S (Child as Parent: Adoption: Consent) [2017] EWHC 2729 (Fam)

[2017] EWHC 2729 (Fam)Case No LS261/17
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate 02/11/2017
Strand
London WC2A 2LL
Before
THE HONOURABLE MR JUSTICE COBB
Re S (Child as parent: Adoption: Consent)
Hearing Hearing dates: 24 October 2017
Bridget Dolan QC and Brett Davies (instructed by Local Authority solicitor) for the Local Authority
Shaun Spencer (instructed by Ramsdens, Solicitors) for S (by a Litigation Friend appointed by Cafcass)
Lorraine Cavanagh (instructed by Switalskis, Solicitors) for T (by a Children’s Guardian)
Judgment Approved
The Honourable Mr Justice Cobb :
Introduction
[1]An adoption order, involving the permanent severance of all family ties of a child, is one of the most significant of all court orders available in the law of England and Wales. Some, albeit relatively few, adoption orders are made with the consent of the birth parents; in the majority of applications for adoption orders, the court will need to consider whether the welfare of the child requires that parental consent be dispensed with. All parties in this case hope that the adoption of the 3-month old baby (‘T’) with whom I am concerned may proceed with the consent of the birth mother (‘S’); she wishes to give her consent, but issue has arisen as to her competence to do so.[2]S is a young person; she is under 16 years of age. S suffers from developmental delay and learning disabilities. Approximately 12 weeks ago, S gave birth to a baby (T). T was delivered by caesarean section under general anaesthetic. The putative father of the baby is an adult.[3]S wishes nothing to do with the baby, T. She has not seen T. She has not named T. She did not want to know the gender of T, but has recently discovered this by accident; S then wanted to know T’s given name. S does not want the father to have anything to do with T. T was placed with foster-to-adopt carers directly from the hospital, accommodated under section 20 Children Act 1989 (‘CA 1989’) with S’s agreement. S wishes for T to be adopted, as soon as possible. Since the birth, S herself has been received into foster care, pursuant to an order under Part IV CA 1989.[4]In September 2017, the Local Authority issued an application in the Family Division of the High Court pursuant to rule 14.21 and Part 19 Family Procedure Rules 2010 (‘FPR 2010’) seeking my directions in relation to adoption procedure; specifically, it sought(a) my authority not to notify the putative father of T’s existence, and(b) directions in relation to obtaining S’s consent to the placement of T for adoption and/or the adoption of T. As it happens, the putative father had (unbeknown to the Local Authority) been advised by the police of the existence of T, and so the issue at (a) above fell away. Following discussion at court at a directions hearing on 12 October 2017, the Local Authority issued an application for a placement order, in order that the Court could consider the widest range of case management and other powers in relation to the consent of S to the placement of the baby and/or adoption. That application was issued on 17 October 2017; I listed the case for argument on the issue of S’s consent, and related matters, on 24 October 2017.[5]All parties agree that the ultimate outcome of the current legal process is overwhelmingly likely to be the adoption of T. The route by which that objective is reached is more contentious.[6]The central issue for determination is S’s competence to consent to the placement of T for adoption, and T’s adoption; in the event of S’s incompetence on this issue, I am asked to consider the route by which T’s legal status can be secured. That issue, and the associated issues arising on these facts, have been broken down as follows (taking them in the chronological and I believe logical sequence in which they arise): i) By what test does the court assess generally the competence of a child as a decision-maker? ii) Can a child parent give consent to accommodation of their child (under section 20 Children Act 1989), even if assessed to lack competence in other domains, including litigation competence in associated / simultaneous adoption or placement proceedings? iii) What is the test for establishing the competence of a child parent to consent to the placement and/or adoption of their baby? iv) Should steps be taken to help the child parent to reach a competent decision? v) In what factual circumstances is the section 31(2) CA 1989 ‘threshold’ likely to be met in relation to a relinquished baby, so as to found jurisdictionfor the making of a placement order under section 21(2)(b) ACA 2002? vi) Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?

Statutory scheme under the Adoption and Children Act 2002 (‘ACA 2002’)

[7]Section 18 of the ACA 2002 provides the jurisdiction for an adoption agency to place a child for adoption.[8]Section 19 provides the arrangements for the giving of consent to placement for adoption: Section 19: Placing children with parental consent “(1) Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child—(a) being placed for adoption with prospective adopters identified in the consent, or(b) being placed for adoption with any prospective adopters who may be chosen by the agency, and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly. (2) Consent to a child being placed for adoption with prospective adopters identified in the consent may be combined with consent to the child subsequently being placed for adoption with any prospective adopters who may be chosen by the agency in circumstances where the child is removed from or returned by the identified prospective adopters. (3) … (4) … (5) This section is subject to section 52 (parental etc. consent).” (a) being placed for adoption with prospective adopters identified in the consent, or (b) being placed for adoption with any prospective adopters who may be chosen by the agency,[9]In relation to consent to adoption, the relevant provision is section 20 ACA 2002: Section 20: Advance consent to adoption “(1) A parent or guardian of a child who consents to the child being placed for adoption by an adoption agency under section 19 may, at the same or any subsequent time, consent to the making of a future adoption order. (2) Consent under this section—(a) where the parent or guardian has consented to the child being placed for adoption with prospective adopters identified in the consent, may be consent to adoption by them, or(b) may be consent to adoption by any prospective adopters who may be chosen by the agency. (3) A person may withdraw any consent given under this section. (4) A person who gives consent under this section may, at the same or any subsequent time, by notice given to the adoption agency— (a) state that he does not wish to be informed of any application for an adoption order, or (b) withdraw such a statement. (5) …. (6) This section is subject to section 52 (parental etc. consent)”.[10]It will be seen that the foregoing provisions refer to the ‘consent’ provision of section 52 ACA 2002. This provides: Section 52: Parental etc. consent “(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. (2) The following provisions apply to references in this Chapter to any parent or guardian of a child giving or withdrawing— (a) consent to the placement of a child for adoption, or (b) consent to the making of an adoption order (including a future adoption order). (3) Any consent given by the mother to the making of an adoption order is ineffective if it is given less than six weeks after the child's birth. (4) The withdrawal of any consent to the placement of a child for adoption, or of any consent given under section 20, is ineffective if it is given after an application for an adoption order is made. (5) “Consent” means consent given unconditionally and with full understanding of what is involved; but a person may consent to adoption without knowing the identity of the persons in whose favour the order will be made. (6) “Parent” (except in subsections (9) and (10) below) means a parent having parental responsibility. (7) Consent under section 19 or 20 must be given in the form prescribed by rules, and the rules may prescribe forms in which a person giving consent under any other provision of this Part may do so (if he wishes). (8) Consent given under section 19 or 20 must be withdrawn— (a) in the form prescribed by rules, or (b) by notice given to the agency. (9) … (10) …”[11]Where parents have given a valid consent to placement for adoption — unconditionally and with full understanding of what is involved — the local authority will be ‘authorised’ to place the child for adoption. In such circumstances, there is no obligation or power to apply for or make a placement order under section 21 of the ACA 2002; this was the outcome of the case of JL in Re JL and AO [2016] EWHC 440 (Fam). If a placement order is sought, the relevant provision is section 21:- Section 21: Placement orders “(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority. (2) The court may not make a placement order in respect of a child unless—(a) the child is subject to a care order,(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or(c) the child has no parent or guardian. (3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied— (a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or (b) that the parent's or guardian's consent should be dispensed with. This subsection is subject to section 52 (parental etc. consent). (4) A placement order continues in force until— (a) it is revoked under section 24, (b) an adoption order is made in respect of the child, or (c) the child marries [forms a civil partnership] or attains the age of 18 years.[12]It will be seen (see [53-55] below) that there is some uncertainty among the parties as to how this application could proceed if consent is not validly given, and the ‘threshold’ facts are not established. Miss Cavanagh has proposed that the foster-to-adopt carers could make an application at the appropriate time as a non-agency placement under section 44 ACA 2002 (see [53] below). I set out this provision here for ease of reference: Section 44: Notice of intention to adopt(1) This section applies where persons (referred to in this section as “proposed adopters”) wish to adopt a child who is not placed for adoption with them by an adoption agency.(2) An adoption order may not be made in respect of the child unless the proposed adopters have given notice to the appropriate local authority of their intention to apply for the adoption order (referred to in this Act as a “notice of intention to adopt”).(3) The notice must be given not more than two years, or less than three months, before the date on which the application for the adoption order is made.(4) Where— (a) if a person were seeking to apply for an adoption order, subsection (4) or(5) of section 42 Section 42 sets out the ‘residence’ (i.e. child has his home with…) criteria for the applicants: the child must have had his home with the prospective adopters for specified periods depending on the nature of the placement. On these facts, it is arguable that T was placed with the foster-to-adopt carers ‘for adoption’ by the local authority as adoption agencyin which case the application could be made after a period of ten weeks (section 42(2)), or I could order that the child is placed with the prospective adopters and the same time limit (10 weeks) would apply. If the proposed adopters simply proceed as foster parents, the ‘residence’ condition would not be satisfied until after 1 year (section 42(4)), or I could give leave to the proposed adopters to make the application (section 42(6)). would apply, but (b) the condition in the subsection in question is not met, the person may not give notice of intention to adopt unless he has the court's leave to apply for an adoption order. (5) On receipt of a notice of intention to adopt, the local authority must arrange for the investigation of the matter and submit to the court a report of the investigation.

(b) (9) …”

[13]This sets in train a procedure in which the consent of the natural parent would be considered under section 47(2) ACA 2002 (this section becomes potentially relevant in the circumstances described at [53] below): Section 47 Conditions for making adoption orders “(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.” (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.” By what test does the court assess generally the competence of a child as a decision-maker?[14]There is unanimity of view in this case that the test of competence for a young person is that set out in the House of Lords decision of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1 AC 112 (“Gillick”). Several passages have been cited, the most notable of which are: per Lord Fraser:
“…a minor under the age of 16 can, within certain limits, enter into a contract. He or she can also sue and be sued, and can give evidence on oath. Moreover, a girl under 16 can give sufficiently effective consent to sexual intercourse to lead to the legal result that the man involved does not commit the crime of rape …Accordingly, I am not disposed to hold now, for the first time, that a girl aged less than 16 lacks the power to give valid consent to contraceptive advice or treatment, merely on account of her age.”
And per Lord Scarman: “The underlying principle of the law … is that parental right yields to the child's right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. … I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. It is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved”. (Emphasis by underlining added).[15]As the decisions which S faces in this case (i.e. accommodation of a child, consent to adoption) are not uncommonly encountered by adults about whom issue is raised as to capacity, the approach of the courts to decision-making by adults and children ought (with appropriate adjustments to reflect age and maturity) in my judgment to be complementary. Therefore, in applying the Gillick test in the context of determining the competence of a child to make decisions, I regard it as appropriate, and indeed helpful, to read across to, and borrow from, the relevant concepts and language of the Mental Capacity Act 2005 (‘MCA 2005’).[16]I do so, cognizant of some fundamental differences between the assessment of a child’s competence at common law, and the assessment of capacity of a person over the age of 16 Section 2(5) MCA 2005: and see also Family Law Reform Act 1969 and the presumption of capacity of young people over 16 years old to have capacity to consent to surgical, medical or dental treatment and to associated procedures, such as nursing care. under the MCA 2005. Most notable of the differences is that the assumption of capacity in a person aged 16 or over in section 1(2) of the MCA 2005 does not apply (in relation to the equivalent issue of competence) to a young person under that age. Furthermore, there is no requirement to consider any ‘diagnostic’ characteristic of a young person under 16 (i.e. impairment of, or a disturbance in the functioning of, the mind or brain)in the assessment of their competence, as there is under section 2(1) of the MCA 2005 in respect of those aged 16 and over.[17]It seems to me, nonetheless, that the following principles relevant to decision-making under the MCA 2005 can usefully be applied to Gillick decisions: i) The determination of a child’s competence must be decision-specific and child-specific. It is necessary to consider the specific factual context when evaluating competence, for “removing the specific factual context from some decisions leaves nothing for the evaluation of capacity to bite upon” (City of York Council v C [2013] EWCA Civ 478; [2014] Fam 10 at [35]); ii) Just because S lacks litigation competence in the placement order proceedings for example does not mean that she lacks subject matter competence (say, in relation to consent): Sheffield City Council v E [2004] EWHC 2808 (Fam) at [23] (“someone can have capacity for one purpose whilst simultaneously lacking capacity for another purpose” And see also [40] and [41]: ““[40] …the Official Solicitor is often engaged in litigation where questions arise in relation to each type of capacity. Not infrequently, for example, as he tells me, he agrees to act as guardian ad litem of a parent, the respondent to adoption proceedings, who lacks the capacity to litigate but who, on investigation, is nonetheless found to have capacity to give agreement to the making of an adoption order in accordance with section 16(1)(b)(i) of the Adoption Act 1976. [41] Correctly, in my judgment, the Official Solicitor accepts that the tests for what I will call "litigation capacity" and "subject-matter capacity" are not identical, and that an adult who lacks the capacity to litigate – lacks "litigation capacity" – may nonetheless have capacity with regard to the matters which are the subject of that litigation – "subject-matter capacity". One example is provided by the kind of adoption case to which I have just referred.” ); iii) The assessment of competence must be made on the current evidence, and in respect of this current and specific decision, as is the approach under the MCA 2005: see §4.4 Mental Capacity Act Code of Practice (“the Mental Capacity Code”).[18]The approach outlined in [14]-[17] above is advanced by the Local Authority in this case, though not wholeheartedly supported on behalf of S or T. That said, it is agreed by all parties that in order to be satisfied that a child is able to make a Gillick competent decision (i.e. has “sufficient understanding and intelligence to enable him or her to understand fully what is proposed”: see Lord Scarman in Gillick above), the child should be of sufficient intelligence and maturity to: i) Understand the nature and implications of the decision and the process of implementing that decision; ii) Understand the implications of not pursuing the decision; iii) Retain the information long enough for the decision-making process to take place; iv) Weigh up the information and arrive at a decision; v) Communicate that decision.[19]For my part, I consider it helpful to test Gillick competence in the way outlined in [18]. As I have said above, while it is abundantly clear that the MCA 2005 does not apply to those under 16 years of age, there is an advantage in applying relevant MCA 2005 concepts and language to the determination of competence to the under-16s, for this will materially assist in maintaining consistency of judicial approach to the determination of capacity or competence of a parent to give consent to adoption or placement, whether that parent is under or over 16 years of age. The capacity to give consent under the ACA 2002 for the over-16s is specifically to be determined by reference to the MCA 2005: see section 52(1)(a) If further support were needed for this approach, I note that Hedley J applied similar thinking in Coventry City Council v C [2012] EWHC 2190 (Fam) at [27] (on the question of consent to accommodation of a child under Part III of the CA 1989) “All consents given under Section 20 [Children Act 1989] must be considered in the light of Sections 1-3 of the Mental Capacity Act 2005”. ; it would be illogical if the court applied a materially different test of capacity/competence depending on which side of their 16th birthday the parent fell. Can a child parent give consent to accommodation of their child (under section 20 Children Act 1989), even if assessed to lack litigation competence in simultaneous adoption or placement proceedings?[20]As issue was joined in these proceedings about S’s competence to consent to placement for adoption, and/or adoption, inevitably attention turned (or turned back) to the question whether S had been, and is, competent to consent to the accommodation of T under section 20 of the CA 1989.[21]Even though the section 20 is treated, and widely understood, as if it depends upon the giving of parental consent, on a closer reading of the section, it will be seen that there is, in fact, nothing there which contemplates specifically the parent giving ‘consent’; the word ‘consent’ does not appear within section 20 at all. The CA 1989 considers the existence or absence of ‘objection’: see section 20(7): “(7) A local authority may not provide accommodation under this section for any child if any person who—(a) has parental responsibility for him; and(b) is willing and able to— (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, objects” (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him,[22]There is no real doubt that, in practice, positive and informed consent of a parent should be obtained for the accommodation of a child under section 20 CA 1989 (see Williams & Anor v London Borough of Hackney [2015] EWHC 2629 (QB)). It is also clear that: “… [i]n order for such an agreement to be lawful, the parent must have the requisite capacity to make that agreement. All consents given under section 20 must be considered in the light of sections 1-3 of the Mental Capacity Act 2005”: per Hedley J in Coventry City Council v C [2012] EWHC 2190 (Fam) at [27], and see Newcastle CC v WM and others [2016] 2 FLR 184 at [45]). To emphasise the point, it is instructive to revisit the principles set out in the Coventry case, per Hedley J at [2012] EWHC 2190 (Fam) ([46]), noting among them: “Every social worker obtaining such a consent is under a personal duty (the outcome of which may not be dictated to them by others) to be satisfied that the person giving the consent does not lack the capacity to do so. In taking any such consent the social worker must actively address the issue of capacity and take into account all the circumstances prevailing at the time and consider the questions raised by Section 3 of the 2005 Act, and in particular the mother’s capacity at that time to use and weigh all the relevant information” [46](ii)/(iii).[23]The relevant information that one would need to be able to understand, retain and weigh up in order to have competency to consent to the accommodation of a child would, in my judgment, be: i) That the child will be staying with someone chosen by the local authority, probably a foster carer; ii) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time; iii) That the parent will be able to see the child.[24]In view of the assessment by Professor Beail (see [56-57] below), there is little dispute that S was Gillick competent to agree to the accommodation of T, at or shortly after T’s birth. The social worker explained the implications in “child-friendly language”; S was able to repeat accurately what she was agreeing to. The social worker describes how she presented S with the documentation to sign; S was clear that she wanted the baby to go into foster care, and signed. S’s father and the midwife were present during this process and appear to confirm that S understood to what she was consenting. T was placed in a foster-to-adopt placement.[25]As I have earlier indicated (see [17(i)] above), the evaluation of competence is decision-specific; so, S’s competence to consent to accommodation of T does not mean that she is competent to consent to T’s adoption. What is the test for establishing the competence of a child parent to consent to the placement and/or adoption of their baby?[26]It is agreed between the parties that I should apply a Gillick test for establishing the competence of a child parent to consent to the placement and/or adoption of their baby, as I have described it in [14]-[17] above. There is no dispute that a young person under the age of 16 can give valid consent to adoption Note, in support of this proposition, that in Re A(Adoption: Agreement: Procedure) [2001] 2 FLR 455, it was conceded (at [37]) that a 14-year-old could give valid consent, but this depended on the person receiving reliable information, that proper explanation should be given on the different procedures, and the person should have the chance to reflect. .[27]However, there is a significant dispute over the extent of the relevant information which should be understood, weighed and retained by S in order that she may make a competent decision on adoption.[28]Miss Cavanagh submits that S (or any young person faced with the prospect of consenting, or opposing adoption) must have, and be able to demonstrate, a “full understanding” (using the statutory language of section 52(5) ACA 2002) of all the implications and consequences of adoption, particularly given the gravity of the decision which the young person is being asked to consider Re A (Adoption: Agreement: Procedure) [2001] 2 FLR 455 at [50]:
“the consequences of consent to a freeing order could not be starker, and that the degree of understanding and the quality of consent must therefore be commensurate.”
. She points to the mandatory requirement for the consent forms (issued under PD5A FPR 2010) to be signed (section 52(7)ACA 2002 “Consent under section 19 or 20 must be given in the form prescribed by rules” (emphasis added) and rule 14.10(1)(a) FPR 2010 Rule 14.10 FPR 2010 “(1) Consent of any parent or guardian of a child – (a) under section 19 of the 2002 Act, to the child being placed for adoption; and (b) under section 20 of the 2002 Act, to the making of a future adoption order,must be given in the form referred to in Practice Direction 5A or a form to the like effect.” ); these forms contain a detailed exposition of the implications of adoption, and its processes, although she does acknowledge that rule 14.10 FPR 2010 contemplates that the requirement is fulfilled if consent is given on a “form to the like effect”.[29]She contends that her approach is faithful to the principles of Gillick, and the Local Authority is wrong to seek to reduce the required level of understanding in establishing the competence of a young person. In short, she contends that the list of information of which the consenting person should have a ‘full understanding’ should not be trimmed “to the bare essentials” just because the parent whose consent is sought is herself a child.[30]Miss Cavanagh points to the ‘Good Practice Guidance for Adoption Agencies and Cafcass: Children relinquished for adoption’ (undated), which advises Cafcass officers to “ensure that consent is given unconditionally and with full understanding of what is involved”. One of the first tasks of the Cafcass officer described in that Guidance is to ensure that the parent is competent. If the Cafcass officer is not satisfied that the person has ‘full understanding’ of the implications of adoption, even if capacitous, then the Cafcass officer does not counter-sign the consent form.[31]Mr. Spencer argues that the person making the decision would need to understand not just the legal implications of adoption, but also the various processes by which adoption can be achieved, distinguishing between the placement order procedure and the adoption application itself; in this he relies on Re A (Adoption Agreement: Procedure) [2001] 2 FLR 455. Straddling the competing arguments of his opponents at the bar, he supports the contention of Miss Cavanagh that the decision-maker must understand the full import of the information set out on the consent forms, even if not precisely in that language, and goes on to argue that the list of relevant information proposed by Ms Dolan QC and Mr Davies (see [37] below) broadly (if not completely) covers that material, albeit using simpler vocabulary.[32]Ms Dolan challenges Miss Cavanagh’s, and to some extent Mr. Spencer’s, approach. She argues that: i) competence to decide the question of consent to adoption will be satisfied if the young person(a) understands “sufficient” information to make the decision (i.e. just the “information relevant to the decision": per section 3(1)(a) MCA 2005),(b) is able to retain that information for a short time,(c) is able to weigh up the information, and(d) communicate the decision; ii) the need for the decision-maker to consider and understand the ‘full information’ under section 52(5) comes later at the point of giving or withholding of consent; section 52(5) refers to the exercise of the decision-making, not the competence of the decision-maker. She contends that it would not be logical or practicable to set different standards of understanding for those just over 16 and those just under 16; she rejects the notion that a higher bar of competence should be set for those under 16 which is, she says, the effect of Miss Cavanagh’s argument.[33]Ms Dolan emphasises the word “sufficient” (i.e. to qualify “information”) as I have re-formulated it in [32](i) above, pointing first to Gillick itself (see [14] above) and then to multiple references to this term (in the context of ‘understanding’) in mental capacity case law including In re C (Adult: Refusal of Treatment) [1994] 1 WLR 290 at pp 292 and 295, and MAB X City Council v MB [[2006] EWHC 168 (Fam) at [74] and [84] ([74]: “Her knowledge and understanding need not be complete or sophisticated. It is enough that she has sufficient rudimentary knowledge…”: my emphasis). She emphasises that to apply the test proposed by Miss Cavanagh would artificially restrict the young person’s Article 8 ECHR rights to autonomous decision-making. She observes, rightly in my view, that Re A (Adoption: Agreement: Procedure) (relied on by Miss Cavanagh and Mr. Spencer, see [31] above, to illustrate the importance of the decision-maker knowing the broad differences of process) was concerned not with the competence of the 14-year old, but with the process by which the young person was invited to exercise her decision-making, and that it is therefore distinguishable from the instant case in that regard.[34]Macur J in LBL v RYJ [2010] EWCOP 2665 See also Baker J in CC v KK & STCC [2012] EWCOP 2136: [69]: “it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors” held that it would not be necessary for a decision-maker to be able to comprehend “all the peripheral detail” (at [24]) in the assessment of capacity to make the relevant decision; in a case concerning residence and the provision of education, Macur J went on to say this at [2010] EWCOP 2665 [58]: “In [the expert’s] view it is unnecessary for his determination of RYJ's capacity that she should understand all the details within the Statement of Special Educational Needs. It is unnecessary that she should be able to give weight to every consideration that would otherwise be utilised in formulating a decision objectively in her 'best interests'. I agree his interpretation of the test in section 3 which is to the effect that the person under review must comprehend and weigh the salient details relevant to the decision to be made. To hold otherwise would place greater demands upon RYJ than others of her chronological age/commensurate maturity and unchallenged capacity, and must understand and weigh all the “salient” details[35]In the same vein, Baker J remarked in PH and A Local Authority v Z Limited & R [2011] EWHC 1704 (Fam) at paragraph 16 (xi):
"[the] courts must guard against imposing too high a test of capacity to decide issues such as residence because to do so would run the risk of discriminating against persons suffering from a mental disability."
[36]Although not cited in argument, I further remind myself of the comments of Chadwick LJ in the Court of Appeal in Masterman-Lister v Brutton & Co (No 1) [2002] EWCA Civ 1889, [2003] 1 WLR 1511: at [79]:
“a person should not be held unable to understand the information relevant to a decision if he can understand an explanation of that information in broad terms and simple language”
So, says Ms Dolan, it is not necessary for S to understand all the peripheral and non-salient information in the adoption consent form in order to be declared capacitous. Nor does she even need fully to understand the legal distinctions between placement for adoption under a placement order and not under a placement order. Indeed, Ms Dolan herself relies in this regard on Re A (Adoption: Agreement: Procedure) at [43] where Thorpe LJ observes that the differences between freeing and adoption are: “… complex in their inter-relationship and it is not to be expected that social workers should have a complete grasp of the distinction between the two, or always to signify the distinction in their discussion with their clients” (my emphasis). If social workers are not expected to understand the complexities of the legislation (or its predecessor) or explain the distinction accurately to the parents with whom they are working, asks Ms Dolan, why should a person under the age of 16 be expected to be able to grasp them in order to be declared capacitous?[37]Accordingly, argues the Local Authority, the salient or “sufficient” information which is required to be understood by the child parent regarding extra-familial adoption is limited to the fundamental legal consequences of the same. The factors discussed at the hearing include This list contains matters which were discussed in the hearing; the list here is my compilation of the relevant factors. : i) Your child will have new legal parents, and will no longer be your son or daughter in law; ii) Adoption is final, and non-reversible; iii) During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live; iv) You may obtain legal advice if you wish before taking the decision; v) The child will live with a different family forever; you will (probably) not be able to choose the adopters; vi) You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited; vii) The child may later trace you, but contact will only be re-established if the child wants this; viii) There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted; ix) For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made.[38]This falls short of the expectation (proposed by Miss Cavanagh) that the person should understand, at the stage of determining competence, the ‘full’ information about placement and/or adoption, including(a) the ways in which parental responsibility is distributed/shared on the making of a placement order, and/or on placement of the child for adoption;(b) it does not address the availability of support services for the parent, nor the availability of public funding;(c) it does not deal with the precise circumstances in which consent can be withdrawn and the different implications for this depending on the stage of the process;(d) it does not refer to the possible involvement of the parent in the matching process;(e) it does not include confirmation that the parent has received no payment for the adoption of the child;(f) it does not seek confirmation from the parent as to who has taken part in the adoption, nor does it address;(g) the circumstances in which an application for leave to oppose adoption can be made. These are all important but for these purposes ‘peripheral’ and ‘non-salient’ matters (deriving from statute or the rules) which need to be addressed to some degree at the second stage when the parent is being asked to ‘exercise’ her competent decision-making.[39]Ms Dolan seeks to draw support from my comment (albeit obiter) in Newcastle City Council v WM & others [2015] EWFC 42 at [14](iii) wherein I referred to the mother in that case as having capacity to consent to adoption as “she could describe the essential characteristics of adoption (i.e. the permanence of the arrangement, that she would not be able to choose the adopters, that the children would cease legally to be hers, and that she would have indirect contact only)”.[40]Finally, Ms Dolan pointed out that if the parent gives consent in placement proceedings under section 21, there is no requirement for the parent to sign the detailed consent form. The court makes the assessment of parental understanding of adoption providing the person is capacitous within the meaning of the MCA 2005 (see section 52(1)(a)). She argues that there should be no materially different approach to the obtaining of consent under section 19 and 20 on the one hand, and section 21 on the other.

Should steps be taken to help the child parent to reach a competent decision?

[41]When determining capacity under the MCA 2005, a court must be satisfied that “all practicable steps to help” the decision-maker to make the decision have been taken (section 1(3) MCA 2005). I see no real reason to take a different approach, indeed every reason to follow the approach, in relation to a child parent in these circumstances. Adapting the language of section 3(2) MCA 2005, a young person under the age of 16 will be treated as understanding the information relevant to a decision if she is able to understand an explanation of it given to her in a way which is appropriate to her circumstances (using simple language, visual aids or any other means).[42]While there were differences of emphasis in argument on this point, all parties before me appear to agree that it would indeed be reasonable to give S some age-appropriate information about adoption in an age-appropriate way in order to enhance her decision-making potential. This should not, in my view, involve a lengthy programme of class-room teaching, or anything of that sort; it may in fact be done in one reasonably informal session, but it would probably be better done in two or more sessions over a short period, to give her the chance to assimilate the information and improve her understanding of it. The information shared with S in this exercise should not violate her clear desire to know nothing specific about T nor T’s situation.[43]This approach enhances S’s right to exercise autonomous decision-making under Article 8 ECHR; this is a matter of considerable importance, given the significance of the issue for both S and T. In what factual circumstances is the section 31(2) CA 1989 ‘threshold’ likely to be met in relation to a relinquished baby, so as to found jurisdiction for the making of a placement order under section 21(2)(b) ACA 2002?[44]There is a dispute between the Local Authority on the one side, and the respondents (the mother and child, through their guardians) on the other, as to whether the threshold criteria are established for the purposes of section 21(2)(b) ACA 2002; it is clear that neither section 21(2)(a) nor (c) are satisfied.[45]This raises, essentially, a question of fact. I have not in fact been asked to decide the question of fact, but have been addressed on the issue, and consider it right to express my view.[46]Relinquished baby cases fall into a special category of public law cases, where conventional concepts (if I may so describe them) of harm, significant harm, and likelihood of harm do not generally arise. The question, therefore, is whether, and if so in what circumstances, a relinquished baby would be the subject of a care or placement order. The decision of Cazalet J in Re M (Care Order)(Parental Responsibility) [1996] 2 FLR 84 is an example of a case where the threshold was found to have been met; this case concerned a baby boy who was only a few days old and was abandoned in a hold-all on the steps of a health centre. Cazalet J found the threshold proved under section 31(2) CA 1989, saying:
“the very fact of abandonment establishes that M [the child] was suffering from significant harm immediately before the rescue operation was carried out by the two workers from the clinic. To leave a child a few days old, alone and abandoned as occurred here, with all the risks that such entails, shows in the clear terms a complete dereliction of parental responsibility. ‘Harm' means ‘ill-treatment or the impairment of health or development' (see s 31(9) of the Children Act 1989). To abandon a child in the manner in which M was abandoned must constitute ill-treatment. Accordingly, I consider that M was suffering from significant harm immediately prior to being found by the clinic workers”
Cazalet J further found that M was likely to suffer significant harm by reason of knowing nothing of his parentage, background or origins.[47]In Re M & N (Twins: Relinquished Babies: Parentage) [2017] EWFC 31, I found the ‘threshold’ (under section 21(2)(b) ACA 2002) established in relation to relinquished twins, having concluded that the mother had made few preparations for their future care (see [8]) and had been only intermittently co-operative with health professionals; both parents had abrogated responsibility for the children (see [26]), without any ostensible regard for their well-being. In that case, no party argued that the threshold was not met.[48]By contrast, in Re AO, Baker J concluded that the threshold was not made out, where the parent had made reasonable arrangements for the welfare of the relinquished baby. He said this at [19]:
“… the fact that the mother has given up her baby does not by itself satisfy the threshold criteria under section 31. When a baby has been simply abandoned on a doorstep, it is likely that criteria will be satisfied – each case will, as always, turn on its own facts. In cases where the mother has reached the difficult decision that she cannot keep the baby, notified the local authority in advance, and made responsible plans for the relinquishment of the baby in a way which minimises the risk of harm, it is in my judgment unlikely to be the case that the threshold criteria will be satisfied. It is likely that a baby deprived of her mother's care will suffer some form of harm but that will be diminished if the baby is swiftly moved to another carer in a planned way. Even when a baby suffers harm from being deprived of her mother's care, it does not follow in these circumstances that the harm can be described as being attributable to the care given to the child not being what it would be reasonable to expect a parent to give. A mother who concludes that she cannot care for her baby, and who notifies the authorities and makes responsible plans for relinquished in the baby at birth, is not, in my judgment, acting unreasonably”
. In the preceding judgment in the same case dealing with jurisdiction issues (ReJL & AO (Babies Relinquished for Adoption) [2016] EWHC 440 (Fam) at [50]), Baker J had made the point (reinforced above) that the relinquished baby may be caught by the threshold criteria, but it all depends on the individual facts and the circumstances of the singular case.[49]In this case, the Local Authority assert that the threshold is made out under section 21 ACA 2002. They rely on a combination of factors including the lack of a relationship between mother and child, the lack of contact or interest in the child’s welfare, and the assertion that “the mother has rejected the child outright with vehemence”.[50]Mr. Spencer and Miss Cavanagh dispute that the threshold is established in this case; they reject the proposition that T has suffered harm or is likely to suffer harm. They point to the reasonableness of the mother’s decision-making, which she has reached in concert with the social workers from the moment she knew she was pregnant. They argue that, while each case must be viewed on its own facts, the facts here are closer to those described by Baker J in Re AO than I described in Re M&N.[51]Having reflected on the material before me, I am inclined to agree with Mr. Spencer and Miss Cavanagh. This is a case in which for some time before T’s birth, S had made reasonable plans for her baby; unlike the mother in Re M&N she prepared for the birth of her baby, and co-operated with the professionals both before and after the birth. She participated, doubtless at considerable personal distress, to ante-natal screenings and checks over a number of weeks. That she has been clear in her wish to have nothing to do with T now does not represent her dereliction of parental responsibility, but an exercise of it.[52]I do not propose formally to rule on this issue, as the hearing had not been set up for me to hear factual evidence on the threshold point. But I rather suspect that the undisputed facts are sufficiently well-established on the papers as to render such exercise unnecessary, and the provisional view I have articulated above will be enough to allow the parties to chart the way forward. Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?[53]The first point to note is that while the court can declare that an adult has, or does not have, capacity to consent to adoption, the court cannot actually give consent to adoption on behalf of the incapacitous adult parent (see section 27(1)(e)/(f) MCA 2005).[54]In the circumstances posed by this question (which Miss Cavanagh submits is a real likelihood on these facts) it is suggested that the adoption could proceed as a private adoption on these facts under section 44 (see [12] above), with the prospective adopters serving notice of intention to adopt, and within that application, the court may dispense with the consent of the mother under section 47(2)(c) on the basis that T’s welfare demands it. Although there is a reasonable argument that T has been placed with her current carers as adopters (see generally on this Re A (Children) (Adoption: Scottish Children's Hearing) [2017] EWHC 1293 (Fam); [2017] 4 W.L.R. 1), there are two likely difficulties in that approach i) There is an argument that T was placed with the foster-to-adopt carers straight from hospital “otherwise than as prospective adopters” (see section 44(8)(a)); ii) T’s consent to this placement was obtained within 6 weeks of T’s birth and is therefore ineffective as a consent to placement for adoption Section 52(3) ACA 2002 . It seems possible for me to order the placement of T with the foster-to-adopt carers under section 42(2)(a), but the better option may be, as Miss Cavanagh proposes, that the section 44 route is deployed by which an adoption application could be issued, and S’s consent dealt with in that context.[55]Mr. Spencer, who like Miss Cavanagh contemplates the outcome posed by the question above, proposes that if the statutory route does not lead to a satisfactory answer, the court could invoke the inherent jurisdiction to ‘regularise the position’ and authorise the placement of T with the proposed adopters. For my part, I am satisfied on the current facts, that there is a sufficient prospect that the provisions of Chapter 3 of the ACA 2002 discussed above will offer a solution in this case; if S’s consent is not, or cannot be, validly given to T’s adoption or placement for adoption, I shall hear further argument on the precise route-map to the outcome to which all aspire.

Assessment of S’s capacity

[56]In June 2017, S was assessed by Professor Nigel Beail, Clinical Psychologist. S is described by him as developmentally younger than her chronological age; her speech and language are delayed. She has an IQ of about 73, with verbal skills better than her non-verbal; she attends a school for children with special needs. Professor Beail opines that:
“… despite her developmental disabilities [S] has the competency to understand her current situation, the options and consequences of choosing one way or the other. She was clear as to what are her views and that she has not been put under any pressure. In my opinion, [S] demonstrated that she has sufficient verbal ability to discuss the issues and sufficient maturity to sit with me and discuss them.”
[57]While this assessment is helpful in providing general background about S’s functioning, and while Professor Beail has additionally furnished some useful advice about how to convey information to, and discuss issues with, S, the report is of minimal assistance in relation to the specific issue with which the court is now concerned. A specific assessment is therefore required, and reasonably urgently, on her capacity to consent to adoption. As a prelude to that assessment, S should receive some “age-appropriate information about adoption in an age-appropriate way in order to enhance her decision-making potential” (per [42] above). I am told that Professor Beail is available to undertake this in the next few days.

Discussion and conclusion

[58]For more than thirty years, the Gillick test has been applied in evaluating the competence of young people in their decision-making on a wide range of issues. Counsel were unable, notwithstanding the depth and breadth of their researches, to identify a case in which Gillick had been discussed in the context of consent to adoption. Given the uncertainty surrounding S’s competence to consent to adoption, the Local Authority was right to bring the issue before the court. Having done so, the scope of the disagreement about the correct approach was revealed.[59]In the event, there was little dispute between the parties on the issues raised at [6](i), (ii), (iv), and (vi) above; the differences in approach were more of emphasis and detail than substance. In relation to the issue raised at [6](v), I have indicated that I preferred the submissions of the respondents, on the facts of this case (see [51]). As to the central issue set out in [6](iii), persuasive though Miss Cavanagh’s arguments are, I consider that the approach of the Local Authority (see [32]-[40] above) is the correct one. In my judgment, it is important to distinguish, as Ms Dolan argued at [32] above, between the competence to make a decision, and the exercise of decision-making. I feel fortified in adopting this approach given that it follows entirely Hedley J’s reasoning in Coventry City Council v C (above: see [22]) (on the related issue of consent to section 20 accommodation). viz. “even where there is capacity, it is essential that any consent so obtained is properly informed and, at least where it results in detriment to the giver's personal interest, is fairly obtained” [28]; “If the social worker is satisfied that the person whose consent is sought does not lack capacity, the social worker must be satisfied that the consent is fully informed: Does the parent fully understand the consequences of giving such a consent? Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent? Is the parent in possession of all the facts and issues material to the giving of consent?” [46](v) ibid.[60]I see considerable merit in borrowing key aspects of MCA 2005 and importing them into the assessment of Gillick competence of a young person at common law, in order to maintain a consistency of approach to the assessment of capacity of adult decision-makers and children decision-makers. Just as the capacity threshold should not be set artificially high under the MCA 2005, nor should it be for children. It follows that in order to satisfy the Gillick test in this context the child parent should be able to demonstrate ‘sufficient’ understanding of the ‘salient’ facts around adoption; she should understand the essential “nature and quality of the transaction” per Munby J in Sheffield City Council v E [2004] EWHC 2808 (Fam) at [19] and should not need to be concerned with the peripheral.[61]It will, however, be necessary for the competent child decision-maker to demonstrate a ‘full understanding’ of the essential implications of adoption when exercising her decision-making, for the independent Cafcass officer to be satisfied that the consent is valid. If consent is offered under section 19 and/or section 20, it will be necessary for a form to be signed, even if not in the precise format of that identified by PD5A. I accept that on an issue as significant and life-changing as adoption, there is a greater onus on ensuring that the child understands and is able to weigh the information than if the decision was of a lesser magnitude (see Baker J said in CC v KK & STCC [2012] EWHC 2136 (COP) (§69)). This view is consistent with the Mental Capacity Code, which provides at para.4.19:
“… a person might need more detailed information or access to advice, depending on the decision that needs to be made. If a decision could have serious or grave consequences, it is even more important that a person understands the information relevant to that decision”
(emphasis added).[62]By way of summary and conclusion, I distil the following principles from my analysis above: i) The test of competence for decision-making of a young person is that set out in the House of Lords decision of Gillick v West Norfolk and Wisbech Area Health Authority [1985] 3 WLR 830, [1986] 1 AC 112 (“Gillick”) (“a sufficient understanding and intelligence to enable him or her to understand fully what is proposed”); in this regard, the child should be able to: a) Understand the nature and implications of the decision and the process of implementing that decision; b) Understand the implications of not pursuing the decision; c) Retain the information long enough for the decision-making process to take place; d) Be of sufficient intelligence and maturity to weigh up the information and arrive at a decision; e) Be able to communicate that decision. ii) The determination of a child’s competence must be decision-specific and child-specific; It is necessary to consider the specific factual context when evaluating competence; iii) Just because a child lacks litigation competence in (for example) care or placement order proceedings does not mean that she lacks subject matter competence in relation to consent to section 20 CA 1989 accommodation of her baby, or indeed to the adoption of the baby; iv) The assessment of competence must be made on the evidence available; v) When considering the issue of Gillick competence of a child parent, an important distinction must be drawn between the determination of competence to make the decision, and the exercise by that young person of their competent decision making; vi) The relevant information that a child under 16 would need to be able to understand, retain and weigh up in order to have competency to consent to the section 20 accommodation of a child would be: a) That the child will be staying with someone chosen by the local authority, probably a foster carer; b) That the parent can change her mind about the arrangements, and request the child back from accommodation at any time; c) That the parent will be able to see the child vii) The salient or “sufficient” information which is required to be understood by the child parent regarding extra-familial adoption is limited to the fundamental legal consequences of the same; this would be: a) Your child will have new legal parents, and will no longer be your son or daughter in law; b) Adoption is final, and non-reversible; c) During the process, other people (including social workers from the adoption agency) will be making decisions for the child, including who can see the child, and with whom the child will live; d) You may obtain legal advice if you wish before taking the decision; e) The child will live with a different family forever; you will (probably) not be able to choose the adopters; f) You will have no right to see your child or have contact with your child; it is highly likely that direct contact with your child will cease, and any indirect contact will be limited; g) The child may later trace you, but contact will only be re-established if the child wants this; h) There are generally two stages to adoption; the child being placed with another family for adoption, and being formally adopted; i) For a limited period of time you may change your mind; once placed for adoption, your right to change your mind is limited, and is lost when an adoption order is made. viii) When determining the competence of a child parent in these circumstances, “all practicable steps to help” her, as the decision-maker, to make the decision, must have been taken; a young person under the age of 16 will be treated as understanding the information relevant to a decision if she is able to understand an explanation of it given to her in a way which is appropriate to her circumstances (using simple language, visual aids or any other means). ix) The decision to consent to adoption is significant and life-changing; there is a greater onus on ensuring that at the decision-making stage the child understands and is able to weigh the information; x) Before exercising her decision-making, the child parent should freely and fully understand the information set out on the consent forms (which information is drawn from the ACA 2002 and from the Regulations); the information should be conveyed and explained to the young person in an age-appropriate way; there is no expectation that the young person would be able to understand the precise language of the consent forms; xi) The question whether the threshold criteria is established in a relinquished baby case (section 21(2)) ACA 2002) is one of fact; xii) If there is any doubt about the competence of a child parent to give consent to adoption or placement for adoption, the issue should be referred to a court.[63]The parties will need to reconvene a hearing once the work of Professor Beail has been completed, and the competence assessment performed. Professor Beail should undertake the work urgently; I am told he can. Delay is of course inimical to the welfare of both T Section 1(3) ACA 2002 and S Section 1(2) CA 1989 , and the continued process no doubt causes much anguish to S.[64]That is my judgment.

Cited in 5 later judgments