December 2007

PUBLIC CHILDREN

Whether judge erred in determination of frequency of post-adoption contact

Re C (children) (contact) [2007] All ER (D) 463 (Oct)
BFLS 5A[101]; CHM 1[1056]; Rayden 1(2) 47.58

D and C were born, in 2000 and 2004 respectively, into a family affected by alcoholism and domestic violence. During the course of family proceedings, in the face of the mother’s opposition to placement orders being made with a view to the children being adopted, the district judge dispensed with the requirement of parental consent thereto. Notwithstanding agreement between the parties that contact with the mother should continue post-placement, a dispute arose as to the frequency of direct contact and as to the need to make a contact order.

The local authority took the view that direct contact should take place once annually, in addition to indirect contact by letters and photos twice annually. R gave evidence on behalf of the local authority’s placement officer that contact would prejudice the likelihood of placement. The guardian recommended that direct contact should take place twice annually, stating that the need for contact was so great that the need for adoption ought not to take priority. The district judge held that direct contact should take place once annually and that it was not in the interests of the children to make a contact order pursuant to the Children and Adoption Act 2002, s 26 as the local authority was committed to post-placement contact. The mother and guardian appealed.

The mother submitted, inter alia, that the district judge had failed to provide full and cogent reasons for departing from the recommendations of the guardian. In the alternative, she submitted that, if such reasons had been given, the district judge had failed to give adequate weight to the recommendations. She further submitted that, in the event that contact should be ordered twice annually, an order should be made under s 26 of the Act as such an outcome was very different to what the local authority had proposed. The guardian invited the court to make such an order even if the decision as to frequency of contact was upheld, as otherwise there would be no need to police the contact arrangements.

The mother’s appeal was dismissed on the following basis:

                   (1)     the district judge had been compelled to make a choice between two witnesses as to who she was to rely upon regarding the critical matter of contact. On a fair reading of her judgment, it was entirely implicit that she had accepted R’s evidence in preference to that of the guardian. She had quite clearly expressed why it had been that she accepted her evidence. In the light of that, it was unarguable that the district judge had failed to give adequate weight to the guardian’s recommendations. She had plainly given consideration to them, but had felt compelled to prefer the evidence of R;

                   (2)     whether or not an order under s 26 of the Act should have been made had been a matter for the court’s discretion. The district judge had come to a conclusion, a factual conclusion which was not susceptible to appeal unless plainly wrong, that the local authority was committed to post-placement contact. It was impossible to say that that was a perverse conclusion.

Comment Section 26 of the Adoption and Children Act 2002 (amendments pursuant the Adoption and Children Act 2006 italicised) provides:

                   (1)     On an adoption agency being authorised to place a child for adoption, or placing a child for adoption who is less than six weeks old, any provision for contact under the 1989 Act ceases to have effect [and any contact activity direction relating to contact with the child is discharged].

                   (2)     While an adoption agency is so authorised or a child is placed for adoption–

                   (a)     no application may be made for any provision for contact under that Act, but

                   (b)     the court may make an order under this section requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other.

                   (3) An application for an order under this section may be made by–

                   (a)     the child or the agency,

                   (b)     any parent, guardian or relative,

                   (c)     any person in whose favour there was provision for contact under the 1989 Act which ceased to have effect by virtue of subsection (1),

                   (d)     if a residence order was in force immediately before the adoption agency was authorised to place the child for adoption or (as the case may be) placed the child for adoption at a time when he was less than six weeks old, the person in whose favour the order was made,

                   (e)     if a person had care of the child immediately before that time by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person,

                   (f)     any person who has obtained the court’s leave to make the application.

                   (4)     When making a placement order, the court may on its own initiative make an order under this section.

                   (5)     This section does not prevent an application for a contact order under section 8 of the 1989 Act being made where the application is to be heard together with an application for an adoption order in respect of the child.

                   (6)     In this section, [‘contact activity direction’ has the meaning given by section 11A of the 1989 Act and] ‘provision for contact under the 1989 Act’ means a contact order under section 8 of that Act or an order under section 34 of that Act (parental contact with children in care).

In the instant case the court took the view that the judge at first instance had been correct in her consideration of the evidence and the making on an order under the section.

Whether authority under duty to make enquiries about long-term care for child with family

Re C (a child) (adoption: duty of local authority) [2007] EWCA Civ 1206, [2007] All ER (D) 368 (Nov)
BFLS 1A[3004]; CHM 1[75]-[80]; Rayden 1(2) 49.71

The 19-year-old unmarried mother of a child, now four months old, had not realised that she was pregnant until a late stage. The pregnancy was the result of a one-night stand. The mother had kept her pregnancy a secret from her family, and only sought medical help when she went into labour. Immediately after the child was born, she made it clear that she wanted her placed for adoption. She also said that she did not think that her family could give the child a home, giving reasons. She declined to identify the child’s father.

The local authority applied for a care order under the Children Act 1989. The judge held that under the Adoption and Children Act 2002 the authority was under a duty to inform itself of as much information about the background of the extended family as it was able to do. He directed the authority to disclose the existence and identity of the child to the extended maternal family and, if he could be identified, the putative father and any extended paternal family. He overruled the mother’s objections, in the interests of the child.

After the judge had made his order, there was a misunderstanding as a result of which the children’s social care section of the authority wrote to the mother’s parents seeking an interview but not giving the reason. The parents discovered that the mother had given birth to the child and contacted the authority offering to assist in resolving the situation. The parents had not taken part in the instant proceedings and had not been made a party to them. The mother appealed against the judge’s order.

The following issues arose on the appeal:

                   (i)     whether s 1 of the 2002 Act imposed a duty on the local authority to make enquiries about long-term care for the child with her mother’s family and, if those enquiries did not yield a long-term carer for her, with the child’s father, if identified, and his family; and

                   (ii)     how the court’s discretion to give directions about contacting the extended family or father of a child in a case such as the instant case should be exercised.

The appeal was allowed by the Court of Appeal on the following basis:

                   (1)     When a decision was required to be made about the long-term care of a child, whom a mother wished to be adopted, there was no duty to make enquiries which it was not in the interests of the child to make, and enquiries were not in the interests of the child simply because they would provide more information about the child’s background: they had genuinely to further the prospect of finding a long-term carer for the child without delay. That interpretation did not violate the right to family life. The objective of finding long-term care had to be the focus of making any further enquiries and that meant the court had to evaluate evidence about those prospects.

                   In the instant case, the judge had directed himself according to the wrong principle and his exercise of discretion had to be set aside. The court therefore had to exercise the discretion afresh.

                   (2)     The court should not require a preference to be given as a matter of policy to the natural family of a child. Section 1 did not impose any such policy. Rather, it required the interests of the child to be considered. Where a child had never lived with her birth family, and was too young to understand what was going on, that argument had to be weaker. In a case such as the instant case, it was (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that could be done.

A strict view had to be taken of the situation, because the child was already four months old, and starting to form relationships. Moreover, in view of the conclusion that the authority should not have informed the mother’s parents about the child, it would be unfair to the mother if they were placed in a better position than they would have been in if the authority had not told them about the child, simply because of the mistake that had occurred. The mother had no part in that. Furthermore, the mother’s parents were not shut out from making their own application to have long-term care of the child, if they wished to do so. They could take out an application under the 1989 Act. The father was only a one-night stand, and had no family life with the child or the mother, entitling him to the guarantee of respect for that family life under Art 8 of the European Convention on Human Rights. There was no basis for supposing that he could provide a home for the child. Steps would have to be taken to identify who he was. The prospects of his being a long-term carer were too intangible to justify a delay in making a placement for the child.

The judge’s order was set aside. The authority and the child’s guardian would be directed to take no steps to identify the father or to inform him of the birth of the child; or to introduce the child to her grandparents or to assess them as potential carers for her. The authority would be further directed to meet the maternal grandparents to explain to them the outcome of the appeal.

Comment On the issue of human rights, Arden LJ commented:

‘The Strasbourg jurisprudence appears to establish that near relatives, particularly grandparents, automatically have a family life with a child even if the child has never lived with them: see Marckx v Belgium (1979-1980) 2 EHRR 330 at [45]. But, in other situations at least, it all depends on the facts. It includes a potential relationship, that is, a relationship which may develop. However, family life as between a father and a child born out of wedlock is not automatic. The father must have had some relationship with the mother and expressed his commitment to the child in some way, even if there was no cohabitation: Nylund v Finland Application No 27110/95, 29.12.99; cf JRM v Netherlands [Application No 16944/90] and see Re H; Re G, above. Moreover, intended family life may, in some circumstances, be enough to establish a right to respect for one’s family life: Pini v Romania (2005) 40 EHRR 13.’

Following the authorities, the father of E would have no right to respect for his family life with E because he had no family life with her. He had never lived with her mother or expressed any commitment to E. In reality he could not have done so because he did not know of her existence. The Court of Appeal took the view that it is not a violation of a Convention right to deprive a father of the possibility of obtaining a right to respect family life with a child and if there is no Convention right under Art 8(1), accordingly it is unnecessary to ask whether Art 8(2) would apply.