An exceptionally sad and legally difficult case, handled with care and delicacy by all involved.
Re S (Child as Parent: Adoption: Consent)  EWHC 2729 (Fam)
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
This is an unusual case in that everyone in the room was very clear that the outcome for T would be adoption and that this was the right thing for T, but the difficulty was in how to get there.
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 jurisdiction for 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?
There was an argument as to exactly how much understanding S would need to have (or reach) about what adoption involves – does she need to understand what a Placement Order is and what an adoption order is?
If I may say so (and I may, because this is my blog), Bridget Dolan QC makes one of the best points I have ever seen in relation to that
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)  EWCA Civ 1889,  1 WLR 1511: at :
“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  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?
If I may quote from Kite Man :- “Hell yeah”
I don’t think it is generally considered becoming to mic-drop after making an awesome point in the High Court, but I think it was warranted for that.
Cobb J helpfully draws together some guidance on what exactly a person should be able to understand when agreeing to s20 accommodation, and what exactly a person should be able to understand when agreeing to adoption. This is extremely clear and helpful. Of course.
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” 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  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  3 WLR 830,  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.
The Court also say that the person can be helped in their comprehension and understanding – obviously considerable care needs to be taken not to lead or influence any 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 this case, the Court directed an assessment of capacity to look at all of these issues. The Court had to look at whether threshold would be met IF the mother did not have capacity to agree to adoption (since the alternative legal route requires that threshold is established)
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)  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)  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 ) and had been only intermittently co-operative with health professionals; both parents had abrogated responsibility for the children (see ), 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 :
“… 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 (Re JL & AO (Babies Relinquished for Adoption)  EWHC 440 (Fam) at ), 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.
So IF mother lacks capacity to consent to adoption AND threshold is not met on the facts of the case, what is left?
Well, a private adoption is mooted, but that’s not straightforward either. It really depends whether the carers (who are foster-to-adopt carers) are considered as prospective adopters (when they can apply after 10 weeks) or foster carers (who would have to wait for a year) and that’s not a straightforward thing to resolve.
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  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)  EWHC 1293 (Fam);  4 WLR 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.
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.