Lords support judge`s in-family adoption decision

An adoption application in respect of his own child made by a
single father with the agreement of the mother has ultimately been
successful. The mother had wanted nothing to do with the baby from
birth and continued in that view.

At the initial hearing Mrs Justice Bracewell decided in favour
of adoption. The court of appeal overruled her decision. The House
of Lords has now overturned the decision of the court of
appeal.

There is a single opinion of Lord Nicholls in the House of Lords
with which the remainder of the Lords concurred. The decision is
fundamentally based on a legal principle (known as the rule in G v
G) that the appellate court is not intended to be a forum for a
retrial, but exists only to correct mistakes – in other words
where possible the decision should be left to the discretion of the
trial judge. Lord Nicholls commented: ‘Cases relating to the
welfare of children tend to be towards the edge of the spectrum
where an appellate court is particularly reluctant to interfere
with the judge’s decision.’

In the court of appeal Lady Justice Hale had held that, in the
light of Article 8 of the European Convention on Human Rights, it
was necessary to demonstrate that the interference met a pressing
social need and was proportionate to that need. She held that
s15(3)(b) of the Adoption Act 1976 (which allows for ‘any
other reason’) should be interpreted in terms comparable to
s15(3)(a) which permitted the adoption by a single parent where the
other parent was dead or could not be found or there was no other
parent (under the Human Fertilisation and Embryology Act 1990).
Lord Nicholls said this was too narrow and was a matter for the
judge.

Lord Nicholls pointed out that the only violation of human
rights in this case could be in respect of the child. But he took
the view that a decision by the court, having balanced the
advantages and disadvantages, that adoption was in the best
interests of the child, identified a pressing social need (to
safeguard and promote the child’s welfare). The original decision
represented the court’s considered view on whether the interference
was proportionate to the need.

This was an interesting conflict between social policy on when
in-family adoption is appropriate and the limits of effecting
change through the Human Rights Act. A House of Lords containing no
law lord with experience of family law has overturned a decision by
a court of appeal which included the President of the Family
Division and one of the most experienced family judges in the
court. Whatever one thinks of the principle of in-family adoption,
one might have hoped for a better exposition of family policy
rather than a simple dismissal on G v G grounds.

Richard White

White and Sherwin Solicitors