Family Forum / Parenting / Adoption / May 2008

http://business.timesonline.co.uk/tol/business/law/reports/article4023183.ece

From The Times
May 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.