|Judgments - In Re G (A Minor)continued|
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There are a number of points to be noted about section 20. First, it is discretionary. The court is not bound to revoke a freeing order just because (as in the present case) the conditions required for the making of the original freeing order no longer obtain. In particular, in deciding whether or not to revoke the freeing order, the court is entitled and bound to have regard to the need to safeguard and promote the welfare of the child: section 6 of the Act of 1976 and section 20(4). Second, the effect of revocation is to vest sole parental responsibility in the parent who wishes to resume parental responsibility: section 20(3). Third, the care order in force before the freeing order was made (and extinguished by the freeing order) is not automatically revived: section 20(3A). In consequence, the effect of a revocation order (if made) will be that the full and unfettered parental responsibility will vest in the parent whether or not he or she is a suitable person to have such sole responsibility. If she is not a suitable person, it cannot be for the welfare of the child to make an order vesting sole responsibility in her.
These were the factors which led the Court of Appeal to the conclusion that there was a lacuna in the Act of 1976 in dealing with a child, subject to a freeing order, who subsequently becomes unlikely to become adopted but whose parent cannot properly be permitted to resume sole and unfettered responsibility. The Court of Appeal, although initially attracted to the proposal that the position could be covered by a care order under the Act of 1989, felt bound to reject that course because it "runs counter to the express purpose of the section". They held that "the philosophy behind section 20 remains a rejection of public law intervention and the intention to return the child to the control of the parent."
I am unable to agree with this conclusion. Before considering the construction of section 20 itself, I must emphasise the background against which it falls to be construed. Apart from proceedings under the Adoption Act, the parent of a child enjoys parental responsibility of some kind, even in cases where there is intervention under the Act of 1989. Moreover, as a "parent" within the meaning of the Act of 1989, he or she has certain statutory rights whether or not there is a care order in force: (a) the local authority is required to ascertain the wishes and feelings of the parent in relation to decisions affecting the child (the Act of 1989, section 22(4)); (b) in conducting any review of the child the parents' views have to be sought and the parents have to be given the result of the review (the Act of 1989, section 26(2) and Review of Children's Cases Regulations, 1991, paragraph 7); (c) the parent has to be notified of any placement (Placement of Children with Parents, etc., Regulations, 1991, paragraph 8); (d) the parent has the right to use the representation and complaints procedures established by the Representations Procedure (Children) Regulations, 1991. By dispensing with the agreement of the parent and making a freeing order under section 18 all the ordinary rights of a parent and these statutory rights of a parent are extinguished and remain extinguished so long as the freeing order remains in force. It is true that, as to the statutory rights under the Act of 1989 the former parent may be consulted by the local authority as being, for example, a person "whose wishes and feelings the authority consider to be relevant": see the Act of 1989, section 22(4)(d). But this discretionary right of the local authority to deal with the former parent is no substitute for the absolute statutory rights she previously enjoyed. The extinguishment of all parental rights, parental responsibility and the statutory rights under the Act of 1989 is a draconian step. It is a necessary corollary to enable an adoption to take place. But if the proposed adoption giving rise to the freeing order fails to materialise and there is no other proposed adoption pending, it is hard to accept that Parliament can have intended that the parent should continue to be deprived of all these rights leaving the child in an indefinite adoptive limbo.
Moreover, the inability to revoke the freeing order when the circumstances have changed, may give rise to an injustice to the parent and possible harm to the interests of the child. A decision whether or not to dispense with the agreement of a parent has to be taken on the basis of all the circumstances as they exist at the date of the application. Thereafter circumstances may change. For example, if there has been continuing contact between the parent and the child notwithstanding the freeing order, a bond may have developed between them. The situation may have developed in which some third party is prepared to provide satisfactory day-to-day care for the child whilst retaining beneficial contact between the child and the parent. If it is impossible, in cases where the parent cannot be trusted with full parental responsibility, to revoke the freeing order, then many years later notwithstanding such change of circumstances an adoption could take place without the consent of the parent, reliance being placed on the existing freeing order. But in the changed circumstances, it may not be in any way unreasonable for the parent at that later date to withhold his agreement to the adoption. In my judgment this would run counter to the whole structure of the Adoption Act which shows that parental agreement is only to be dispensed with, whether on the making of an adoption order or on the making of a freeing order, in the light of the reasonableness of the parent's conduct as at that date. Sections 18 and 19 indicate that a freeing order is to be made only where an adoption is likely to take place within 12 months or shortly thereafter. For these reasons, it would to my mind be very strange if, a freeing order having been correctly made to facilitate a pending adoption, it was incapable of being revoked when adoption ceases to be an immediate prospect save in cases where the parent whose rights have been dispensed with under the freeing order is capable of looking after the child and having unfettered control.
Does section 20 of the Act of 1976 require that conclusion? It certainly does not do so expressly. The requirement in section 20(1) that the parent can apply for revocation "on the ground that [the former parent] wishes to resume parental responsibility" does not postulate that the former parent must wish for sole and unfettered parental responsibility. Parental responsibility can be shared. Where a care order has been made under the Act of 1989 that parental responsibility is fettered, but even so the former parent may still wish to resume parental responsibility, shared or fettered though it may be.
The point which seems to have weighed with the Court of Appeal is that, if the Act of 1976 is looked at in isolation, revocation of a freeing order can only operate so as to vest sole and unfettered parental responsibility in the former parent: revocation vests parental responsibility in the parent, extinguishes the parental responsibility vested by the freeing order in the local authority and does not revive the care order which was in force before the freeing order was made: section 20, subsections (3)(b), (3)(a) and (3A)(i). But the Act of 1976 does not exist in isolation. It is a code regulating adoption which takes effect in the context of the wider legislation regulating children, viz., formerly the Children Act 1975 and now the Act of 1989. Section 20 of the Act of 1976, in regulating adoption, provides for the undoing of the steps which have been taken towards the pending adoption which has subsequently failed to materialise. It restores the status quo ante, save that the care order in force at the date of the freeing order is not revived. The failure to revive the care order is explicable since, in the changed circumstances giving rise to the revocation of the freeing order, it may well not be right for the child to revert automatically to the care of the local authority: the parent obtaining the revocation order may be fully competent to have sole parental responsibility. The fact that the pre-existing care order does not automatically revive does not, as the Court of Appeal thought, indicate that "the philosophy behind section 20 remains a rejection of public law intervention". The Act of 1976 does not purport to limit in any way the powers under the Act of 1989. If, as a result or as a condition of revocation, it is appropriate that the powers under the Act of 1989 should be exercised there is nothing in the Act of 1976 to exclude them. In my judgment there is no lacuna in the Act of 1976: it operates alongside and as part of the general legislation regulating powers over children. I can see no reason why the provisions of the Act of 1976 have to be read as a self-sufficient code for all purposes: the powers conferred in relation to adoption by the Act of 1976 can, if necessary, be used in conjunction with and supplemented by the powers of the Act of 1989.
In my judgment, therefore, the position is as follows. Where a freeing order has been made under section 18 of the Act of 1976 but at the end of one year thereafter it is clear that no adoption is likely to take place within a short period, the freeing order may be revoked so as to restore the parent to his or her normal rights and to ensure that the child does not remain in an adoption limbo. Even if the former parent is not, at the date of revocation, fit to have sole and unfettered responsibility, the court has jurisdiction to make the order provided that the welfare of the child can be protected whether by making the revocation of the freeing order conditional upon such consequential orders as are appropriate under the Act of 1989 or under its inherent jurisdiction or in some other way.
That being so, the question is whether such jurisdiction can be exercised in the present case, bearing in mind the welfare of M. As I have said, the mother is prepared to consent to a care order. The local authority (which has been to great lengths to help M) is prepared to make the necessary application under section 31 of the Act of 1989. I would expect in a case in which the court indicates that the revocation order would be appropriate local authorities will be prepared to make such application for a care order. If such care order is made, there is no justification for keeping the freeing order in force at a time when no adoption may ever take place and at best adoption is only a long term hope or plan. In my judgment the freeing order should be revoked and the adoptive limbo terminated since M's welfare will be fully protected by the care order. It is plain that the Court of Appeal, if it had thought itself free to do so, would have made such an order.
For these reasons, I would allow the appeal and order the revocation of the freeing order made by Judge Willcock Q.C. on 11 November 1993, such revocation to take effect only upon the making of a care order relating to M under section 31 of the Act of 1989. There will be no order as to costs.
LORD LLOYD OF BERWICK
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Browne-Wilkinson. For the reasons he gives, and with which I agree, I too would make an order in the terms proposed by him.
LORD NICHOLLS OF BIRKENHEAD
I have had the advantage of reading in draft the speech of my noble and learned friend Lord Browne-Wilkinson. For the reasons he gives, and with which I agree, I too would make an order in the terms proposed by him.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Browne-Wilkinson. For the reasons he gives I would make the same order as he proposes.
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Browne-Wilkinson. For the reasons he gives I would also make the same order as he proposes.
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