House of Lords
Session 1996-97
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Judgments - In Re G (A Minor)


  Lord Browne-Wilkinson   Lord Lloyd of Berwick   Lord Nicholls of Birkenhead
  Lord Steyn   Lord Hoffmann



ON 1ST MAY 1997


My Lords,

          This appeal relates to the power of the court, under section 20 of the Adoption Act 1976 ("the Act of 1976"), to revoke an order made under section 18 of that Act freeing a child for adoption. It is a precondition to the making of an adoption order that the parent has either agreed to the adoption or the court had dispensed with such agreement on one of the statutory grounds mentioned in section 16(2) of the Act of 1976. One of those grounds is that the parent is unreasonably withholding his or her agreement to the adoption. This requirement of agreement or dispensing with such agreement can be dealt with by applying, in advance of the adoption hearing itself, for a freeing order. A freeing order can only be made if the child has been placed with prospective adopters or adoption is likely. If, within a year after the freeing order is made, an adoption has neither taken place nor is pending, the parent can apply under section 20 of the Act of 1976 to revoke the freeing order on the ground that he or she "wishes to resume parental responsibility".

          The specific question raised in this appeal is whether, under section 20 of the Act of 1976, the court can revoke the freeing order in circumstances where the parent applying for revocation cannot properly be allowed to have the actual care of the child but accepts that, upon revocation of the freeing order, a care order should be made in favour of the local authority under the Children Act 1989 ("the Act of 1989").

          The child in question, M, is now seven years old. His mother was 15 when he was born and was too young and immature properly to care for M. M failed to thrive. He was placed by the local authority on the "at risk register" and was admitted to hospital in November 1991. The local authority having been granted an interim care order under the Act of 1989, in December 1991 M went to his first placement with foster parents. He was returned in August 1992 to his mother's care but, after numerous changes of care arrangements, the local authority obtained an emergency protection order on 30 October 1992 and a full care order was made under section 31 of the Act of 1989 on 19 January 1993.

          After the failure to rehabilitate M with his mother the local authority applied for an order under section 18 of the Act of 1976 freeing him for adoption. M was placed with prospective adopters. The application came before His Honour Judge Willcock Q.C. on 11 November 1993. At that time it was confidently expected that the adoption application would be made almost immediately by the adopters with whom M had been placed. In the light of the then known circumstances, the judge held that the mother's agreement to such adoption was being unreasonably withheld and made a freeing order under section 18. Contact between M and the mother continued until ended by the judge in August 1994.

          In the event, the prospective adopters decided not to proceed with the adoption. M was moved again to an experienced foster mother but she was unable to manage him as was his school. Since August 1995 M has attended a special school experienced in dealing with severely emotionally disturbed children. He is now a boarder there and, although there is now some discussion as to whether he should live there throughout the year or split his time between the school and another residential establishment, he will be in one or other place throughout the year.

          In December 1994 the mother was notified in accordance with the requirements of section 19(2) of the Act of 1976 that no adoption order had been made although 12 months had elapsed since the making of the freeing order. The mother then applied under section 20 of the Act of 1976 to revoke the freeing order and for contact with M. During 1995 the mother resumed contact with M by order of Judge Willcock. The mother has now a stable relationship and has two other sons.

          The mother's application to revoke the freeing order came before Judge Willcock in October 1995. The evidence then before the judge demonstrated that M had been severely damaged in the course of his short life. The report of a clinical psychologist (obtained after the hearing before the judge but confirming the evidence which was before him) states that M was a child who:

    "presents with a complex constellation of difficulties . . . [he] displays many of the psychological stigmata of significant harm to his social, emotional and behaviour development . . . [he] is a boy with very special educational needs which are likely to endure and call for structured and reliable input integrated across both the domestic and more directly educational aspects of his day".

The psychologist considered that the rehabilitation of M with his mother was not advisable since the risk of breakdown would be unacceptably high, having possible adverse consequences for the two younger children of the mother. He was also of the view that the effect of such breakdown on M would be psychologically destructive and felt that permanency through adoption ought to be the long term plan. However, in the psychologist's view it was clear that M could not psychologically afford another permanency breakdown: "his needs are too numerous and diverse and ingrained to move to a family soon though this should be the long term aim." It is accepted by the local authority that there is no immediate prospect of placing M with prospective adopters and indeed that adoption may never, in fact, take place.

          At the hearing before the judge, the mother, whilst accepting that M should stay at the special school, did not suggest that M should be subject to a care order under the Act of 1989. In these circumstances, the judge refused to revoke the freeing order. He held that M could not safely return to the care of the mother. Since the effect of revocation of the freeing order would be to vest the sole parental responsibility for M in the mother, revocation would only lead to the local authority having to bring fresh care proceedings under the Act of 1989. Such proceedings would be detrimental to M and could only result in a further care order being made. Whilst refusing to revoke the freeing order, the judge made an order providing for the mother to have limited access to M.

          The mother appealed to the Court of Appeal (Butler-Sloss and Saville L.JJ. and Douglas Brown J.) whose decision is reported at [1996] 2 F.L.R. 398. At the time of the hearing in the Court of Appeal, M's circumstances had not changed materially. However, the submissions of the mother were different. She accepted that, if the freeing order were to be revoked, the local authority should apply for and obtain a care order the making of which she would not oppose. The position adopted by the local authority both in the Court of Appeal and before your Lordships was that they would prefer the freeing order to remain in force but, if the court thought it appropriate to revoke the freeing order, the local authority would apply for a care order as the mother proposed. In those circumstances, the reasons for the judge's decision no longer applied since the welfare of M could be protected by an uncontested care order. The judgment of the Court of Appeal shows that they were unhappy that an order freeing M for adoption should continue to remain in force at a time when there was no immediate prospect of his adoption and indeed in circumstances where he might never be adopted at all. However, the Court of Appeal felt bound to hold on the construction of section 20 of the Act of 1976 that on an application for revocation of a freeing order the court had only two choices, to revoke or not to revoke, and in the event of revocation the inevitable result would be that the mother assumed sole and unfettered parental responsibility for M. They therefore refused to make an order for revocation. The mother appeals to your Lordships' House.

          Before considering the statutory provisions directly in point, it is convenient to say a word about the concept of "parental responsibility" introduced by the Act of 1989. The concept has the same meaning both in the Act of 1976 and the Act of 1989: see the Act of 1976 section 72(1). Section 3(1) of the Act of 1989 defines parental responsibility as meaning:

     "All the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property."

Under section 2(2), where (as in the present case) the child's parents were not married at the time of the child's birth, the mother has parental responsibility. Under section 2(5) more than one person can have parental responsibility for the same child at the same time. In particular, on the making of a care order under section 31 of the Act of 1989, the parent does not lose all parental responsibility but shares it with the local authority: see section 33(3). However, the parental responsibility of the parent is fettered since the local authority has power to determine the extent to which "a parent . . . may meet his parental responsibility": section 33(3)(b).

          I turn then to consider the Act of 1976 as amended by the Act of 1989. An adoption order cannot be made unless the child is free for adoption by virtue of an order made under section 18 or the parent unconditionally agrees to the making of an adoption order or his agreement is dispensed with on the grounds mentioned in section 16(2). Therefore if a freeing order under section 18 has been made the proposed adoption can proceed in the certainty that the necessary agreement of the parent has either been obtained or dispensed with: the rights of the parent have been considered and determined at the earlier stage when a freeing order was considered. The provisions as to a freeing order are contained in section 18. Unless the parent agrees to the application, only a local authority, acting as an adoption agency, can make the application for a freeing order and the child must be in its care: section 18(1) and (2A). Under section 18, the court is bound to make a freeing order if the parent agrees to the making of the adoption order or the court is satisfied that the parent's agreement should be dispensed with on one of the grounds specified in section 16(2). The grounds for dispensing with the agreement of the parent include the parent "withholding his agreement unreasonably": section 16(2)(b). But it is to be particularly noted that the courts cannot dispense with the agreement of the parent under section 18 "unless the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption": section 18(3).

          Applying those provisions to the present case, there is no doubt that the requirements of section 18 were satisfied on 11 November 1993 when the freeing order was made. M was in the care of the local authority which made the application. He had been placed for adoption with the then proposed adopters. The judge held that, in the light of the then circumstances, the mother's agreement was being unreasonably withheld. The effect of the freeing order was as follows. Under section 18(5) parental responsibility was given to the local authority as the adoption agency and subsections (2) to (4) of section 12 were made applicable as though the freeing order was an adoption order and the local authority were the adopters. Under section 12(3)(a) the parental responsibility which the mother enjoyed immediately before the freeing order was extinguished. In consequence, sole parental responsibility was vested in the local authority as adoption agency. Moreover, as a result of the extinguishment of the parental responsibility of the mother, she ceased to be a "parent" within the meaning of that word in the Act of 1989: she became a "former parent": see the Act of 1976, sections 19-20; M v. C and Calderdale Metropolitan Borough Council [1993] 1 F.L.R. 505. Pending the making of an adoption order, M had and has no human being as a parent: the mother is not a parent and there is no adoptive parent. M is in what the Court of Appeal described as an "adoption limbo": a statutory orphan. It should also be noted that the freeing order discharged the existing care order: section 12(3)(aa).

          After the expiry of one year from the date of the freeing order, the local authority is bound to inform the "former parent" whether an adoption order has been made and (if not) whether the child is currently placed for adoption: section 19. The right of the "former parent" to apply for a revocation order under section 20 is linked to the same factors. So far as relevant, section 20 provides as follows:

    "20(1) The former parent, at any time more than 12 months after the making of the order under section 18 when -
      (a) no adoption order has been made in respect of the child, and

      (b) the child does not have his home with a person with whom he has been placed for adoption,

    may apply to the court which made the order for a further order revoking it on the ground that he wishes to resume parental responsibility.

    "(2)  While the application is pending the adoption agency having parental responsibility shall not place the child for adoption without the leave of the court.

    "(3)  The revocation of an order under section 18 ('a section 18 order') operates -
      (a) to extinguish the parental responsibility given to the adoption agency under the section 18 order;

      (b) to give parental responsibility for the child to--

        (i) the child's mother; and

        (ii) where the child's father and mother were married to each other at the time of his birth, the father; and