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Re B [2001] UKHL 70

Appeal by father to reinstate an adoption order reversed at the Court of Appeal under which he became the sole adoptive parent

HOUSE OF LORDS

Lord Nicholls of Birkenhead

Lord Mackay of Clashfern

Lord Hoffmann Lord Millett

Lord Rodger of Earlsferry

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

IN RE B (A MINOR)

(RESPONDENT)

ON 17 DECEMBER 2001

[2001] UKHL 70

LORD NICHOLLS OF BIRKENHEAD

My Lords,

1. This appeal concerns an adoption order, sought by one natural parent (the father) with the consent of the other (the mother). The child is a girl, now three years old. Bracewell J made the adoption order: see [2000] 2 FLR 717. The Court of Appeal, comprising Dame Elizabeth Butler-Sloss P and Potter and Hale LJJ, reversed her decision: see [2001] 1 FLR 589. The father has appealed to your Lordships' House. At no stage has the mother taken any part in the proceedings.

The story

2. From August 1997 the mother and the father, neither of whom is married, had a sexual relationship. This ended in April 1998. Early in 1998 the mother became pregnant, although she did not realise this until some months later. The child ('A') was born on 19 October 1998. The mother was then aged 28. Without looking at her baby the mother told the hospital staff that she wanted to have the child adopted. This was the mother's second child. Her first child, also a daughter, was born in 1993. On that occasion, and in accordance with the mother's wishes, the child had been adopted.

3. So A, when four days old, was placed with foster parents with a view to adoption. Since the birth the mother has never met A nor, save at a distance, seen her. The father, then aged 25, was not aware of the mother's pregnancy or of A's birth. Purely by chance the local social services authority learned of the father's whereabouts. They contacted him, and he quickly expressed his desire to look after A. The mother then co-operated with the father in making arrangements for A's care. On 27 November 1998 they registered A's birth together, with the father's surname. On 7 December 1998 they entered into a parental responsibility agreement, whereby the father was to have parental responsibility as well as the mother. On 19 December 1998 A was placed with her father, and he has looked after her ever since. He gave up paid employment in order to do so. Child A is thriving. The issue in the case is not whether the father should continue to care for A as a single natural parent. That is not in doubt. The issue is whether he should become her sole adoptive parent.

The adoption proceedings

4. The father made his adoption application to his local Family Proceedings Court on 26 April 1999. His understanding was that the mother was willing to agree. Subsequently her views wavered. The proceedings were transferred to the High Court because of their unusual nature.

5. The father is seeking an adoption order primarily because he is anxious to secure A's future in his sole care. He feels insecure, and believes he will feel more secure knowing that the mother's parental responsibility for A has been removed. This can only be achieved by an adoption order. The mother has said repeatedly she does not wish to play any part in A's life. But the father is concerned that, without an adoption order, it will remain possible in future years for the mother to pose a threat to A's continued placement with him. He is concerned that the mother may marry and, with her new husband, ask to have A to live with her. The court might look favourably upon such an application. His vulnerability to an attempt by the mother to reclaim A is something which has caused him great anxiety. He is adamant in his wish for an adoption order, although whatever order is made will not affect the strength of his commitment to A. He does not, in principle, exclude the possibility of future contact by the mother with A, provided the placement with him is secure. He is willing to adhere to his arrangement with the mother to provide an annual progress report and photograph. The mother has a similar arrangement with the adoptive parents of her elder daughter.

6. In his report to the court the Official Solicitor, acting as A's guardian, opposed the application. The sole consequence of an adoption order would be to end the mother's relationship with A. This was not an order which could be said to safeguard and promote A's welfare. There was nothing in the history of the case to suggest that the mother would be likely to seek to disrupt the security of A's placement with her father. But any attempt by her to do so would not necessarily be to A's disadvantage. Further, the court has to be satisfied, before making an adoption order, that there is some reason justifying the exclusion of the mother, as required by section 15(3) of the Adoption Act 1976. There was no sufficient reason in this case. A's placement with her father should be secured by a residence order, suitable prohibited steps orders, and an order requiring the mother to obtain permission from the court before making any application for an order under section 8 of the Children Act 1989.

7. After this report had been prepared the Official Solicitor was able to meet the mother. Her response to the Official Solicitor's report was that, although she considered the application was premature, she could understand the father's reasons and was not going to stand in his way. She made clear she would never seek to interfere with the lives of A and her father. She was not seeking direct contact with A. While she could not say this would always be her position, as a first step she would obtain legal advice. She would not simply turn up on the father's doorstep. She wished to maintain indirect contact with a yearly photograph and progress report. She then signed, in the presence of the Official Solicitor, the prescribed form of consent to the making of an adoption order. That was on 20 June 2000.

The decision of the Judge

8. The application proceeded before Bracewell J on 29 June 2000 on the basis of affidavit evidence and reports. There was no oral evidence. The judge concluded that the welfare of A 'demands' there should be an adoption order 'in order to promote her welfare throughout her childhood'. To comply with the requirements of section 15(3) of the Adoption Act 1976 the circumstances must be exceptional. That was so here. The reasons for the exclusion of the mother were that she had rejected A from birth and played no part in her care or upbringing, and she had consented to the adoption and wished to play no part in A's life in the future, other than to have indirect contact. The judge said:

'This is not a case in which the mother has hesitated and weighed in the balance what she can provide for the child and what the father can provide. She has no interest in having any direct contact with A or participating in her upbringing. She is an intelligent, reflective woman, who has been able to consider the position and has reached a reasoned position of not wanting to play a part in A's life.'

The decision of the Court of Appeal

9. With the leave of the judge, the Official Solicitor appealed from her decision. Hale LJ gave the leading judgment in the Court of Appeal. She considered that Bracewell J had misdirected herself on the requirements of section 15(3)(b) of the Adoption Act 1976. Section 15(3), as amended by the Human Fertilisation and Embryology Act 1990, section 49(5), Schedule 4, paragraph 4, provides:

'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-

(a) the other natural parent is dead or cannot be found or, by virtue of section 28 of the Human Fertilisation and Embryology Act 1990, there is no other parent, or

(b) there is some other reason justifying the exclusion of the other natural parent,

and where such an order is made the reason justifying the exclusion of the other natural parent shall be recorded by the court.'

Hale LJ noted that this provision is directed at sole adoption applications by natural parents. She continued, at p 598, para 34:

'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.'

10. Hale LJ found reinforcement for a restrictive interpretation of section 15(3)(b) ('some reason comparable to the death, disappearance or anonymous sperm donation of the other natural parent') in the need to read and give effect to this statutory provision, so far as possible, in a way which is compatible with the rights set out in article 8 of the European Convention for the protection of Human Rights and Fundamental Freedoms. Article 8 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 well-being 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.'

11. Hale LJ noted that an adoption order is 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. There are three components in the exceptions permitted under article 8(2): the intervention must be 'in accordance with the law', in pursuit of one of the legitimate aims defined in article 8(2), and 'necessary in a democratic society'. There is no difficulty with the first two components. The Adoption Act permits adoption in the circumstances of child A, but only if there is reason to exclude the mother. The intervention by the court is to protect the interests of the child. As to the third component, the interference must meet a pressing social need and be proportionate to that need. Hale LJ said, at p 599 in paragraph 40 of her judgment:

'… it is difficult indeed to argue that there is a pressing social need to deprive A of all legal relationship with one half of her family of birth. … 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.'

12. Dame Elizabeth Butler-Sloss P and Potter LJ agreed. The Court of Appeal set aside the adoption order, and substituted a residence order in favour of the father and an order prohibiting the mother from making any application under the Children Act 1989 relating to A 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 directs otherwise.

The grounds on which the Court of Appeal intervened

13. The essence of the reasoning of Hale LJ in paragraph 40 was that she formed a different view from the first instance judge on whether it was in the best interests of this little girl that the court should make an adoption order. Using the structure of article 8(2) of the Convention as a framework, she expressed the view that adoption was not in A's best interests. Adoption by her father would be a 'disproportionate response' to her current needs.

14. Unquestionably, on the facts in the present case this assessment of the course which is in the best interests of A was a possible view. But before any question can arise of the Court of Appeal making its own assessment of the requirements of A's welfare and substituting this for the judge's assessment, it must be shown that the judge erred in some relevant respect: by misdirecting herself on the law or the evidence, or by being so plainly wrong that she must have misdirected herself.

15. This principle is so well established as scarcely to bear repetition: see, for instance, the observations of Lord Scarman in B v W (Wardship: Appeal) [1979] 1 WLR 1041, 1055 , and Lord Fraser of Tullybelton in G v G (Minors: Custody Appeal) [1985] 1 WLR 647, 650-653. On the instant appeal leading counsel appearing for A's guardian submitted that, since this is not a case in which oral evidence was heard, it was more readily open to the Court of Appeal to substitute its view for that of the trial judge. He submitted that in so far as the Court of Appeal differed from the judge's evaluation of the inferences to be drawn from the primary facts, the Court of Appeal was in as good a position as the judge and, therefore, it was entitled to form its own independent opinion. In the light of this submission I must elaborate a little on this point.

16. In cases such as the present the first instance judge decides which order, if any, he considers is in the best interests of the child. When doing so the judge is often said to be exercising his 'discretion'. In this context this expression is descriptive of the judicial evaluation and balancing of a number of factors from which an overall conclusion is reached on a concept whose application in any given case is inherently imprecise. There is no objectively certain answer on which of two or more possible courses is in the best interests of a child In all save the most straightforward cases, there are competing factors, some pointing one way and some another. There is no means of demonstrating that one answer is clearly right and another clearly wrong. There are too many uncertainties involved in what, after all, is an attempt to peer into the future and assess the advantages and disadvantages which this or that course will or may have for the child.

17. Hence the rationale underlying what I may call the principle in G v G. Courts of appeal exist to remedy mistakes in the first instance process. The Court of Appeal is not intended to be a forum in which unsuccessful litigants, where no error occurred at first instance, may have a second trial of the same issue by different judges under the guise of an appeal. The mere fact that appellate judges might have reached a different conclusion had they been carrying out the evaluation and balancing exercise does not mean that the first instance judge fell into error. That fact does not, of itself, require or entitle the Court of Appeal to intervene.

18. Frequently a judge at first instance will exercise his discretion as described above in proceedings where he will also have to evaluate witnesses and their oral testimony. Depending on the circumstances, this feature may be an additional reason why an appellate court should be slow to intervene. But the presence of this additional feature is not an essential ingredient of the circumstances in which the principle in G v G is applicable. The principle in G v G applies irrespective of whether the evidence before the judge is oral or written, disputed or agreed. This principle is applicable in the present case even though the evidence before Bracewell J was wholly in written form.

19. The matters discussed above are not peculiar to cases relating to children. There are many types of case where the principle in G v G is applicable, with greater or less force. In his valuable observations in In re Grayan Building Services Ltd (in liquidation) [1995] Ch 241, 254-255, my noble and learned friend Lord Hoffmann, then Hoffmann LJ, pointed out that the standards applied by the law in different contexts vary a great deal in precision: 'generally speaking, the vaguer the standard and the greater the number of factors which the court has to weigh up in deciding whether or not the standards have been met, the more reluctant an appellate court will be to interfere with the trial judge's decision.' 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.

20. It goes without saying that in the present case the highly experienced members of the Court of Appeal had these principles in mind. Application of these principles is part of the staple diet of judges in that court. Two strands of criticism of the judge's judgment are discernible in the judgment of Hale LJ. The first, already mentioned, is that the judge materially misdirected herself on the proper interpretation and application of section 15(3) of the Adoption Act 1976. If she did, the Court of Appeal was bound to carry out afresh the exercise of deciding whether, overall, it was in the best interests of A that an adoption order should be made in favour of her father. But if the judge did not err on this point, her decision must be allowed to stand unless, and this is the second criticism implicitly made by the Court of Appeal, her decision was plainly wrong.

Section 15(3): 'some other reason'

21. The Adoption Act 1976 requires the court, when deciding whether to make an adoption order, to have regard to all the circumstances. First consideration is to be given to the need to safeguard and promote the welfare of the child throughout his childhood: section 6. An adoption order in favour of one natural parent alone will have the effect of excluding the other parent. In the present case an adoption order will mean that A is treated in law as if she were not the child of her mother: section 39(2).

22. On its face this permanent exclusion of the child's mother from the life of the child is a drastic and detrimental consequence of adoption so far as the child is concerned. How serious this loss is likely to be depends on the circumstances of the case. In deciding whether to make an order having this consequence the court must always be satisfied that this course is in the best interests of the child. There must be some reason justifying the exclusion of the other natural parent. The reason must be sufficient to outweigh the adverse consequences such an order may have by reason of the exclusion of one parent from the child's life. Consent of the excluded parent is not of itself a sufficient reason, but it is a factor to be taken into account. Its weight will depend on the circumstances.

23. In so far as the Court of Appeal construed section 15(3)(b) more restrictively than this, I am unable to agree. Section 15(3) imposes a prerequisite to the making of an adoption order on the application of the mother or father alone. One or other of the exceptions set out in paragraphs (a) and (b) must be satisfied. The three exceptions listed in paragraph (a) are instances where the other natural parent cannot have, or is unlikely to have, any further part in the child's upbringing and life. But these three exceptions are not an exhaustive list of the circumstances in which a natural parent is unlikely in practice to have a further role in a child's life. Further, there may be other situations when the welfare of the child justifies the exclusion of a natural parent. Abandonment, or persistent neglect or ill-treatment of the child, could be instances.

24. It is not surprising, therefore, that the exception stated in paragraph (b) is altogether open-ended. No doubt this was a deliberate choice of language. I can see no ground for importing into this exception an unexpressed limitation whereby 'some other reason' must be comparable with the death or disappearance of the other natural parent. What is required by paragraph (b), and all that is required, is that the reason, whatever it be, must be sufficient to justify the exclusion of the other parent. Whether any particular reason satisfies this test depends on the circumstances. This is a matter left to the decision of the court. On this question of interpretation I respectfully consider the Court of Appeal was unduly restrictive in its approach.

25. An adoption order in favour of a single natural parent alone will also have the effect of permanently extinguishing any parental responsibility of the other natural parent: section 12(3)(a) of the Adoption Act 1976. This will afford the adoptive parent a measure of additional security. But it is important here to keep in mind the wide range of powers the court now has under the Children Act 1989 to restrict the possibility of inappropriate intervention in the child's life by the other natural parent. Adoption is not intended to be used simply as the means by which to protect the child's life with one natural parent against inappropriate intervention by the other natural parent.

26. Another consequence adoption has in this type of case is that after adoption the child will be treated in law as if she had been borne to her adoptive parent in wedlock: section 39(1)(b) of the 1976 Act. The significance of this benefit today should not be overstated. The social and legal status of children born outside marriage has changed greatly in recent years. The social stigma and legal disabilities attendant upon 'illegitimacy' have now largely gone. Two children in every five born in this country are born outside marriage. Unless a contrary intention appears, statutes enacted after 1987 are to be interpreted without regard to whether a person's parents were married at any time. So also are wills and the existing statutory provisions relating to intestacy: see sections 1, 18 and 19 of the Family Law Reform Act 1987.

27. Having regard to all these matters, the circumstances in which it will be in the best interests of a child to make an adoption order in favour of one natural parent alone, thereby, in Hale LJ's words, taking away one half of the child's legal family, are likely to be exceptional. Bracewell J regarded the circumstances of the present case as exceptional. She said so. The father's case was that the mother's continuing status as a parent with parental responsibility for A would perpetuate insecurity for him and that this would potentially affect A's stability. The judge accepted this. This is clear from the tenor of her extempore judgment, although she did not expressly so state. The chance circumstance which brought A's father into A's life and upbringing was bound to add to his anxieties. Given the mother's attitude to A from the moment of A's birth, and her consent, adoption by the father was in A's best interests. Adoption was in A's best interests even though this would have the consequence of excluding the mother.

28. In my view, on the evidence before her this conclusion was open to Bracewell J. I can see no indication that she misdirected herself on the proper interpretation or application of section 15(3). Nor do I consider her decision can be said to be manifestly wrong. That an adoption order as sought by A's father will safeguard and promote A's welfare is a wholly tenable view. A residence order, together with an appropriate prohibited steps order, may not suffice to allay the father's genuine anxieties. In this type of case explicit analysis of the advantages and disadvantages of adoption must always be desirable. But I do not think the absence of such an analysis from Bracewell J's judgment vitiates, or casts doubt, on her conclusion. The reasoning implicit in her judgment is sufficiently apparent.

Article 8: the right to respect for family life

29. In reaching the contrary conclusion the Court of Appeal was influenced by its interpretation and application of article 8 of the Convention. In considering this point it is important to keep in mind that in the present case the individual whose right has to be respected is the child. The mother has freely and unconditionally agreed to the making of an adoption order, with a full appreciation of the consequences. So there is no question of adoption being a violation of her rights under article 8.

30. As to child A's rights, I agree with the Court of Appeal that the relationship of mother and child is of itself sufficient to establish 'family life'. I agree also that section 15(3) has to be given effect to in such a way as to avoid the result that a court might make an adoption order excluding one natural parent from the life of the child when this would represent an interference disproportionate to the child's needs. Where I part company with the Court of Appeal is that, unlike the Court of Appeal, I think this undesirable and unacceptable result is already precluded by the Adoption Act itself. There is no discordance between the statute and article 8 on this point. There is no need to 'read down' section 15(3)(b) so as to avoid incompatibility which otherwise would exist. There is no need to have recourse to section 3 of the Human Rights Act 1998.

31. My reason for holding this view is as follows. Take a case, such as the instant case, where the natural father alone seeks an adoption order. The court hears evidence and representations from all concerned, including the child's guardian. The mother consents to the application. The court considers the advantages and disadvantages adoption would have for the child. The court decides that an adoption order is best for the child in all the circumstances. I do not see how an adoption order made in this way can infringe the child's rights under article 8. Under article 8 the adoption order must meet a pressing social need and be a proportionate response to that need: see, for example, Silver v United Kingdom (1983) 5 EHRR 347, 376-377, paragraph 97(c). Inherent in both these Convention concepts is a balancing exercise, weighing the advantages and the disadvantages. But this balancing exercise, required by article 8, does not differ in substance from the like balancing exercise undertaken by a court when deciding whether, in the conventional phraseology of English law, adoption would be in the best interests of the child. The like considerations fall to be taken into account. Although the phraseology is different, the criteria to be applied in deciding whether an adoption order is justified under article 8(2) lead to the same result as the conventional tests applied by English law. Thus, unless the court misdirected itself in some material respect when balancing the competing factors, its conclusion that an adoption order is in the best interests of the child, even though this would exclude the mother from the child's life, identifies the pressing social need for adoption (the need to safeguard and promote the child's welfare) and represents the court's considered view on proportionality. That is the effect of the judge's decision in the present case. Article 8(2) does not call for more.

32. I would allow this appeal and restore the order of Bracewell J.

LORD MACKAY OF CLASHFERN

My Lords,

33. I have had the advantage of reading in draft the speech delivered by my noble and learned friend Lord Nicholls of Birkenhead. I agree with him that this appeal should be allowed and the order of Bracewell J restored for the reasons that he has given.

LORD HOFFMANN

My Lords,

34. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Nicholls of Birkenhead. I agree with it, and for the reasons he gives I too would allow the appeal and restore the order of Bracewell J.

LORD MILLETT

My Lords,

35. I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Nicholls of Birkenhead. I agree with it, and for the reasons he gives I too would allow the appeal and restore the order of Bracewell J.

LORD RODGER OF EARLSFERRY

My Lords,

36. I have had the privilege of reading the speech of my noble and learned friend, Lord Nicholls of Birkenhead, in draft. For the reasons which he gives I too would allow the appeal and restore the order of Bracewell. J.