Judgments - Down Lisburn Health and Social Services Trust and another (AP) (Respondents) v. H (AP) and another (AP) (Appellants) (Northern Ireland)

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    19.  He went on to conclude that both parents were withholding their consent unreasonably. He rejected an argument that a reasonable parent in this case would be justified in withholding consent until they could be assured that any prospective adoptive parents would agree to post adoption contact. He was (para 21(x)):

    "satisfied that the need for adoption for this child is so pressing that whilst it would be preferable that some limited measure of post adoption contact should be established if possible nonetheless adoption must proceed even if this cannot be achieved. Otherwise both parents could operate a veto on adoption by behaving so badly that no one would agree to post adoption contact."

Having reached the conclusion that parental consent could be dispensed with on the ground that it was unreasonably withheld, he added this comment (para 23):

    "Whilst it is inappropriate for me to look at the question of contact post adoption until this child comes before the court for adoption, I feel it is appropriate that I should say that I accept entirely the view expressed by Professor Triseliotis that it is important that if at all possible this child should have the benefit of continued contact with both parents at the frequency suggested by Professor Triseliotis. . . . If these birth parents can accept the new position and help this child to settle down without undermining the placement, I believe this can be of great assistance to this child now and in the future. . . . I also sincerely hope that the prospective adoptive parents when they are chosen will be carefully counselled as to the views of Professor Triseliotis concerning the benefits of post adoption contact but obviously if after all reasonable efforts have been made by the Trust for a period of six months or so, and no such couple can be found, then I am of the opinion that the benefits of adoption will outweigh the benefits of post adoption contact."

    Accordingly he freed the child for adoption. He made no provision for the contact which was to take place between the freeing order and the determination of any adoption application which might eventually be made.

    20.  On 22 November 2005, the Court of Appeal dismissed the parents' appeal. They disagreed with the judge on some factual issues, but the majority nevertheless agreed that the parents' consent could be dispensed with. Sheil LJ dissented. It was on the evidence a finely balanced judgment whether Nina should be freed for adoption even if prospective adopters had not been found who would allow contact with her parents. He also took a less pessimistic view of the risk of the mother relapsing into alcohol abuse. It could not be said that the parents were withholding their consent unreasonably.

    21.  The parents petitioned this House. By this time prospective adopters had been found who were willing in principle to allow contact between Nina and her parents. Leave to appeal was granted on the understanding that the placement could proceed before the determination of the appeal. Nina was placed with the prospective adopters on 12 April 2006.

    The legislation

    22.  Article 18(1) of the Adoption (Northern Ireland) Order 1987 is in apparently mandatory terms:

    "Where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in article 16(2) the court shall make an order declaring the child free for adoption."

    23.  Article 16(2) lists six grounds for dispensing with parental agreement, but much the most commonly employed is that in article 16(2)(b), that the parent 'is withholding his agreement unreasonably'. This is because, since the landmark decision of this House in In re W (An Infant) [1971] AC 682, it does not require any blameworthy conduct on the part of the parent. It merely asks whether the parent's objection is one which a hypothetical reasonable parent, placed in the position in which she finds herself, could have, bearing in mind that a reasonable parent considers her own feelings but also places great weight on what will be best for her child. I do not understand that Steyn and Hoffmann LJJ (as they then were), in their elegant exegesis of the underlying rationale for this provision, in In re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260, were intending to change the law as previously laid down by this House in In re W (An Infant) [1971] AC 682 and In re D (An Infant) (Adoption: Parent's Consent) [1977] AC 602. Provided that the parent's decision is within the band of decisions which a reasonable parent might make at the time and in all the circumstances of the case, it is not for the court to substitute its own view.

    24.  Article 18(2) provides two additional criteria:

    "No application shall be made under paragraph (1) unless -

    (a)  the child is in the care of the adoption agency; and

    (b)  the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption."

    The effect of a freeing order is to remove all parental responsibility from the parents, leaving the child in a state of legal limbo, with no individual having parental responsibility for her. It is clearly wrong to sever a child's links with her birth family unless a replacement family has already been identified or it is clear that one will in fact be found for her. Article 18(2) contemplates, even expects, that prospective adopters will have been found, the match approved and the placement made, before the freeing order is made. It certainly gives the lie to any suggestion that the search should not even begin until after the inconvenience of the parents' objections has been cleared away.

    25.  The effect of the order is drastic for the child, but it is even more drastic for the parents. They no longer qualify as parents for the purpose of taking part in future proceedings about the child. Their consent having been dispensed with, they have no right to be told about, let alone to participate in, any eventual adoption application. They can only apply for contact with the leave of the court. Furthermore, a freeing order can only be revoked, on the application of a former parent, if more than 12 months after the freeing order, the child has not been adopted or is not currently placed for adoption (article 20(1)). The court has no power to revoke the order of its own motion, or even on the application of the adoption agency, should it later turn out that adoption will not be in the best interests of the child, for example because the child needs contact with the birth family and no prospective adopters can be found who will tolerate this.

    26.  However, the stark terms of article 18 have to be read subject to the general duty of courts and adoption agencies in article 9:

    "In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall -

    (a)  have regard to all the circumstances, full consideration being given to -

    (i)  the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and

    (ii)  the need to safeguard and promote the welfare of the child throughout his childhood; and

    (iii)  the importance of providing the child with a stable and harmonious home; and

    (b)  so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."

    Although this article emphasises the question in relation to the eventual adoption of the child, it clearly requires the court to regard the welfare of the child as the most important consideration when deciding whether or not to free a child for adoption. Even if an eventual adoption will be in the best interests of the child, the welfare of the child might indicate that it would not be right to make an order freeing her for adoption.

    The issue of principle

    27.  The answer to the issue as posed in paragraph 9 earlier is obvious: yes, of course, the court has to take into account the child's need for contact with the birth parents in deciding whether adoption is in the best interests of the child. These days, as already indicated, adoption can take many different forms. In many cases, particularly those where the child has a significant history, it is not enough for the court to decide in a vacuum whether 'adoption' is in the best interests of the child. It must decide what sort of adoption will best serve her interests. If the court takes the view that some form of open adoption will be best, then it will have to take that into account in deciding whether it will accord with its most important consideration, the welfare of the child, to make an order freeing the child for adoption before there is any evidence available of the efforts made to secure the right sort of adoptive placement and to prepare both families for it. The court may, of course, take the view that the need to free the child for adoption is so pressing that this should be done even if it is not yet known whether an open adoption will be possible. But the need to free the child for adoption is different from the need for the child to be adopted. It may be premature to free a child for adoption even though it would not be premature to make an adoption order.

    28.  The court also has to take into account the child's need for contact with the birth family in deciding whether the parents are unreasonably withholding their agreement to adoption. The question is not whether the parents will in the future be unreasonable in withholding their agreement to adoption. The question is whether, in the light of the evidence available to them at the hearing, they are at present unreasonable in withholding their agreement to adoption. The matter must be judged on the basis of the evidence available to them then. They cannot at that stage know what the judge's findings will be. They cannot know how strong will be the judge's endorsement of any particular view expressed by the professionals or experts.

    Its application in this case

    29.  In this case, a large part of the parents' objections were directed against adoption in principle. The mother had remained abstinent since 2003, the underlying personality disorder which had led to her drinking problems had been identified and could now be addressed in therapy, and there had been no domestic violence over the same period. The parents were still together and committed to their child. The judge rejected these objections on the basis that the risk of history repeating itself was overwhelming. Although the Court of Appeal was not quite so pessimistic, it reached the same conclusion as he did on this aspect of the parents' objections. This is not a matter for us.

    30.  But the parents raised a discrete objection based upon the uncertainties surrounding their future contact with the child. The judge rejected this because he took the view that the parents could frustrate an adoption by behaving so badly that no-one would agree to post adoption contact. As was pointed out in the Court of Appeal, however, the evidence was very clear that contact would only be in the best interests of the child if the parents behaved well and did not use it to undermine the placement. This would be true both of contact between freeing and adoption and after an adoption. Contact which is not in the best interests of the child can readily be stopped. It is, moreover, important to recall that despite their adamant objections to the Trust's plans, the parents had not sought to use their contact to undermine their daughter's current placement. Nor, despite the view which he had formed of the desirability of post adoption contact, did the judge consider whether the court could, at that stage, promote this, for example by preserving the parents' position after a freeing order. In my view, therefore, the judge placed emphasis upon an irrelevant consideration and did not consider a relevant factor, when reaching his conclusion that the parents were unreasonable in withholding their consent while the contact position was so unclear. This enables us to look again at his decision.

    31.  The question is whether, by the end of the hearing but before the judge had delivered judgment, a reasonable parent could have maintained his or her objection to adoption on the basis that steps had not yet been taken to find prospective adopters who might agree to post adoption contact. These parents had heard the evidence of Professor Triseliotis. He was very clear that post adoption contact would be in Nina's best interests. He thought that the parents' capacity to support such contact in a way which would promote rather than undermine the placement should be judged once the placement proceeded rather than in advance. Although in the end he was prepared to support adoption even if prospective adopters who could accept contact could not be found, he wanted the court to be assured that all the right steps had been taken to find them. He was somewhat sceptical because of the Trust's lack of experience in this area, open adoption still being much less common in Northern Ireland than it has become in Britain. The parents had also heard the evidence of Mrs McComish for the Trust and of the guardian ad litem. Both had moved towards accepting that post adoption contact might be best, but remained very sceptical of the parents' ability to support it, in the light of past suspicions and hostilities. Their conversion was by no means enthusiastic and had come very late in the day.

    32.  In my view, any reasonable parent would be entitled to place great weight upon the views of Professor Triseliotis. He is an acknowledged expert in this field, thoroughly familiar with the up to date research literature, but also experienced in making assessments in individual cases. He had seen Nina with her parents, whereas the social workers making the decisions about contact had not. They had simply relied upon reports by supervisors which Professor Triseliotis had thought superficial. A reasonable parent would be entitled to say, let us wait and see what efforts are made to find the right sort of placement for our child before we give our consent.

    The European Convention on Human Rights

    33.  There is no doubt that Nina and her parents had established a family life together. That family life continued even after they were separated. Article 8 of the Convention guarantees all of them the right to respect for their family life. A public authority must not interfere with that right unless three conditions are fulfilled: first that it is in accordance with the law; second that it is for a legitimate aim, in this case safeguarding the best interests of the child; and finally, that it is 'necessary in a democratic society' - that is, that the interference is for relevant and sufficient reasons and proportionate to the legitimate aim pursued. The European Court of Human Rights has only rarely held that the initial taking of a child into care violates article 8, although it has done so in the case of new born babies: see K and T v Finland [2001] 2 FLR 707 and P, C and S v United Kingdom [2002] 2 FLR 631. But it has consistently held that the object of the authorities must be to seek to restore the child to her family as soon as practicable; measures which will hinder this, such as prohibiting contact or placing the child a long way away, may well violate article 8: see, for example KA v Finland [2003] 1 FLR 696. It was in that context that both the Children Act 1989 and the Children (Northern Ireland) Order 1995 gave the court wide powers to control contact between children in care and their families despite the fact that the local authority or Trust had parental responsibility for their upbringing and care: hence the observations of Simon Brown LJ, as he then was, in In re E (A Minor) (Care Order: Contract) [1994] 1 FLR 146, 154-155, on the benefits of contact between children in care and their families. These are not in doubt. Contact once a child becomes a member of a new family, while it may still be very desirable, is a more complex issue because of the need to respect the privacy and autonomy of the new family.

    34.  There is, so far as the parties to this case are aware, no European jurisprudence questioning the principle of freeing for adoption, or indeed compulsory adoption generally. The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.) It is, of course, the most draconian interference with family life possible. That is not to say that it can never be justified in the interests of the child. The European Court has said that where the interests of the child and the interests of the adults conflict, the interests of the child must prevail: eg Yousef v The Netherlands [2003] 1 FLR 210, para 73. But it can be expected that the European Court would scrutinise the relevance and sufficiency of the reasons given for such a drastic interference with the same intensity with which it has scrutinised severance decisions in other care cases: see, in particular, P, C and S v United Kingdom [2002] 2 FLR 631, para. 118. The margin of appreciation accorded to the national authorities is correspondingly reduced. In a freeing application, the question must be whether it is necessary and proportionate to sever the links with the family of birth if a new family has not yet been identified.

    The Implications for Freeing for Adoption

    35.  We understand that a review of adoption law in Northern Ireland is currently under way and that a consultation paper is expected shortly. It is not for us to make recommendations to that review. What is appropriate for the larger and more diverse area and population of England and Wales may not be so appropriate for a small society like Northern Ireland. Freeing for adoption has the great benefit that the burden of the proceedings is carried by the adoption agency and not by the prospective adopters. If it is difficult to find prospective adopters for a particular child, because of the parents' attitudes and behaviour, freeing the child for adoption may aid the search. Nevertheless, it does have serious disadvantages, in delay, in disabling the court from addressing the real issues and in placing the child in legal limbo: see Review of Adoption Law, Report to Ministers of an Interdepartmental Working Group, Department of Health and Welsh Office, October 1992, para. 14.4. These were the considerations leading to its abolition in England and Wales. Even before then, some local authorities in England and Wales never used the freeing procedure and others used it only sparingly.

    36.  It does appear from this case that adoption practice in Northern Ireland may labour under certain misconceptions. The first and most important is that the search for prospective adopters, still less the actual placement of the child, should not begin until the child has been freed. Yet it is clear from the terms of article 18(2) itself that there is no objection in principle to this. It may be argued that this is to present the parents with a fait accompli which they will find hard to resist. But the reality is that it can be even harder for them to resist the hypothetical ideal prospective adopters who are imagined when a freeing application is heard.

    37.  A second misconception is that it is not possible to run proceedings, whether for adoption or for freeing, in such a way that the parents and prospective adopters are able to hear and to challenge one another's evidence. There are many different ways of conducting contested adoption proceedings and the procedures can be adapted to the particular needs of each case. But it is common practice in the Family Division of the High Court in England and Wales for the prospective adopters to listen to the proceedings in another room while the parents give evidence and for the positions to be reversed when or if the prospective adopters give their evidence. This enables issues such as contact to be properly explored between the very people who will have to make it work if it is to happen at all. It also enables each to understand the other's point of view much more clearly than they can from the papers. Each becomes a person rather than the ogre or the threat they may previously have been.

    38.  A third misconception is that it is not possible to consider the issue of post adoption contact until the adoption application itself (the source of this appears to be some observations of Ward LJ in In re G [2002] EWCA Civ 761. But this was a case where freeing had been refused and the question was whether contact with the child should have been ended before the adoption hearing.) Of course, it is not possible for the judge hearing a freeing application to make an order about contact after the adoption. He can only make orders, if at all, about contact between the freeing and the adoption order. But that does not mean that the issue of post adoption contact is not relevant to whether or not the child should now be freed for adoption. For all the reasons given earlier, in some cases, it may be highly relevant.

    Conclusion

    39.  I recognise, of course, that just as there is a band of reasonable parental decisions each of which may be reasonable in any given case, there is a band of reasonable judicial decisions, each of which may be reasonable in any given case. Just as a judge should be careful not to substitute his own view for another view which a reasonable parent could take, an appellate judge must be careful not to substitute her own view for one which a reasonable judge could take. I pay tribute to the care with which the judge approached his anxious and difficult task and to the very important shift in attitudes which his interventions produced. But in my view he placed considerable weight upon an irrelevant consideration when deciding that the parents were unreasonably withholding their agreement at that stage. Perhaps because of the beneficial movement he had secured, he did not take into account the other legal options available in seeking to achieve the best possible outcome for this little girl. I do not, of course, suggest that post-freeing and post-adoption contact are appropriate in every case or that uncertainty about whether contact will be possible is always a good reason for withholding consent. But they are often important factors both for the parents and for the judge to consider.

    40.  I myself would allow the appeal and set aside the freeing order. As Nina has now been placed, the issue of post adoption contact would be better explored on a substantive adoption application. The Trust will, of course, make the running on behalf of the prospective adopters. The prospective adopters are aware of these proceedings and can be supported both financially and emotionally through the process. The parents too should try to put aside their own feelings in the interests of all the children. They should be offered no encouragement at all to maintain their objections to adoption in principle. Two trial judges and two appellate judges have now reached the view that the risks of history repeating itself are too great. The parents have enough on their plates in maintaining a stable home for the older children who need them so much. If they can come to terms with this, they and the older children could play an important part in helping Nina to establish herself securely in her new family.

LORD CARSWELL

My Lords,

    41.  The subject of this appeal, N, was born on 19 April 2002 and is now four years of age. Her young life has been far from settled and in order to provide her with a favourable permanent environment the respondent, the Down Lisburn Health & Social Services Trust ("the Trust"), proposes to make arrangements for her adoption by a suitable family. Her parents H and R have not given their agreement to adoption and the Trust accordingly brought the present application under article 18 of the Adoption (Northern Ireland) Order 1987 (SI 1987/2203) (NI 22) ("the 1987 Order"), seeking an order from the court declaring the child free for adoption. The Family Judge, Gillen J, made a freeing order, being satisfied that the agreement of the parents should be dispensed with on the ground that they were withholding their agreement unreasonably. The Court of Appeal (Nicholson, Campbell and Sheil LJJ) by a majority dismissed the parents' appeal. At the time when the judge made his order prospective adopters had not been identified and the question whether and to what extent post-adoption contact between the child and her parents could be arranged was unresolved. The issue in the appeal before the House is whether the judge could properly make a freeing order on the basis that the parents' agreement was unreasonably being withheld, when they did not yet know if post-adoption contact would be available.

    42.  Adoption in the United Kingdom has undergone a considerable change since the early 1970s. The number of children adopted has suffered a sharp decline and the proportion of older children, as distinct from infants, adopted has increased markedly. In many cases adopted children now have an attachment to their birth parents and it is generally recognised that there is a much stronger case for post-adoption contact than was thought when the permanency theory held sway. When the 1987 Order and its English analogue the Adoption Act 1976 were passed it was generally thought desirable that adoption should be a clean break and that there should be no contact between adopted children and their natural parents, which was reckoned to be potentially disruptive of the settled state of the children and their new families. Judicial acceptance of this view may be seen in the speech of Lord Ackner in In re C (A Minor) (Adoption Order: Conditions) [1989] AC 1, 17-18:

    "The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation."

 
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