I can see how important this decision is for Mr TMI and also for A’s mother. But I am constrained by the words of the statute, and I am afraid I am not satisfied that within the meaning of the statute that A’s welfare requires me to dispense with the consent of her birth father to the making of this Adoption Order. It is a significant intrusion into his right as a birth parent. I am not satisfied (because of the terms of the statute under Section 1 of the Adoption and Children Act 2002) that indeed A’s welfare throughout her life would be promoted by the making of this Order. Her family life will continue in much the same way without the Order being made and there are other ways in which Mr TMI can acquire parental responsibility. They may be viewed by him as being second-best methods, and I sympathise with him and I appreciate why he has now left Court because he is disappointed by the decision that I have reached.”
[37]The case with respect to D did not involve consideration of dispensing with D’s fathers’ consent or removal of that gentleman’s parental responsibility. In reliance, however, on Mr TMI and the mother’s clear stipulation that both children should be dealt with in the same manner and because, as with A, the judge was in any event not satisfied that adoption was compatible with D’s welfare throughout his life, the adoption order in D’s case was also refused. The approach to step-parent adoptions[38]Before turning to the approach to step-parent adoptions in the light of recent developments in the case law relating to contested public law adoptions, it is necessary to refer to existing authority on step-parents, albeit that the cases are now of some antiquity.[39]In Re D (Adoption: Parent’s Consent) [1977] AC 602 the House of Lords gave consideration to a step-parent adoption application made by a mother and her new husband, which was opposed by the child’s father. Lord Wilberforce, at page 627, laid stress on three matters: i) that under the statutory test for dispensing with parental consent, as it then was, the child’s welfare was only one consideration; the test being ‘reasonableness’ (Adoption Act 1958, s 7); ii) consent should only be dispensed with in rare and exceptional cases, and this was ‘all the more so in cases … where the adoption is desired by one natural parent and the other refuses consent’; iii) an adoption order, which is irrevocable, should not be used to deal with practical considerations concerning custody, care and control or access.[40]Dicta of the Court of Appeal (for example that of Bagnall J in Re B (Adoption by Parent) [1975] Fam 127 at page 146) endorsed the third of these points and indicated that, in the event of the other natural parent opposing a step-parent adoption, the court would strive to achieve an outcome by ordinary private law orders rather than adoption.[41]For a time, the approach taken in the 1970’s cases was enshrined in statute in s 14(3) of the Adoption Act 1976 which read “(3) If the married couple consist of a parent and step-parent of the child, the court shall dismiss the application if it considers the matter could be better dealt with under section 42 (Order for Custody, etc) of the Matrimonial Causes Act 1973.” AA 1976, s 14(3) was, however, repealed by the Children Act 1989 when MCA 1973, s 42 was itself repealed and custody orders were replaced by orders under s 8 of the CA 1989. In Re PJ (Adoption: Practice on Appeal) [1998] 2 FLR 252, Thorpe LJ firmly rejected a submission that the repeal of s 14(3) represented the end of the leaning in the earlier case-law (to which I have referred) against step-parent adoption. Thorpe LJ considered that the repeal of s 14(3) was no more than an act of necessary tidying up by the statutory draftsman in the wake of the abolition of custody orders. Thorpe LJ went on to state:
“In my judgment cautionary dicta are still apt since applications for step-parent adoptions may be driven or complicated by motives and emotions derived from conflict within the triangle of adult relationships. They may also be buoyed up by quite unrealistic hopes and assumptions as to the quality of the marriage replacing that into which the children were born.”
[42]In 1998 the issue of step-parent adoption was considered by the European Court of Human Rights in the case of Söderbäck v Sweden [1999] 1 FLR 250. This decision is plainly of significance. The case concerned a child born to parents who had never cohabited. The father’s contact with the girl had been very limited. In due course the mother’s husband, who had lived with the child from the age of 8 months, applied to adopt her in 1988 when she was aged 6 years. The court in Sweden granted the adoption order on the basis that to do so was in the child’s best interests, notwithstanding the father’s opposition and his wish to increase his contact with his daughter. The ECtHR, having held that ECHR, Art 8 was engaged, concluded that the making of an adoption order was not disproportionate in the light of the purpose of the adoption, which was to consolidate and formalise the child’s family ties and in the light of the father’s limited contact with her.[43]Under the process that then applied in the Strasbourg court, the case had been considered initially by the Commission which had taken a contrary view, holding that the adoption order was disproportionate. The Commission had based its reasoning on the ECtHR’s judgment given in 1996 in Johansen v Norway (1997) 23 EHRR 33 which was a child protection case involving the removal of a young baby from a mother who had longstanding social and emotional difficulties and who abused hard drugs. The Strasbourg court held that, whilst the taking of the child into public care may have been proportionate to the need to protect her, the further step (under Norwegian law) of removing the mother’s parental rights was of a permanent nature and could only be considered ‘necessary’ in the context of ECHR, Art 8 if supported by particularly strong reasons on the basis that ‘such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests’.[44]The ECtHR's judgment in Söderbäck v Sweden distinguished between cases such as Johansen, which concern the deprivation of a parent's rights in the context of compulsory and permanent placement of her child outside the family with a view to adoption, and a step-parent adoption. At paragraph 31 of the judgment in Söderbäck the Court explained the distinction:
“31. The Court considers that the present case falls to be distinguished from the Johansen case in the following respects. While it is true that the adoption in the present case, like the contested measures in the Johansen case, had the legal effect of totally depriving the applicant of family life with his daughter, the context differs significantly. It does not concern the severance of links between a mother and a child taken into public care but, rather, of links between a natural father and a child who had been in the care of her mother since she was born. Nor does it concern a parent who had had custody of the child or who in any other capacity had assumed the care of the child. Accordingly, in the Court's view, it is inappropriate in the present case to apply the approach employed in the Johansen judgment. 32. The Court further observes that, during the period under consideration, the contacts between the applicant and the child were infrequent and limited in character and when the adoption was granted he had not seen her for quite some time ... 33. Moreover, the child had been living with her mother since her birth and with her adoptive father since she was 8 months old. He had taken part in the care of M, who regarded him as her father. Thus, when the adoption was granted b the district court in December 1989, 'de facto' family ties had existed between the mother and the adoptive father for 5 1/2 years, until they married in January 1989, and between him and M for 6 1/2 years. The adoption consolidated and formalised those ties. 34. .... Given the aims sought to be achieved by allowing the adoption to go ahead, it cannot be said that the adverse effects it had on the applicant's relations with the child were disproportionate. 35. Accordingly, there has been no violation of Art 8 of the Convention in the present case.”
Discussion[45]As will be apparent from the order that has been made allowing this appeal, I am afraid that I differ from the judge in my analysis of the legal context within which these decisions fell to be considered. Despite the fact that the judge made reference to the relevant statutory provisions and case law which are applicable to this application, his conclusions as to their impact on the facts of this case cannot stand.[46]In an adoption application the key to the approach both to evaluating the needs of a child’s welfare throughout his or her life and to dispensing with parental consent is proportionality. The strong statements made by the Justices of the Supreme Court in Re B and taken up by judges of the Court of Appeal in subsequent decisions to the effect that adoption will be justified only where ‘nothing else will do’ are made in the context of an adoption being imposed upon a family against the wishes of the child’s parents and where the adoption will totally remove the child from any future contact with, or legal relationship with, any of his natural relatives. Although the statutory provisions applicable to such an adoption (in particular ACA 2002, s 1 regarding welfare and s 52 regarding consent) apply in precisely the same terms to a step-parent adoption, the manner in which those provisions fall to be applied may differ and will depend upon the facts of each case and the judicial assessment of proportionality.[47]By way of example, in a child protection case where it is clear that rehabilitation to the parents is not compatible with their child’s welfare, the court may be faced with a choice between adoption by total strangers selected by the local authority acting as an adoption agency or adoption by other family members. There is a qualitative difference between these two options in terms of the degree to which the outcome will interfere with the ECHR, Art 8 rights to family life of the child and his parents; adoption by strangers being at the extreme end of the spectrum of interference and adoption by a family member being at a less extreme point on the scale. The former option is only justified when ‘nothing else will do’, whereas the latter option, which involves a lower degree of interference, may be more readily justified.[48]Where an adoption application is made by a step-parent, the approach of the ECtHR in Söderbäck v Sweden should be applied according to the facts of each case. In doing so the following central points from the judgment in Söderbäck are likely to be important: a) There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents; b) Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent [‘Parent B’], and thereby make it more likely that adoption is a proportionate measure are: i) Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child; ii) Where Parent B has had only infrequent or no contact with the child; iii) Where there is a particularly well established family unit in the home of the parent and step-parent in which ‘de facto’ family ties have existed for a significant period. 49. In so far as the earlier domestic cases to which I have made reference establish that, in the event of Parent B being actively opposed to a step-parent adoption, practical arrangements should be dealt with by private law orders, that approach is entirely at one with the modern private law relating to children which seeks to determine aspects of the delivery of child-care and the discharge of parental responsibility either by parental agreement or by a child arrangements order under CA 1989, s 8. 50. The making of an adoption order is primarily, if not entirely, concerned with the legal status of the relationships between the child, his natural parent(s) and the adopter(s), rather than practical arrangements. Thorpe LJ’s words in Re PJ adhering to the aptness of earlier cautionary dicta, and reminding professionals of the need to be aware of the motives, emotions and possible unrealistic assumptions about any new family unit, remain as wise and sound as they were when uttered in 1998. In this manner, the approach of the domestic case law sits easily alongside that of the ECtHR in Söderbäck v Sweden. 51. Applying the approach that I have described to the present case, the evidence establishes that: a) D’s father has had little or no contact with his son since 2002 when D was aged 2 years; b) D’s father does not have parental responsibility for D; c) A last had contact with her father in 2005, which is nine years ago when she was aged 3 years; d) Although A’s father does have parental responsibility for A, he has taken absolutely no step whatsoever to assert or discharge that responsibility for the past nine years. A will be an adult in six years time, and the ability of any parent to exercise effective parental responsibility over her will diminish and become ineffective a considerable time before that six year period expires. There is no indication that A’s father intends to take any active step in his role as one of A’s parents during the remainder of her minority; e) The separation between the children and their father was consolidated, at least in geographical terms, by the Polish court’s approval of the mother’s permanent removal to England in 2007, which is 7 years ago; f) The applicant, Mr TMI, has been in a close family relationship with the mother and the two children since 2007. They have established strong ‘de facto’ family ties in a settled family unit during that period; g) The children, and in particular A, have a clear and strong wish to be adopted by Mr TMI. 52. On the facts it is hard to distinguish this case from that of Söderbäck v Sweden, but, in any event, in the present application the detriment, in ECHR Art 8 terms, to each of these two children and their fathers of extinguishing their respective legal relationships is modest. The interference with Art 8 family life rights here is of an altogether lower level of intervention to that which is typically involved where the proposed adoption is by non-family members with all familial relationships being extinguished against the will of parents with whom the children have a real and active relationship. 53. Despite the obvious care and anxious thought that the judge plainly brought to bear upon his decision in this case, in my view he fell into substantial error in his evaluation of the balance of rights under Art 8 and, hence, the overall proportionality of making adoption orders. In addition the judge seems to have misinterpreted the statutory regime and the requirements that it placed upon him. Having already set out the core passages within the judge’s judgment, it is not necessary to do more that make short reference here to specific points. 54. In paragraph 31 the judge described the ‘connotation of the imperative’ arising from the word ‘requires’ in ACA 2002, s 52 which establishes the test for dispensing with parental consent. He went on to hold that an applicant must establish that the child’s ‘welfare would be prejudiced significantly if the order were not made’. Although the judge does not make express reference to the decision of this court in Re P (Placement Orders: Parental Consent), he plainly had regard to it as the phrase ‘the connotation of the imperative’ is taken from the leading judgment of Wall LJ in that case. The central paragraphs of that judgment (being paragraphs 124 to 128) are well known and I have set them out below. Re P was a public law case in which adoption away from the family was proposed against the wishes of the parents. Reference by Wall LJ to the Strasbourg case law in that context is therefore to Johansen v Norway with no mention made of Söderbäck v Sweden. Caution is therefore required in reading that judgment in the context of a step-parent adoption, albeit that the statutory test in s 52 is precisely the same for both categories of adoption. The reason for caution is that, whilst the statutory wording is the same, the degree of interference with family life and evaluation the of proportionality under Art 8 are likely to be different. 55. The core guidance given by Wall LJ in Re P actually precedes the oft quoted passage which starts at paragraph 124. At paragraph 116, with respect to the interpretation of s 52(1)(b) regarding dispensing with parental consent on the grounds that the child’s welfare ‘requires’ it, Wall LJ said: “116. The guidance is, we think, simple enough. The judge must, of course, be aware of the importance to the child of the decision being taken. There is, perhaps, no more important or far-reaching decision for a child than to be adopted by strangers. However, the word ‘requires’ in s 52(1)(b) is a perfectly ordinary English word. Judges approaching the question of dispensation under the section must, it seems to us, ask themselves the question to which s 52(1)(b) of the 2002 [Act] gives rise, and answer it by reference to s 1 of the same Act, and in particular by a careful consideration of all the matters identified in s 1(4). 117. In summary, therefore, the best guidance, which in our judgment this court can give is to advise judges to apply the statutory language with care to the facts of the particular case. The message is, no doubt, prosaic, but the best guidance, we think, is as simple and as straightforward as that.” 56. The more frequently quoted passage that follows was not intended to detract from the simple and straightforward, case-specific, approach described in paragraphs 116 and 117. Wall LJ expressly states that this is so at paragraph 118: “Without wishing to qualify in any way the clarity and simplicity of what we have just said, but in deference to Mr Geekie’s [counsel] careful argument, we think we should add a few words about the Strasbourg jurisprudence to which he referred us.” 57. What follows in paragraphs 119 to 128 is entirely focused upon dispensation of parental consent, where that is being actively withheld, in a public law child protection case. At paragraph 124 Wall LJ sets the context in these terms: “In assessing what is proportionate, the court has, of course, always to bear in mind that adoption without parental consent is an extreme – indeed the most extreme – interference with family life. Cogent justification must therefore exist if parental consent is to be dispensed with in accordance with s 52(1)(b). Hence the observations of the Strasbourg court in Johansen v Norway …” 58. Having quoted from Johansen, Wall LJ immediately goes on at paragraph 125 to apply the Strasbourg approach to proportionality in such cases to the interpretation of ‘requires’ in s 52(1)(b), and it is in this passage that the phrase ‘connotation of the imperative’ appears: “This is the context in which the critical word ‘requires’ is used in s 52(1)(b). It is a word which was plainly chosen as best conveying, as in our judgment it does, the essence of the Strasbourg jurisprudence. And viewed from that perspective ‘requires’ does indeed have the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable.” 59. This key passage in Re P then concludes in the remaining three paragraphs [126 to 128] as follows: “126. What is also important to appreciate is the statutory context in which the word "requires" is here being used, for, like all words, it will take its colour from the particular context. Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to be shown is that the child's welfare "requires" adoption as opposed to something short of adoption. A child's circumstances may "require" statutory intervention, perhaps may even "require" the indefinite or long-term removal of the child from the family and his or her placement with strangers, but that is not to say that the same circumstances will necessarily "require" that the child be adopted. They may or they may not. The question, at the end of the day, is whether what is "required" is adoption. 127. In our judgment, however, this does not mean that there is some enhanced welfare test to be applied in cases of adoption, in contrast to what Mr Geekie called a simple welfare test. The difference, and it is an important, indeed vital, difference, is simply that between section 1 of the 1989 Act and section 1 of the 2002 Act. 128. In the first place, section 1(2) of the 2002 Act, in contrast to section 1(1) of the 1989 Act, requires a judge considering dispensing with parental consent in accordance with section 52(1)(b) to focus on the child's welfare "throughout his life." This emphasises that adoption, unlike other forms of order made under the 1989 Act, is something with lifelong implications. In other words, a judge exercising his powers under section 52(1)(b) has to be satisfied that the child's welfare now, throughout the rest of his childhood, into adulthood and indeed throughout his life, requires that he or she be adopted. Secondly, and reinforcing this point, it is important to bear in mind the more extensive 'welfare checklist' to be found in section 1(4) of the 2002 Act as compared with the 'welfare checklist' in section 1(3) of the 1989 Act; in particular, the provisions of section 1(4)(c) – which specifically directs attention to the consequences for the child "throughout his life" – and section 1(4)(f). This all feeds into the ultimate question under section 52(1)(b): does the child's welfare throughout his life require adoption as opposed to something short of adoption?60. It is plain that there is no justification to be found in Re P, or elsewhere, for the stipulation imported by the judge in the present case to the effect that ‘requires’, in every case, necessitates a finding that the child’s ‘welfare would be prejudiced significantly if the [adoption] order were not made.’61. Nothing that I say in this judgment in intended to detract from or alter in any manner the carefully formulated explanation and guidance which is so clearly set out in the judgment of Wall LJ in Re P. The application of that guidance to each individual case will depend upon the facts and context of each case. Where the application is for a contested, public law adoption with a placement, against the active opposition of parents, with strangers, the guidance offered from paragraph 118 (in response to Mr Geekie’s submissions) is likely to be highly relevant. But the core of the guidance is that which appears at paragraph 117 – ‘apply the statutory language with care to the facts of the particular case’. In that regard, the context of the particular case will be of particular significance: where on the spectrum of intervention by adoption does this case sit? In broad terms the spectrum will run from a fully opposed, public law ‘stranger’ adoption at one extreme, to an adoption within the child’s existing ‘de facto’ family unit, which is made with the consent of both parents. In between there will be step-parent adoptions which are actively opposed by ‘Parent B’, who is himself fully involved in the life of his child, or step-parent adoptions, like the present, where Parent B, whilst not consenting, has played no active parental role for some years.62. The reason why context is important is that, in each case, it is necessary to evaluate the proportionality of the intervention in family life that is being proposed. For the child, and for the child’s welfare throughout his life, there will be a qualitative difference between adoption by strangers, with no continuing contact or legal relationship with any member of the birth family, on the one hand, and an adoption order which simply reflects in legal terms the reality in which the child’s family life and relationships have been conducted for some significant time. In ECHR terms, no adoption order will be justified in terms of its interference with family life rights unless it is ‘necessary’ and ‘proportionate’, but in assessing those factors the degree to which there is an interference will be relevant. In short, in the present case, the loss to A, and the loss to her father, of his legal status as her father who holds parental responsibility for her, interferes with their respective family life rights to a relatively modest degree. In contrast, if the social services were to intervene and seek to remove her from the care of her mother and Mr TMI by compulsory order to place her for adoption with strangers, the degree of interference would be extreme.63. The judge in the present case was correct to approach the interpretation of ‘requires’ in s 52(1)(b) by reference to the ‘connotation of imperative’ that it has (in accordance with paragraph 125 of Re P). But what is ‘required’ varies from case to case and is firmly grounded, by the very words of s 52(1)(b), upon an evaluation of the child’s welfare throughout his life. The use of the phrase ‘connotation of imperative’ in Re P does not mean (see Re P paragraph 127) that there is some enhanced welfare test to be applied in cases of adoption.64. At paragraph 31 of his judgment, it is apparent that the judge considered that the ‘hurdle’ that is established by the word ‘requires’ in s 52(1)(b) is of exactly the same height in every case. With respect to the judge, this is not the correct approach. What a child’s welfare ‘requires’ in this regard will be proportionate to the context of each case and the degree to which the particular adoption being proposed impacts upon other aspects of the child’s welfare and Art 8 rights to family life. As Wall LJ spelled out in Re P, the answer to the question posed by s 52(1)(b) is to be found by reference to ACA 2002, s 1, and in particular by a careful consideration of all the matters identified in s 1(4) which are to be applied with care to the facts of each particular case.65. I am afraid that I consider that the judge also fell into further error during his analysis at paragraphs 52 to 54 of his judgment. It will be recalled that there he considered that granting an adoption would be the most significant interference with family life in that it would deprive a birth parent of parental responsibility. The judge then went on to question A’s response to the adoption if asked at the end of her life, or earlier: ‘will she feel the same way about this application when she is thirty or forty, that I have deprived her birth father of his parental responsibility, extinguished it, and conferred parental responsibility upon Mr TMI in a situation where that cannot be changed’.66. What is striking about this section of discussion and analysis is not that the judge asked himself questions of this nature, which arise from ACA 2002, s 1 and the need to look at welfare throughout the child’s life (although I would question the need to contemplate the subject individual’s own view on the topic on their deathbed). The striking aspect is that at no place does the judge evaluate the quality, substance and importance (both in terms of welfare and in ECHR, Art 8 terms) of A’s father’s role in his child’s life. In assessing proportionality it is surely essential that some evaluation is undertaken of the scale of what is being lost by the making of an adoption order. On the facts of this case, what is to be lost is of a modest order. This father and daughter relationship exists as a matter of law, but it has had neither life nor reality in it for most of A’s life and there is no indication that that situation will change in the years to come.67. It follows that I do not agree that the judge was constrained by the words of the statute, as he considered that he was, to refuse to dispense with consent. I also consider that his decision on ordinary welfare terms was wrong. The finding that, as a matter of day to day existence, A’s family life would continue in much the same way and that there were other routes by which Mr TMI might gain parental responsibility, failed to engage with the benefit that adoption would bring by marrying up the legal relationships with the ‘de facto’ relationships as they had become established within this small family unit. In almost every way Mr TMI had become A’s and D’s father. The making of an adoption order would confirm that status as a matter of law. It would also render A and D full siblings in the eyes of the law (not a factor considered by the judge in his analysis). It was the outcome that A firmly wished for. These were important, I would say crucial and determinative, matters on the facts of this case. Only adoption could achieve such an result. The other avenues by which parental responsibility might be acquired, which in any event were more limited than the judge considered as I have explained, each fell short of making Mr TMI these children’s ‘Dad’. Against these real positives, the loss of the legal relationship with A’s father, on the facts of this case, was not in any manner out of proportion.68. Finally, given my conclusions with respect to A, the case relating to D does not require detailed consideration. It is however right to observe that D was a child whose father did not have parental responsibility and who had abandoned the mother and D at a very early age. At the age of 14 D strongly wished to be adopted. The case for adoption by Mr TMI would seem to have been overwhelming, yet the judge, in addition to dismissing the application on the basis that A and D should be dealt with in like manner, held that the application failed in welfare terms under ACA 2002, s 1 in part because the judge was not satisfied ‘with regard to the provision of s 1(4)(c) and the likely effect throughout his life of ceasing to be a member of the birth family and of joining another family’. On the mother’s evidence, which the judge accepted, she last saw D’s father 14 years ago, shortly after D’s birth. It is hard to understand what the judge was contemplating in terms of D ‘ceasing to be a member of the birth family’ in those circumstances. In terms of ‘joining another family’, D had been living in this ‘other family’ for some 7 years; it was a family that involved his mother, his half sister and the only man who he has ever experienced as a father. The judge does not explain why he held that this factor dictated, in the context of D’s welfare, that the adoption application should be refused.69. For the reasons that I have now given, this appeal was therefore allowed and adoption orders were made thereby establishing Mr TMI as the adoptive father of D and A. Lord Justice Briggs70. I agree. To my mind, much the most conspicuous shortcoming in the judge’s analysis of the question whether these children’s welfare required dispensing with A’s father’s consent was his underestimation of the importance of the change in the parent-child relationship from being partner of their birth mother (whether or not married) to becoming full parent which only adoption would achieve for Mr TMI. This change is not merely a matter of legal consequences, such as the statutory deeming of the adoptive parent as being the deemed birth parent, or the extinguishment of the parental responsibility of the birth father. It lies also in the commitment of the adoptive father to becoming the child’s parent for life, rather than just parent for the duration of his relationship with the birth mother. As my Lord puts it, nothing short of adoption makes the adoptive father the child’s ‘Dad’ in the fullest sense.71. I do not share the judge’s difficulty with the notion that, on the facts of this case, the change from step father to adoptive father was something which both these children’s welfare required. In my view it clearly did, and that was sufficient to require dispensation with A’s birth father’s consent. Lord Justice Moore-Bick72. I also agree; my reasons for allowing the appeal are fully reflected in the judgment of Lord Justice McFarlane.

Cited in 18 later judgments

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