B (a Child) v RP & Ors [2000] EWCA Civ 341 (20 December 2000)

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5. Amy was placed with her father on 19 December 1998 and has lived with him ever since. He gave up paid employment to look after her. At first they lived with his parents, then in shared rented accommodation with a friend, and have since moved into their own home. Amy is thriving in her father's care. No-one suggests that she should be removed from him, or that he should be regarded any differently from any other single parent bringing up his or her own child on their own. The law recognises that fathers may be just as caring and competent primary carers for their children as are mothers, although it is rather less common for them to undertake this role.

6. The question in this case is not whether the father should continue to care for Amy as a single natural parent but whether he should become instead her sole adoptive parent.

7. The father made an adoption application to his local Family Proceedings Court on 26 April 1999. His understanding was that the mother was willing to agree. The local authority prepared a report under rule 22(2) and Schedule 2 to the Adoption Rules 1984, dated 30 June 1999. This supported the placement with the father and his application to adopt but urged that further attempts be made to establish the mother's wishes.

8. The court appointed Mrs McCarrick as reporting officer on 1 July 1999 and as guardian ad litem for Amy on 28 July 1999. The matter was transferred to the county court on 27 October 1999. It is from Mrs McCarrick's report of 19 January 2000 that we gain most insight into the mother's feelings because she interviewed the mother in some depth and with some sympathy and understanding for her position. The mother feels that she has no maternal instinct and has known for many years that she does not want children. That being so, she is ashamed of her pregnancies: 'once is forgivable - twice is incomprehensible.' She has always wanted the best for Amy. She was happy that things were working out well with the father. She did not want to interfere. She wanted him to feel secure. But now that she realised that there were other legal options she wondered whether adoption might be premature, before the father had found a permanent partner.

9. The matter was then transferred to the High Court and the Official Solicitor invited to act. At the date of his first report on 14 June 2000, his representative had not been able to see the mother. He was able to do so on 20 June 2000, when the mother signed the prescribed form of agreement to an adoption order. She still considered the application premature, but she could understand the father's reasons and was not going to stand in his way. She would never seek to interfere in their lives and was not seeking direct contact. If her position changed she would seek legal advice and not turn up on the father's doorstep. As with her older child, she did want to have an annual photograph and progress report through the local authority's post box system.

10. The Official Solicitor's view was that an adoption order would not promote the interests of the child throughout her childhood, as required by section 6 of the Adoption Act 1976. Security in her placement could be achieved by a package of orders under the Children Act. He regarded the mother's lack of interest in Amy as 'lamentable' and the absence of a mother figure in her life as a significant disadvantage. Hence it would not necessarily be to Amy's detriment if her mother at some time in the future were to display an interest in establishing a relationship with her. There was not, therefore, sufficient reason to justify excluding the natural mother.

11. Bracewell J granted the adoption order. There were two legal issues before her. First, under section 6 of the Adoption Act 1976,

"In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."

The judge rehearsed the arguments advanced on each side, in particular the argument advanced by Mr Hershman on behalf of the father, that the mother's continued status as a parent with parental responsibility for Amy would cause insecurity for the father and thus potentially affect the stability of the child. She did not, however, make an express finding to that effect, but 'concluded that the welfare of Amy demands that there should be an adoption order in order to promote her welfare throughout her childhood'.

'An adoption order shall not be made on the application of the mother or father of the child alone unless the court is satisfied that -

(b) there is some other reason justifying the exclusion of the other natural parent, and where such a order is made, the reason justifying the exclusion of the other natural parent shall be recorded by the court.'

'that the mother has rejected Amy from birth and has played no part in her care or upbringing; the mother has consented to the adoption, and the mother wishes to play no part in Amy's life in the future, other than to have indirect contact.'

13. Against that order, the Official Solicitor, as guardian ad litem for Amy, now appeals.

14. The argument for the child can be summed up in this way. An adoption order in a case like this is a loss to the child and not a gain. An adoption order has two main legal effects. First, it gives full parental responsibility to the adoptive parents and removes it from the natural parents. Second, it creates the legal relationship of parent and child, not only between the adopted child and the adoptive parents, but between the child and their whole family, while taking away that relationship from the parents and family of birth. The first of these effects lasts throughout childhood. The second lasts for ever. Adoption is irrevocable and cannot be replaced by another adoption order once the child has reached 18.

15. This child already has a loving home with a loving parent who enjoys the support of his own family and parents, her paternal grandparents. Her father already enjoys full parental responsibility for her, just like any other parent. Gone are the days when unmarried fathers were unable to enjoy a full legal relationship with their children: section 4 of the Children Act 1989, under which he has parental responsibility, repeats the provision first made in section 4 of the Family Law Reform Act 1987, enabling mother and father to share full parental status with one another. An unmarried father, unlike any other parent, can still have parental responsibility taken away from him under section 4(3), but only on the application of a person with parental responsibility or (with leave) the child. It is fanciful to suggest that this would ever be appropriate in this case but, if it were, the circumstances would be so extreme that it would be questionable indeed whether it was right to have deprived the child of the possibility that the other natural parent might step in, however late in the day, and meet her own responsibilities.

16. Father and child are already fully related to one another for virtually all legal purposes. That transition was also finally completed by the Family Law Reform Act 1987. Among other provisions, section 1(1) of that Act lays down the golden rule that in all future legislation and legal instruments, relationships are to be traced without regard to whether or not the parents of anyone concerned were married to one another. This means that Amy is a fully integrated member of her father's family, just as she is of her mother's. (The only important remaining exception is in the field of nationality and immigration, but as Amy already enjoys the same nationality and immigration status as her father, it is immaterial in this case.)

17. The 1987 Act also means that it is now the norm for all children to have two legal parents and two legal families. Even a father without parental responsibility has some responsibility for his child and the courts have shown themselves very ready to grant him full parental responsibility even if the mother will not agree. The child is in any event, and independently of parental responsibility, a full member of his family. Nearly 40% of children born in Great Britain are now born to unmarried parents. Most of these are registered by both parents and most of those parents are living at the same address. Sadly, many parents, whether married or unmarried, do separate (and recent research has found that this is more likely if they are unmarried) but although their children may (for a while) be living in a one parent household that does not mean that they only have one parent. They have two legal parents (and families) and they often have two parents in fact. It is generally regarded as very much in their best interests so to do.

18. Thus an adoption order in a case like this takes away one half of the child's legal family. The court has to ask, not only whether this will safeguard and promote her welfare throughout her childhood, but also whether there is some reason justifying the mother's exclusion.

19. The father wants the complete security which will come from the removal of the mother's parental responsibility. This is quite understandable. He is conscious that he only found out about his daughter by an extraordinary chance. The mother may have tried deliberately to prevent him finding out, although she denied this to Mrs McCarrick. She has certainly made up for it since, by placing no obstacles in his way and doing everything which she could to facilitate the placement with him, despite her own hopes that Amy would be placed with her half sister Charlotte. Amy came to him in the context of an expectation that she would be adopted. The father may also feel that fathers, and particularly unmarried fathers, are more at risk of interference and disruption than are single mothers, although I have tried to show that this is not so.

20. There is, in this particular case, little if any reason to believe that the mother will seek to interfere or disrupt their lives. Hard though it may be for many to understand, she has recognised that she is not the maternal type and does not want to have children. She made responsible arrangements for her first child and was planning to do the same for Amy. She wants the best for her, understands the father's position, and says that she will not interfere.

21. However, it is always possible that she will change her mind. As the Official Solicitor points out, it is not necessarily contrary to Amy's best interests that she should do so. Amy is in due course bound to ask questions about her mother, want to know more about her, and want to know why, so unusually these days, her mother gave her up. Amy will need to be reassured that it was not her fault. She will also need to be given a positive picture of her mother, as someone who knew herself and was able to make a responsible decision about what would be best for Amy. It is, after all, not so very long ago that considerable pressure was placed upon unmarried mothers to place their babies for adoption: far from being 'lamentable' it was regarded as the proper thing to do.

22. The law now provides a great many steps which may be taken to add to the existing security of the home which Amy enjoys with her father, should this be thought necessary. It probably does make sense to secure Amy's current living arrangements with a residence order. It may also be sensible for such a order to last until her 18th rather than her 16th birthday. A residence order can only be made to have effect after the child has reached 16 if the circumstances are exceptional (see section 9(6) of the Children Act 1989). These circumstances are certainly exceptional in the general run of residence orders. The father does not need a residence order to give him parental responsibility. Extending an order until 18 is most likely to be appropriate where the child is living with a person, such as a relative or foster parent, who does not otherwise have parental responsibility, and it is contemplated that the child will stay with that person for the rest of her childhood.

23. But there is a reason for extending the order until 18 in this case. The father is concerned about what would happen in the unlikely event of his death. Like any responsible single parent, he should give careful thought to this and appoint a suitable person guardian (either by will or in the simpler form provided for in section 5(5) of the Children Act 1989). The usual position is that such an appointment will only take effect (and the court would only have power to make an appointment if the father did not do so) if there was then no person with parental responsibility for the child. But it does take effect if immediately before his death, there was in force a residence order in his favour (see section 5(7)(b) of the Children Act 1989, and for the equivalent power in the court, section 5(1)). That in my view would be a good reason for making a residence.

24. A residence order will also give the father the right to take Amy out of the United Kingdom for up to a month (see section 13(2) of the 1989 Act), although in practice it is extremely unlikely that he would be guilty of any offence under section 1 of the Child Abduction Act 1984 if he took her abroad for longer. The court could make a specific issue order giving him power to take her abroad, either for holidays, as the Official Solicitor suggests, or for any purpose. I do not see why he should be subject to any restrictions at all, unless the mother has re-entered Amy's life and he has reason to suppose that she would object.

25. That is on the positive side of the coin, giving the father more than he would otherwise have. The other side of the coin is that it is possible to restrict the mother's power to take particular steps in meeting her parental responsibility without the consent of the court. Those steps might be contacting Amy, taking part in her education or religion, making any decision about her medical or dental treatment or health care, and vetoing the issue of a passport. I doubt whether any of this is necessary. The passport issue might be better dealt with by a specific issue order that the father have power to obtain a passport for Amy without the mother's consent.

26. Also on the negative side of the coin, the mother can be prohibited under section 91(14) of the Children Act 1989 from making any application under that Act without the leave of the court. This could be limited to applications under section 8 (that is for contact, residence, specific issue or prohibited steps orders) but section 91(14) is not so limited and I see no reason why the court's order should be so limited. The object is not to take away or impair the mother's right of access to the court. It is to ensure that the stability and security of the home which the father enjoys with Amy is not put at risk unless there is a good reason for the mother's application. The court can provide that an application is to be made to a High Court Judge (so that the Judge can have access to the file and to this judgment) and in the first instance without notice to the father. It may be appropriate to provide that notice should be given to the Official Solicitor, so that he can ensure that the court is alive to the reasons for the order and the need for caution before the father is brought into the case. Such an order would be the best protection to offer the child in this situation.

27. What does that leave? It leaves the mother with the remnants of parental responsibility which would only come into play if something very serious happened in the father's life, in which case it is by no means obvious that it would be in Amy's best interests for her mother to be deprived of any role.

28. The most likely event is the father's marriage to a woman who wished to join with him in adopting Amy. (It is however interesting that most of the reported cases dealing with step-parent adoptions relate to applications by step-fathers: step-mothers seem to feel less need for legal recognition of their status in the family.) The mother would retain her right to give or withhold agreement to that adoption. There is no reason to suppose that she would in fact withhold her agreement. It would be difficult for her to do so in the light of the approach she has taken in these proceedings. Thus it is likely that her agreement would be dispensed with. But if by any chance she had a good reason, it could only be for Amy's benefit that she were able to express it.

29. Much less likely is the father's death. Provided that he has appointed a guardian, that guardian will share parental responsibility with the mother but, if an order is made under section 91(14), the mother will only be able to make an application if she obtains leave. Once again, it might well be for Amy's benefit if her mother were to show an interest in her at such a difficult time in her life.

30. This would be all the more so in the one remaining (and very remote) possibility, that something would go so wrong with the father, or his care of Amy, that the local authority had to become involved once more and care proceedings were brought. Then it could only be to Amy's benefit that her mother retained the possibility of becoming involved in her life.

31. As Ward LJ pointed out in Re M (Adoption or Residence Order) [1998] 1 FLR 570, at p 588, in the context of section 6 of the Adoption Act 1976, 'two distinct and separate questions have to be asked before deciding whether or not to make an adoption order'. The first is whether the child should live with the applicant(s) or someone else: the answer to that question is crystal clear in this case. The second is the legal order, if any, under which the child should live with the applicant. In an unusual case like this, the advantages and disadvantages for Amy of the choice between the legal routes available for securing her future home with her father needed careful analysis before it was safe to conclude that an adoption order would safeguard and promote her welfare throughout her childhood, let alone into adult life.

32. The Adoption Act 1976 was a consolidating Act, bringing together the Adoption Act 1958 with substantial later amendments, mainly contained in the Children Act 1975. The 1975 Act was the product of the recommendations of the Departmental Committee on the Adoption of Children (chaired by Sir William Houghton until his untimely death in 1971, when the chair was taken by His Honour Judge Frank Stockdale). The committee had a balance of relevant expertise and experience amongst its members. It published a Working Paper for consultation in 1970. This provides the best evidence of the mischief against which what became section 15(3) was directed. Paragraphs 82 to 85 discussed adoption by single natural parents:

"82. There are a few cases [116 such orders were made in 1968] where a single woman adopts her own illegitimate child. A single woman has, prima facie, already, in law, the right to the custody of her child. Adoption of the child does not confer upon her rights and responsibilities towards the child which she did not have before. The creation of an adoptive relationship cannot alter the facts that she was unmarried when the child was born, and that he was born illegitimate. Insofar as the adoption is intended to put the gloss of respectability upon the facts, or even to hide them from the child, it is likely in the long run to be damaging to him rather than helpful. It is important for a child to know the truth about his origins, however distressing, and some mothers may need help in telling him of his position. The disadvantages suffered by an illegitimate child are largely the product of social attitudes rather than of his legal status.

83. Similar considerations apply to the adoption of an illegitimate child by his natural father, which is legally permissible but uncommon [10 such orders were made in 1968] A putative father has not, in law, the right to custody of his child. However, the Legitimacy Act 1959 gave a putative father the right to apply for the custody of his child under the Guardianship of Infants Acts and, as in all applications under these Acts, the welfare of the child is the first and paramount consideration. . .. therefore, it is arguable that the answer to whether the natural parents of an illegitimate child should be allowed to adopt does not differ according to whether it is the mother or the father who wishes to do so.

84. The adoption of an illegitimate child by one of his natural parents alone has one very important legal effect: it cuts out the other parent. . . Where it is the mother who adopts, the father loses such legal ties as he has with his child, including the right to apply for custody; where the father adopts, the mother loses all rights of custody and access. Insofar as the exclusion of the natural father is a motive for a mother to adopt her illegitimate child, this may seem to have an advantage in that it provides security, ensuring against any claim to custody by the father. On the other hand, it may be wrong to deprive a child of a father who is willing to recognise his child and able to assume the responsibilities of a parent. It is not in our view desirable that adoption should be used by a mother to cut the links between a child and his father, any more than it should be used by a father to sever a child's links with his mother."

33. The committee's report was published in 1972 (Cmnd 5107). This rehearsed the arguments in the Working Paper, and added:

"101. Most witnesses, while agreeing that adoption by a natural parent alone was usually unnecessary and was to be discouraged, thought that there were a few cases in which it might be in the interests of the welfare of the child. For example, if the natural mother had died, adoption by the putative father might give the child a greater feeling of security in his relationship with his father. There have also been a few cases where a natural mother has adopted her child to protect herself from the anxiety caused by repeated and vexatious applications for guardianship made by a putative father. It was also argued that adoption by the mother makes the child a full member of her family for the purpose of inheritance on an intestacy, although extinguishing the child's right to inherit on the intestacy of the putative father. We think this is better dealt with by the making of wills, or by a change in the law of inheritance by illegitimate children, than by adoption.

102. We have come to conclusion that there may be exceptional cases where adoption by a natural parent would be for the child;s welfare. We think, however, that the law should require the applicant to satisfy the court that there are special circumstances which justify, as an exceptional measure, the making of an order. The court should be required to state the reason for its opinion that there are special circumstances justifying an adoption order and to state those reasons. . "

34. The result was what is now section 15(3) of the 1976 Act (see para 12 above). This does not use the word 'exceptional' or even 'special'. In using the word 'exceptional', probably repeating the words of His Honour Judge Woolley in the county court case of Re C (A Minor)(Adoption by Parent) [1986] Family Law 360, Bracewell J applied a stricter test than the Act itself requires. On the other hand, to the extent that she regarded this case as exceptional simply because such cases are unusual, she was not focusing upon the right comparison group. The Act is looking at sole adoption applications by natural parents. It requires of this already very small and unusual group that there be some reason, comparable to the death, disappearance or anonymous sperm donation of the other natural parent, 'justifying' his or her exclusion, not only from parental responsibility for but also from the whole life and lineage of the child.

35. If the Houghton Committee in 1970 thought that there was little to justify that exclusion, how much less there is to do so thirty years later. Subsequent proposals for the reform of adoption law have retained the provision in section 15(3) of the 1976 Act: see Adoption - A Service for Children, Adoption Bill - A Consultative Document, clause 45(4) (Department of Health and Welsh Office, 1996). As already seen, the legal position of the natural father has been transformed by the Family Law Reform Act 1987. The legal position of the child has also been transformed by that Act. And much more can now be done under the Children Act 1989 to restrict the possibility of inappropriate intervention in the child's life by the other natural parent.

36. Further, section 15(3) must now be read and given effect, so far as it is possible to do so, in a way which is compatible with the convention rights, that is the rights and freedoms set out in (inter alia) article 2 to 12 of the European Convention on Human Rights (see section 3(1) of the Human Rights Act 1998). Article 8 of the Convention provides:

"'1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

37. An adoption order is undoubtedly an interference by a public authority, in the shape of the court which makes it, with the exercise of the right to respect for family life, whether by the child herself or by anyone else with whom she enjoys 'family life'. Indeed, it is the most drastic interference with that right which is permitted by the law. In the right circumstances it is a most valuable way of supplying a child with the 'family for life' to which everyone ought to be entitled and of which some children are so tragically deprived.

38. As was said in Marckx v Belgium (1979) 2 EHRR 330, which is the origin of the now extensive jurisprudence on Article 8 and family life, ' . . . respect for family life implies, in particular, in the Court's view, the existence in domestic law of legal safeguards that render possible, as from the moment of birth, the child's integration in its family.' In my view, the relationship of mother and child is in itself sufficient to establish 'family life' even if they are separated at birth. The carrying and giving birth to a child brings with it a relationship between them both which is entitled to respect. Were it otherwise, the state could always interfere without fear of contravening Article 8 by removing children the moment they were born. This only needs stating for it to be recognised how wrong that would be. The state must always justify its actions under Article 8(2).

39. There are three components to that justification. The first is that the action is 'in accordance with the law': adoption is permitted in these circumstances, but only of there is some reason to justify the mother's exclusion. The second component is that the interference is in pursuit of one of the legitimate aims defined in Article 8(2): the protection of the rights and freedoms of others undoubtedly encompasses the protection of the interests of the child. However, the third component is that the intervention must be 'necessary in a democratic society'; that is, it must meet a pressing social need and be proportionate to that need. The more drastic the interference, the greater must be the need to do it.

40. In the legal and factual circumstances of this case, it is difficult indeed to argue that there is a pressing social need to deprive Amy of all legal relationship with one half of her family of birth. As already demonstrated at some length, she already has a full and secure legal and factual relationship with her father. If there is any need to give her more, it can be provided for in a package of orders along the lines discussed. In my view, it would be a disproportionate response to her current needs to turn her from the child of two legal parents, with two legal families, into the child of only one parent, with only one legal family. Section 15(3) has to be given effect in such a way as to avoid that result.

41. I would allow this appeal, set aside the adoption order and (subject to any further representations) substitute a residence order in favour of the father until Amy reaches her majority, together with the power to apply for a passport for Amy without the mother's consent, and an unfettered power to take Amy abroad, and an order under section 91(14) prohibiting the mother from making any application under the Children Act 1989 relating to Amy without the leave of a High Court judge, any application for such leave to be made on notice to the Official Solicitor but without notice to the father unless the court otherwise directs. This will all need careful and sensitive explanation to both parents, but particularly to the mother as she has not been present or represented at this hearing, and they should be supplied with copies of the judgments of the court.

42. I entirely agree with the judgment of Lady Justice Hale which I have seen in draft and her proposed orders. I wish to make one additional point.

43. It appears from the facts that the father was not informed of the birth of the baby and the proposal to adopt until, by chance, his name was recognised by a typist in the social services offices. He was then contacted and has now become the primary carer of his daughter. In a decision which I gave at first instance, re `H' and re `G' given on 30 November 2000, I expressed my concern about the position of an unmarried father in relation to decisions made by the mother of his child without reference to him. It is impossible to tell from the facts of this case whether the local authority did take steps to try to find the father or whether they accepted the word of the mother that he was working in the United States.

44. A local authority accommodating a child has under the Children Act 1989 section 20 a duty under section 22 in so far as reasonably practicable to ascertain the wishes and feeling of each of the parents and to give due consideration to them when making any decision about the child. A local authority as an adoption agency does not have the same duty since an unmarried father without parental responsibility is not for the purposes of the Adoption Act treated as a parent. The court however under rule 9(3) or rule 21(5) has to consider who else should be given notice of the proceedings on the making of a freeing for adoption application or adoption application. It is, I hope, the practice of district judges or judges on adoption applications or freeing for adoption or adoption applications to consider whether to join the natural father. I certainly expressed the view in re'H and re'G' that in principle natural fathers should be joined as respondents to such applications. I recognise of course that there will be cases where it would be entirely unsuitable to join the natural father, such as possible violence to the mother or risk to her life if the father was informed. We have however to take into account Article 8 and Article 6 of the Convention as I set out in the judgment to which I have referred.

45. This local authority may very well have made strenuous efforts to find the father. There is however understandably a desire among local authorities to treat information as confidential and not to persue investigations in relation to a father if the mother was anxious that it should not be done. This judgment is designed to alert local authorities to the fact that this is the wrong way round and they should be looking to inform the father in the majority of cases. The desire of the mother for confidentiality is not in itself a reason for not giving the father an opportunity to be heard as to the future welfare of this child.

	`B' (A child) (by her Guardian ad Litem, the Official Solicitor)	Appellant
	- v -
	RP - and - `W' County Council - and - SB	First Respondent Second Respondent Third Respondent

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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B (a Child) v RP & Ors [2000] EWCA Civ 341 (20 December 2000) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2000/341.html Cite as: [2000] EWCA Civ 341

England and Wales Court of Appeal (Civil Division) Decisions