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Tag Archives: re p a child 2014

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)

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1174.html

 

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.

 

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Go on then, appeal me, I dare you

 

The trial judge in Re P (A child) 2014 doesn’t QUITE say what I say in the title above, but it isn’t far off.

 

http://www.familylawweek.co.uk/site.aspx?i=ed130704

 

“If you do not like it, there is always the Court of Appeal.  Good luck.”

 

The Court of Appeal, reading that sort of thing in a transcript, don’t like it. It is rather akin to telling the heavily refreshed man with the tattoos on his neck that, yes, I AM looking at your bird.

 

How on earth did the Judge come to say that? Was it a truly outrageous application? Well, not really. It was the parents in a case suggesting that the grandparents who lived in Poland ought to be assessed. (And yes, that’s Poland, not darkest Peru or a remote part of the Arctic circle)

“MR SEFTON: Your Honour, we have raised with the Local Authority as well as other family members putting themselves forward.  The paternal and maternal grandparents have put  

THE JUDGE:  Whereabouts are they?

MR SEFTON: They are based in Poland.

THE JUDGE: Yes.  There are certain practical difficulties here.

MR SEFTON: Of course, there are practical difficulties.

THE JUDGE: Because, as in the next case,    the parallels are remarkable    without giving you any details, the next family are not from this country, the father has vanished very conveniently and the mother is saying, “He did it.  I did not.  Let me have my children back” and it might be that they are on the next bus to whether it is Paris, Berlin, Rome, whichever country they are from, where, miraculously, the father will spring up.  So England will not wash its hands of children who are here.  The applies to this child as well as in the next case.  That is one huge difficulty about considering family members who are natives of and residents in Poland.  If you do not like it, there is always the Court of Appeal.  Good luck.”

“MS ROBINSON: Your honour, clearly, a lot of work is going to have to be done in terms of the timetabling of this matter.  However, with regards to the extended family members, the Guardian is anxious that there is at least some enquiry made of them because this little girl is Polish and there are going to be significant cultural considerations that have to be borne in mind by this court.  I understand that both sets of grandparents are due to visit this country over the course of the next few weeks and the Guardian would like for both sets to at least be spoken to and for some enquiries to be made.  I also understand that there was a direction made by you earlier in these proceedings with regards to information from Polish Social Services regarding the father’s elder child and that information has, as yet, not been made available.  Again, I would ask that that is chased and that that information is available as soon as applicable.

THE JUDGE: Yes.

MS ROBINSON: I do not think there is anything more that I can add at this stage.

THE JUDGE: I am sure what I was saying to Mr Sefton is not lost on you, Ms Robinson, but the Children’s Guardian must not think that the panaceatic remedy will be the unimpeachable grandparents from Poland.  Poland is one short hop away from Merseyside and I very much doubt that I will be entertaining that as a solution should I come to the conclusion that this injury was non accidental, that it was perpetrated by one or both of the parents, that the other failed to protect or is lying through his or her teeth and in circumstances whereby it is not safe to reunite the family.  If it is not safe in this country, it would not be safe in Poland.  So, if anybody has the notion that the solution is rehabilitation to a member of the extended family in Poland, I would not share that sentiment in those circumstances.  There we are.

MS ROBINSON: But your honour would not be opposed to the Local Authority making enquiries of the grandparents when they are in this country in terms of  

THE JUDGE: No, but what I am saying is, and I direct my remarks to Ms Williams as I do to you, this is a game of chess, not draughts.  Any fool can play draughts and move one step at a time.  It takes rather more skill to play chess where you have to think several moves ahead.  That is what I am saying.  If it sounds like a crude exposition, then I apologise but that is what I have in mind.”

 

It is not a huge shock that with that sort of expressed view, the grandparents did not pursue their claim. It ought to have been appealed there and then, but wasn’t. By way of context, this exchange came after the Supreme Court’s decision in Re B  (nothing else will do)

 

There follows a lovely bit, which is almost something out of Allo Allo

 

Finally in this context, we have the submissions by Ms Bannon on behalf of the children’s guardian.  I quote from her skeleton.  Referring to the July hearing, Ms Bannon says this:

“The judge made it clear to all that rehabilitation of the child to Poland was not an option and this set the backdrop against which all placement options were considered.”

39. Now, that description of the guardian’s position is, we are told, a surprise to the social workers.  Equally, Ms Bannon tells us that the social workers’ surprise at what she has said is also a surprise to the guardian. 

 

The Court went on at a later final hearing to make a Placement Order, and the parents appealed that.

 

It is no huge shock that the Court of Appeal felt that the Judge had got it wrong in not exploring the possibility that the child could be placed with relatives in Poland. A consequence of that was that these proceedings, which could have been concluded in September last year, had an assessment been done, is still going on.

 

The Court of Appeal had this to say about when robust case management crosses the line
56. I cannot, however, leave this case without expressing my disappointment with the turn of events at the hearing on 26 July 2013.  There are many pressures in various fields of litigation, none perhaps more so that in family proceedings, for speed and efficient use of resources.  However, there are proper limits to robust case management. 

57. In my judgment, it is regrettably all too clear from the transcript that we have seen of the hearing on that day that, unfortunately, this judge appears to have closed his mind to any solution for this child’s future in Poland.  My Lord has referred to the relevant passages of the transcript.  There is a distinction properly to be drawn between case management and premature jumping to conclusions.  Unfortunately, it seems to me that the judge’s conduct of the hearing on 26 July fell very much on the wrong side of that line.

 

and

 

I accept Mr Downs’ submission that “The reality is that two willing sets of grandparents were overlooked because the judge set his face against a placement out of England and Wales”.

60. The local authority submits that the social workers thought that the option had not been closed out, but if that is what they thought, then it appears they made no efforts to find out whether there was any possibility of a placement within the wider family in Poland.  Nor does it appear from the evidence that they asked what should have been an obvious question: why was the maternal grandmother was proposing to come and live in Warrington on her own in order to be the carer for the child?  What was to happen about all her other family commitments in Poland and how long was she proposing to stay?

61. In making these points, I am impressed by the fact that the guardian’s solicitor, Miss Robinson, pressed the judge at the hearing in July to no avail, that the guardian herself was present at that hearing and that she formed the view that the judge had closed out the option.  At the very least, it suggests that Mr Downs’ interpretation was not an unreasonable one. 

62. I do appreciate that the local authority have great burdens put upon them, but they are, as Mr Downs submits, subject to a positive obligation under Article 8 to consider ways of retaining a child within the family.  That positive duty is owed also by the court.  Mr Downs has not cited any authority, but the principle is well known.  It is reflected in the decision of the Grand Chamber of the European Court of Human Rights in TP and KM v the United Kingdom (Application No. 28945/95).  I sat as the UK ad hoc judge on this case. 

63. At paragraph 71 of its judgment, and in the context of Article 8 and the margin of appreciation in relation to a local authority’s duty to disclose relevant information to the parent of a child who had been taken into care, the Grand Chamber held:

“71.  The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake.  Thus, the Court recognises that the authorities enjoy a wide margin of appreciation, in particular when assessing the necessity of taking a child into care. However, a stricter scrutiny is called for in respect of any further limitations, such as restrictions placed by those authorities on parental rights of access, and of any legal safeguards designed to secure an effective protection of the right of parents and children to respect for their family life. Such further limitations entail the danger that the family relations between the parents and a young child would be effectively curtailed (see, amongst other authorities, the Johansen v. Norway judgment of 7 August 1996, Reports 1996 III, p. 1003, § 64).”

64. The judge’s observations give insufficient weight to the Convention jurisprudence.  Judges have to be very careful in the way in which they express themselves.  So if what they are really intending to do is to express a provisional view only to help the parties, they have to underscore, underline and make it clear that it is a provisional view only.

65. This case still has a very long way to go, sadly, before a permanent decision is made about the child’s future care and no one is predicting what that decision will be.

 

Italian C-section case – the final chapter

 

I don’t know that this one needs a lot of introduction – it was national, if not international, news in December (although the facts were rather different to the media reports).

This is the judgment from the adoption hearing, which was the last stage left.  It was allocated to the President of the Family Division, a judge who has not been afraid to grant leave to oppose  (indeed his lead judgment in Re B-S on that very point was the decision that led to such changes)

 

Re P (A child) 2014

http://www.bailii.org/ew/cases/EWHC/Fam/2014/1146.html

You may remember from all of the press reports at the time that mother now had solicitors and was going to fight for her child back. That has not materialised. As the President says :-

 

 

  • As of 1 April 2014 the position remained as it had been on 17 December 2013. Despite what had been said in the correspondence from Brendan Fleming and Dawson Cornwell in December 2013, no application of any kind had been made on behalf of either the mother or the Italian authorities, whether to the Court of Protection, the Chelmsford County Court or the Family Division, nor had any application been made to the Court of Appeal. In particular, it is to be noted, neither the mother, nor for that matter the father, had made any application in accordance with section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of an adoption order.

 

To be fair to them, getting public funding for a leave to oppose adoption application isn’t easy (though I have seen determined solicitors get it on a much less contentious case than this one, and of course if one is deeply committed to the cause there is always pro bono option – for example, the mother in the Re B-S case didn’t have legal aid and her lawyers did the work for free)

The Judge sets out quite a lot of the email and correspondence between the Local Authority and the mother about this hearing and the chance to express her views

 

  • The email notifying the mother of the hearing was sent to her on 7 March 2014. A follow up email was sent on 12 March 2014. The mother responded by email later the same day:

 

 

“Dear Lynne thank you for your email I don’t have an advocate and unfortunately I will not able to attend Court, I received all the paperwork that you mailed to the adresse. Thank you very much”

Essex County Council replied by email on 13 March 2014:

“Many thanks Allesandra.

Would you wish to express your view via an email which we can present to the Court on your behalf?

Lynne”

There was no response, so Essex County Council emailed again on 27 March 2014:

“Alessandra – I just wish to remind you that the hearing in respect of [P] will be on Tuesday 1st April.

I know that you are unable to attend the hearing, but as previously stated, if there is anything that you wish the Court to know about your views on the proposed adoption then please email me by Monday 3 p.m. so I can ensure your views are available to the Court.””

The final email from the mother arrived on 28 March 2014:

“Dear Lynne

I wish for my daughter the best. Me personally I am trying to forget this bad experience I had in England. I love my daughter with all my heart and I pray to see her one day again.”

 

With that in mind, it is not a surprise that the President went on to make the adoption order, as there was no challenge to it. Obviously this is a sad case, as all adoptions are. Perhaps the mother had given up hope, perhaps she thought that she would have no chance of success, perhaps she just wasn’t in a place where a fight was something she could manage. I feel for her. Less for some of the journalists who high-jacked her tragedy to make cheap and inaccurate points.

I suspect that this judgment won’t get the publicity that the shrill allegations got back in December.