West Law Report

Judges must remember that adoption is for life

Posted in Children, Times Law Report by mrkooenglish on June 12, 2008

From The TimesMay 29, 2008

Judges must remember that adoption is for life
Court of Appeal
Published May 29, 2008
SB v X County Council
Before Lord Justice Thorpe, Lord Justice Wall and Mr Justice Munby
Judgment May 20, 2008

In contentious adoption cases, where the court was dispensing with parental consent, the question of any contact between the children and their family members was for the court and not the local authority to resolve.

The Court of Appeal so held in dismissing an appeal brought by the mother, SB, against the decision of a county court judge on October 12, 2007, to dispense with her consent and make placement orders in respect of two of her children, S and D. Reporting restrictions were imposed preventing the publication of any details disclosing the identification or location of any of the parties.

LORD JUSTICE WALL, delivering the judgment of the court, said that the case raised in a clear and straightforward way two points of considerable importance for the future development of the law and practice of adoption.

The first was a pure point of law: what was the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002?

The second was a mixed question of policy and practice: was it a proper exercise of the power under section 52(1)(b) to dispense with parental consent to the making of a placement order, when the adoption agency in question proposed to conduct a search for both fostering and adoptive placements; a dual approach?

SB was 24 and had five children. Two of the children were freed for adoption in January 2006 and had been adopted by a couple and had no contact with their other siblings.

The youngest child was born in September 2006 and had remained in his mother’s care, under a supervision order in favour of the local authority.

S and D were seriously damaged children. In January 2007, the local authority’s adoption and permanence panel recommended that there should be a dual plan of adoption and fostering for S. The same psychiatrist advised both that contact between D and her parents should cease, and that placement orders under the 2002 Act should be sought. Accordingly, the local authority applied for placement orders in relation to both children and it was those applications which fell to be decided by the judge in October 2007.

In their Lordships’ judgment, the answer to what was meant by “welfare” in section 52(1)(b) was to be found in section 1 of the 2002 Act. Section 1(1) plainly applied when the court was deciding whether or not to dispense with parental consent to a placement order.

Such a decision was manifestly a decision relating to the adoption of a child. In those circumstances, section 1(2) of the 2002 Act required the court to treat the child’s welfare throughout his life as its paramount consideration.

Judges should apply the statutory language with care to the facts of the particular case. The message was prosaic, but was as simple and as straightforward as that. It very much echoed what the Court of Appeal said in In re S (a Child) (Special guardianship order) (The Times February 9, 2007) in relation to special guardianship orders.

Section 52(1)(b) was concerned with adoption and what had to be shown was that the child’s welfare required adoption as opposed to something short of adoption. A child’s circumstances might require statutory intervention, but that was not to say that the same circumstances would necessarily require the child to be adopted.

That did not mean, however, that there was some enhanced welfare test to be applied in cases of adoption. The difference was simply between section 1 of the Children Act 1989 and section 1 of the 2002 Act.

Section 1(2) of the 2002 Act, in contrast to section 1(1) of the 1989 Act, required a judge considering dispensing with parental consent in accordance with section 52(1)(b) to focus on the child’s welfare throughout his life. That emphasised that adoption, unlike other forms of order made under the 1989 Act, was something with lifelong implications.

The judge in the instant case did exactly what was required of him when dispensing with SB’s consent.

Their Lordships had found the policy of the local authority to have a dual approach more difficult. However, they had reached the conclusion that a combination of the tests in section 1(1) and 1(6) of the 2002 Act in particular justified the local authority’s pragmatic approach.

A local authority could be satisfied that the child ought to be placed for adoption within the meaning of section 22(1)(d) of the 2002 Act even though it recognised the reality that a search for adoptive parents might be unsuccessful and that, if it was, the alternative plan would have to be for long-term fostering.

Their Lordships wished to approach the issue of post-adoption contact with caution. Historically, post-adoption contact between children and birth parents was perceived as highly exceptional. That now had to be revisited under sections 26 and 27 of the 2002 Act.

The judge was right to make a contact order under section 26, and in their Lordships’ judgment, the question of contact between D and S, and between the children and their parents, was a matter for the court, and not the local authority, or the local authority in agreement with prospective adopters.

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