RSS Feed

step-parent adoptions and nothing else will do

The Court of Appeal in Re P (a child) 2014 considered an appeal from a Judge who refused a step-parent adoption having applied the law (or at least the gloss on the law applied in the last year)


Boiling it down to one question – does ‘nothing else will do’ apply to step-parent adoptions where the biological parent who is being ousted as the legal parent doesn’t consent?  Well, of course it does, one would immediately say. The whole thrust of Re B was about ‘non-consensual adoption’, that’s a  non-consensual adoption. And the whole hook of Re B was using the word ‘requires’ in the s52(1) (b) test  to carry with it a huge additional weight of proportionality and nothing else will do – running counter to the former President’s decision in  a previous  Re P that ‘require was a perfectly ordinary English word’  to import a meaning  that was much much more. (To be fair, that’s an additional amount of meaning taken directly from the ECHR decision of  Y v UK, which in effect was ‘the ECHR lets the UK persist in its weird ideas about adoption, but we only tolerate it if you take it bloody seriously’)


The legal test for dispensing with the father’s consent to make a step-parent adoption  (and these cases are almost always about fathers being cut out of children’s lives and legal relationship of fathers being severed – you just don’t get many stepmother adoptions) is s52(1) (b),  – the child’s welfare requires consent to be dispensed with.


So, of course, it must be ‘nothing else will do’.


And if it is “nothing else will do” then it is going to be spectacularly hard to demonstrate that for any proposed step-parent adoption  (not just that it would be better for the child to make the order but that there is literally no other solution – ie the status quo can’t remain for reasons which are hard to fathom, looking from the outside)


So, nothing else will do almost certainly kills off step-parent adoptions.

No, the Court of Appeal say otherwise.  (I will make it plain that I think this decision is wrong, but it’s the law, and we are stuck with it. I think it flies in the face of common sense, ignores the principle of least interventionist order and is particularly prejudicial to birth fathers)


Here is the Court of Appeal test for step-parent adoptions  (drawn from a 1999 ECHR case, Soderback v Sweden, which distinguished between State adoption and adoption within part of the biological family)


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.


Those all seem to me very good reasons for a step-father having PR, but why are they good reasons for making an adoption order and changing a step-father into a legal father, and changing the biological father into a person with no connection to the child whatsoever?


The Court of Appeal do say that where the biological father is involved and opposes, the position is that the adoption should be a rare event and that the case ought to be resolved by making private law orders instead (there’s the ability to grant a step-father PR, or Child Arrangement Order (residence), even a Special Guardianship Order – although that would be insane, because it would give the step-father the legal power to override the birth mother. That’s so crackers that… it will probably happen within the next year)


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.

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


The earlier authorities on contested step parent adoptions thus still apply, despite their antiquity so here they are


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.
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.



This is going to make the issue of service of the birth father a very critical issue. If the birth father has been served and doesn’t turn up, the Court will probably make the step parent adoption order if it can be shown that the current family unit is settled and happy and that the birth father’s role has been limited. If he does turn up, the Court will probably NOT make the order.  Thus, making sure that the birth parent has been served is vital, and of course the likelihood is that these applications will be made after mum and birth father have been estranged for some years and without the benefit of public funding.



About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

8 responses

  1. Ashamed to be British

    If the scenario is that the father does not consent, or has been alienated by the mother then I am a nay sayer, that would be FORCED ADOPTION. I am not against adoption, but I am against forced adoption, it simply is not on and should never have entered our courts as an option under any circumstance.

    Flipping the coin … why should a step father get the go ahead to adopt a couple of children he has moved in with, when he doesn’t bother with his own biological children? These children being in care due to his lack of interest, why should he have the right to be called a father when he can’t be a father to the kids he’s put on this planet? Social services wouldn’t entertain him as an option to care for his own children if they needed to remove them from the mother, so why entertain him for someone else’s?

    • Miranda Dealler

      Does the judgement say that he has other children who have been taken into care. I read it quite cursorily but don’t remember it

      • the step-father in this judgment is Mr TMI – I have just double-checked and can’t see any reference to Mr TMI having had children in another relationship or children taken into care. I can’t, to be honest, see a word of criticism against Mr TMI in the judgment.

        (My inherent loathing for step-parent adoptions as a device is not affected by this, but it would not be fair to Mr TMI to paint him as a feckless man who dumped his own children and adopted new ones; nothing in the judgment suggests this. I am fairly sure, re-reading Ashamed to Be British’s comments that her passage being ‘flipping the coin’ is a hypothetical example, not intended to refer to this case, but owing to confusion, I wanted to clear this up)

        I believe that the thrust of this case is that where the birth father objects, step-parent adoption will not be appropriate. But that ‘nothing else will do’ is not the test the Court has to have in mind where there is not an objection.

      • Ashamed to be British

        Sorry for the confusion – this was based on my own experience. Why was my father allowed to adopt his stepchildren while I was in care and he didn’t give a shit, hardly parent material -_-
        As a result I am an angry and very messed up adult, I don’t say it can’t work as there are plenty of dads who do look after their own along with others, but to replace your own with someone else’s goes against the grain for me and should not happen.

        Another worry I would have, in case Mr TMI does not have children, would he treat any children they have together differently due to the bonding process that he cannot have with biological children?

  2. Very interesting article. I myself am a step parent. Because of my difficulties i decided to start a website to help step parents, co parents, divorced parents, etc.

    Check it out and let me know what you think!

  3. Pingback: step-parent adoptions and nothing else will do ...

  4. I also find the CA reasoning difficult to follow here and HHJ Jones’ easier. Perhaps the CA thought that he should have given more weight to the children’s views? They are quite old after all so probably able to understand the consequences of the orders (which apparently they wanted). That’s not made explicit though.

    • I think that the Court of Appeal are wrong here, but they probably realised that enforcing “nothing else will do” would just kill step-parent adoptions stone dead, because it is practically impossible to argue for adoption rather than the status quo in those cases if you have to say that adoption is not just ‘preferrable’ or ‘better’ but that the status quo won’t do.

      (I still would have done that, I’m not a fan of step-parent adoption – I’d go for an order that gives step-father a share of PR and if surname is a major issue allow change of surname)

%d bloggers like this: