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F (Children) [2006] EWCA Civ 1345

Appeal by prospective adopters against an order in adoption proceedings under the 2002 Act in which the natural parents had been given notice of the proceedings. Appeal allowed.

The case is of interest as it attempts to clarify the position where a child has been freed for adoption under the Adoption Act 1976 but is the subject of proceedings under the Adoption Act 2002.


Case No: B4/2006/1805

Neutral Citation Number: [2006] EWCA Civ 1345


Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 18th October 2006
Before :


F (Children)

(Transcript of the Handed Down Judgment of
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Mr Philip McCormack (instructed by White & Sherwin, Solicitors) for the Appellants

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As Approved by the Court

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Lord Justice Wall:

1. This is the judgment of the court. Since the appeal arises in serial number adoption proceedings, we take the view that reporting restrictions should be imposed. Apart from identifying the location of the court from which the appeal arises, therefore, we do not propose to identify the children concerned or any of the other participants in the case, nor must any report of this judgment do so.

2. With permission granted by the judge, the prospective adopters of two brothers now aged 7 and 5 appeal against an order made by His Honour Judge Rylance on 31 July 2006 in the adoption proceedings, which are pending in the Guildford County Court. The material parts of the order read as follows: -

1. The natural parents of the children shall be given notice of the application and if (sic) the hearing referred to in paragraph 3 hereof.

2. The natural parents of the children shall file and serve any written statement that they wish to make with regard to this application within 7 days of receiving notice in accordance with paragraph 1.

3. The final hearing shall take place on a date provisionally fixed on the 17th August 2006 at 10.00am at Guildford County Court with a time estimate of 30 minutes. This hearing shall be limited to the question of whether an adoption and / or any other order pursuant to the Adoption and Children Act 2002 should be made.

4. At the hearing referred to in paragraph 3 hereof: -
(1) The applicants' legal representative should attend.
(2) The applicants and the children should not attend.
(3) The Local Authority ….should attend and be represented.
(4) The natural parents may attend and / or be represented if they wish to do so.

3. As we have already indicated, the judge gave the prospective adopters permission to appeal, and granted a stay of the order pending its outcome. We heard argument on it from Mr. Philip McCormack of counsel on 5 October 2006. The appeal was supported by the adoption agency which had placed the children, although, sensibly, it was not separately represented. There was, of course, no appearance by the children's birth parents, who remain unaware that the order was made.

4. At the conclusion of the argument, we announced that the appeal would be allowed, but that we would put our reasons into writing. This we now do. Given the nature of the practice issues raised by the appeal, we have taken the opportunity to show this judgment in draft to the President, who has indicated that he agrees with it, and will take steps to ensure that it is disseminated amongst those courts which have jurisdiction to hear adoption proceedings under the Adoption and Children Act 2002 (the 2002 Act).

The issue raised by the appeal
5. The 2002 Act came into force on 31 December 2005. The issue which arises from the judge's order is that whereas the adoption proceedings in this case were instituted on 30 March 2006 pursuant to section 46 of the 2002 Act, the two children concerned had been the subject of care orders under Part IV of the Children Act 1989, and had both been freed for adoption on 26 January 2005 pursuant to section 18 of the Adoption Act 1976 (the 1976 Act). They had then been placed for adoption with their prospective adopters on 12 November 2005. As the judge acknowledged, the effect of the freeing orders was to deprive the children's birth parents of parental responsibility for them. Furthermore, by virtue of the transitional provisions contained in paragraph 7 of Schedule 4 to the 2002 Act: -

(1) Nothing in this Act affects any order made under section 18 of the Adoption Act 1976 and—
(a) sections 19 to 21 of that Act are to continue to have effect in relation to such an order
(3) Where a child is free for adoption by virtue of an order made under section 18 of that Act, the third condition in section 47(6) is to be treated as satisfied.

6. These provisions, we think, warrant a short commentary. Before children could be freed for adoption under section 18 of the 1976 Act, the court; (1) had to be satisfied that an adoption order would safeguard and promote their welfare throughout their childhoods (section 6 of the 1976 Act); and (2) had to dispense with parental agreement to the making of an adoption order (section 18(1)(b)). If the child in question was not already placed for adoption, the court could not making a freeing order unless it was satisfied that it was likely the child would be so placed (section 18(3)). Before making an order, the court had to satisfy itself that the parent or parents concerned had been given the opportunity of making a declaration that they preferred not to be involved in future questions concerning the adoption of their child (section 18(6)). By a later amendment, the court had also to satisfy itself, in the case of a child whose father did not have parental responsibility, that the father had no intention of applying for it, or for a residence order in relation to the child, or, if he did make any such application, that it would be likely to be refused (section 18(7)).

7. Section 18 of the 1976 Act was plainly applied in the instance case. It appears from the papers that the children's father had parental responsibility. We assume from what has occurred in the case that no declaration under section 18(6) of the 1976 Act was made by either birth parent.

8. In these circumstances, it is plain that the effect of the freeing orders was not limited to depriving the children's birth parents of parental responsibility. Its effect was also; (1) to reduce their status to that of "former parents" (the term used in sections 19 and 20 of the 1976 Act); and (2) to limit the adoption agency's duty towards them under section 19 of the 1976 Act to informing them after 12 months from the date of the order whether an adoption order had been made in relation to the children, and if not, whether the children had their home with a person with whom they had been placed for adoption. This the adoption agency has plainly done.

9. In the present context, the reference in paragraph 4 of Schedule 7 to section 47(6) of the 2002 Act simply confirms that where a freeing order under section 18 of the 1976 Act is in existence, the court is entitled to make an adoption order under the 2002 Act without the need to dispense with parental consent.

10. There is, accordingly, no doubt at all that if the adoption proceedings had been instituted prior to 31 December 2005, the date on which the 2002 Act came into force, the birth parents of the two children concerned in this case would not have been given notice of the hearing of the application to adopt the children, nor would they have been given the opportunity either to file evidence, or to attend the adoption hearing. They would not have known about the hearing, and would not have been entitled to know about it until after it had taken place.

11. The question for this court, accordingly, is whether or not the position is different for natural parents whose children were freed for adoption under the 1976 Act, but who are the subject of adoption proceedings instituted under the 2002 Act.

The judge's view
12. The judge plainly thought it was. We do not, unfortunately and inexplicably, have a transcript of his judgment. We do, however, have counsel's note of it, which the judge has approved. In the course of that judgment, the judge reviewed the provisions of section 18 of the 1976 Act, and correctly concluded that there was nothing in the 2002 Act which revived or reinstated the parental responsibility of which both parents had been deprived. He also accepted that paragraph 7 of Schedule 4 to the 2002 Act maintained the effect of the freeing orders. Having done so, he continued as follows: -

"However in my view that is not necessarily the end of the matter. The 2002 Act makes significant changes in relation to adoption. Placement orders replace freeing orders although they are very different animals. The advent of placement orders will make, in particular, major changes to the question of parental responsibility on the making of such orders, as is clear from a reading of section 25 of the Adoption and Children Act 2002. Section 25 of the 2002 Act, in similar wording to the opening words of subsection 18(5) of the 1976 Act, provides that on the making of an order parental responsibility is vested in the adoption agency, but there are no similar provisions in the 2002 Act to the remaining words of subsection 18(5) or subsection 12(3)(a) of the 1976 Act. On the making of placement orders there will therefore be no extinguishment of parental responsibility.

My judgment is that this reflects a change in thinking and highlights a more enlightened approach to birth parents albeit a parent who has not been able to parent the child satisfactorily. So the future structure provides that birth parents with parental responsibility will retain it on the making of a placement order and will automatically be a party to a later adoption application.

The 2002 Act also introduced a new concept of making contact orders on an adoption application and, as an alternative to adoption, a special guardianship order or a residence order. The question is whether parents without parental responsibility should nonetheless be given an opportunity to say what they wish about what orders, if any, should be made under the 2002 Act? In looking at that question I consider that there are three factors that I should have in my mind:

1. The more enlightened approach to birth parents under the 2002 Act that arises from allowing them to retain parental responsibility after a placement order and their subsequent right to be a party to an adoption application.

2. There are a number of alternative orders that can be considered on the making of an adoption order that were not available to the Court when the Court approved the care plan for these two boys. The birth parents may wish to have a say and may have some useful input on these matters.

3. I have to have regard to the human rights of the birth parents and their entitlement to have some input on the question of the orders that are being sought.

In the light of those factors it is wholly wrong, in my judgment, that the birth parents should be kept in ignorance of the applications that their children should be adopted. They should be placed in a position to be able to have a say on those applications if they wish to do so. The time is gone when orders can be made in secret especially orders that would so fundamentally effect the birth parents, although I do not forget the impact that these have on the children and the prospective adopters.

There is a practice in the Guildford Courts area and, I believe, having liaised with HHJ Sleeman the Designated Family Judge, he having spoken to other DFJs, in other courts also that, for example, fathers with no parental responsibility (because they never had it) are notified of adoption applications so that they can have their say.

And in Surrey we have also developed a system of splitting the final hearing; I think the rules are a little confused in this regard. In order to avoid birth parents coming into contact with the applicants for adoption and the child, we split the final hearing over two separate days, not less than 21 days apart in order to allow for any appeal. In the first part the court considers questions of dispensing with parental consent and what orders should be made; at this hearing the birth parents can attend. The second part is for the Applicants and the child but not the birth parents to attend, and when the final order is made.

In the circumstances I consider that justice can be done only by having a hearing at which the birth parents may have their say."

13. The judge then records the submissions made to him in the following terms: -

"I am urged to have regard to the particular facts of this case. There was a fraught hearing in January 2005 which gave rise to the care and freeing orders. I am told that the birth parents, the mother in particular, are coming to terms with the loss that they have suffered and that to notify them now of these applications and to re-introduce court proceedings into their lives, and open old wounds could be harmful not just to the birth parents but could impact ultimately on the placement itself. I agree that this might be so. However if they have a right which may be exercised then I consider that the fact that they might find this stressful is neither here or there and cannot be a ground for refusing them that right.

I am also urged to consider the impact of the delay that might occur. As far as the hearing fixed for 17th August 2006 is concerned, I consider it entirely possible for the birth parents to be served and for them to attend at the hearing on 17th August and for the court then to hold the second part of the final hearing on the date that has already been fixed for that. Delay might however be caused but, if delay is purposeful, this is not a reason for not giving the parents notice. They might have something useful to say.

In my judgment, the birth parents should have the right to know about the applications that are being made. This is a general right that should be excluded only in exceptional circumstances, for example in the case of a father with no parental responsibility who has played no part in the child's life for a long time, perhaps he should then not have notice.

In my judgment this matter should be considered further by a higher court both to consider the question of the provision of notice of applications to birth parents without parental responsibility (both in the case of those who never had it and those who have lost it) and also to provide guidance on the question of splitting the final hearings in adoption applications."

14. In fairness to the judge, we need to remind ourselves that; (1) as we have already pointed out, the citation set out above is counsel's note of an extempore judgment; and (2) that the order which the judge made on 31 July 2006 followed almost verbatim an earlier order made without the benefit of legal argument by His Honour Judge Sleeman on 11 July 2006, which had not been implemented, partly because of protests made by the adoption agency and solicitors instructed on behalf of the prospective adopters, and partly because the court did not have an up to date address for the children's birth parents.

The attack on the judgment
15. Mr. McCormack attacked the judge's reasoning in a number of ways. He argued, firstly, that where children had been freed for adoption under the 1976 Act, there was no legal requirement for their parents to be notified of the final hearing. The freeing orders made on 26 January 2005 had, as the judge acknowledged, had the effect of extinguishing the parental responsibility of the natural parents. Mr. McCormack pointed out that under the Family Procedure (Adoption) Rules 2005 (the 2005 Rules) only parents with parental responsibility were included on the list of Respondents to an adoption application - see Table 2 in rule 23(1) of the 2005 Rules. He argued that the only requirement contained in the 2005 rules was a requirement to notify parties of a final hearing: - see rule 31. In the instant case, the children's birth parents could not, as a matter of law, be parties to the application, and were not entitled to be notified of the final hearing.

16. Secondly, Mr. McCormack argued that insofar as the Learned Judge purported to exercise his discretion in requiring the natural parents to be served, he had been wrong to take into account the three factors identified in the passage we have cited. In particular, the judge had failed to have proper regard to the fact that paramount consideration in the Adoption and Children Act 2002, section 1(2) was given to the welfare of the child. He had, accordingly, elevated his three factors above this, and in so doing had wrongly given precedence to the rights of the natural parents.

17. Thirdly, Mr. McCormack submitted that the judge had mistakenly concluded that the delay involved in notifying the children's birth parents could be characterised as purposeful, given that the only purpose of notification was that the natural parents "might have something useful to say".

18. Fourthly, counsel argued that the judge had been wrong to pray in aid the long-standing practice of the Guildford Courts area to notify fathers with no parental responsibility of adoption applications. That practice, Mr. McCormack submitted, had no relevance where the Court had extinguished parental responsibility.

19. We agree with Mr. McCormack that the judge was plainly wrong to hold, as he did, that the children's birth parents had a right to be notified of the final hearing of the adoption proceedings. We reach that conclusion very simply. In our judgment, paragraph 7(1) of Schedule 4 to the 2002 Act, which we have already set out in paragraph 5 above, means what it says. In other words, where proceedings for adoption are brought under the 2002 Act in respect of a child who has been freed for adoption under the 1976 Act, the court follows the procedure laid down in the 1976 Act unless any provision of the 2002 Act or the 2005 Rules requires the court to do otherwise.

20. In our judgment, nothing in either the 2002 Act or the 2005 Rules required the court to give notice of the proceedings to the children's birth parents. The fact that the 2002 Act introduces different procedures, and abolishes freeing orders, is, in our judgment, neither here nor there. Section 19 of the 1976 Act, which limits the duties of the Adoption Agency to notifying the birth parents that the children had been placed for adoption and / or adopted expressly continues to apply, and the judge was simply wrong as a matter of law to decide otherwise. His order, accordingly, cannot stand, and will be set aside.

21. In the instant case, it is clear from the reports filed by the Adoption Agency pursuant to the Practice Direction which supplements Part 5, rule 29(3) of the 2005 Rules that the Agency has kept the children's birth parents appropriately informed. They have been told that the children have been placed for adoption, and it appears that a "farewell" visit took place in September 2005. Arrangements are also in place for annual letter-box contact, and sensitive negotiations are continuing for the birth parents and the adopters to meet. Direct contact between the birth parents and the children post adoption is not envisaged, but also not ruled out at a later stage in the children's lives. In short, apart from making an adoption order, there was no future role for the court, and – irrespective of the statutory provisions - no reason for the birth parents either to attend the hearing or to make any further representations to the court.

22. In our judgment, the inapplicability of the 2005 Rules to an application for adoption made where a child has been freed for adoption is underlined by the rules themselves. Thus rules 31 and 32 of the 2005 Rules, which relate to the final hearing of an adoption application under the 2002 Act read as follows -

31 Notice of final hearing
A court officer will give notice to the parties, any children's guardian, reporting officer or children's and family reporter and to any other person that may be referred to in a practice direction –

(a) of the date and place where the application will be heard; and
(b) of the fact that, unless the person wishes or the court requires, the person need not attend

32 The final hearing
(1) Any person who has been given notice in accordance with rule 31 may attend the final hearing and, subject to paragraph (2), be heard on the question of whether an order should be made.
(2) A person whose application for the permission to oppose the making or an adoption order under section 47(3) or (5) has been refused is not entitled to be heard on the question of whether an order should be made.
(3) Any member or employee of a party which is a local authority, adoption agency or other body may address the court at the final hearing if he is authorised to do so.
(4) The court may direct that any person must attend a final hearing
(5) Paragraphs (6) and (7) apply to –
(a) an adoption order
(6) Subject to paragraphs (7) and (8), the court cannot make an order unless the applicant and the child personally attend the final hearing.
(7) The court may direct that the applicant and the child need not attend the final hearing.
(8) In the case of adoption by a couple under section 50 the court may make an adoption order after personal attendance of one only of the applicants if there are special circumstances.

23. Section 47 of the 2002 Act requires one of three conditions to be met before an adoption order can be made. As we have already seen, paragraph 7(3) of Schedule 4 to the 2002 Act provides that where a freeing order has been made under section 18 of the 1976 Act (which applied to England and Wales), the third of the conditions identified in section 47 of the 2002 Act (that the child has been freed for adoption in either Scotland or Northern Ireland) is treated as satisfied. It follows that neither section 47(3) or (5) applies to an application for an adoption order under the 2002 Act where the child has been freed for adoption under the 1976 Act.

24. There is, currently, no practice direction which supplements rule 31 of the 2005 rules, and it is clear that the rule does not apply to either of the birth parents in this case. On its face, rule 32(4) appears to give the court an unfettered discretion to direct "any person" to attend the final hearing. The construction of that rule, and precisely what "any person" means must, we think, await a case in which the point arises directly for consideration. It is, however, plain to us that even if rule 32(4) is to be construed literally, and even if the discretion under it is unfettered, it cannot properly apply to the birth parents in the instant case.

25. Any discretion given by rule 32(4) would plainly have to be exercised judicially on the facts of the individual case, and for good reason. It is equally plain, in our view, that on the facts of this case, and for the reasons we have already given, no judge, exercising that discretion, could properly have ordered that the birth parents of these two children must attend the final hearing.

26. It may be (we say no more) that there are cases under the 2002 Act in which it is appropriate to direct that a birth parent without parental responsibility must attend the final hearing. This, however, is a transitional case, which was only issued under the 2002 Act because by the time the proceedings came to be issued, that Act was in force.

27. Accordingly, we do not think it appropriate to accept the judge's invitation to consider the circumstances under the 2002 Act in which it will be appropriate to direct that birth parents without parental responsibility should be directed to attend a final adoption hearing. As we have already made clear, any such consideration in this court must await a case in which the point arises.

28. However, we think it appropriate, albeit briefly, to comment on the practice in the Guildford County Court of splitting final adoption hearings under the 2002 Act, so that children's birth parents and prospective adopters attend on different days. The reason for this, as the judge himself explains, is to prevent the birth parents and the prospective adopters coming into contact when they do not know each other, and where it is inappropriate for the birth parents to know who the prospective adopters are or where they live.

29. In some courts (such as the Royal Courts of Justice) there are facilities for birth parents and adopters to listen to each others' evidence in different parts of the building without ever coming into contact. In most courts, such facilities do not exist.

30. If the birth parents attend the first part of the hearing (with the applicants' legal representative present) and the judge comes to the conclusion that a adoption order should be made, this means that the prospective adopters can attend the second limb with the child or children concerned, without any risk that the natural parents will be present. Once the order is made, an informal ceremony can then take place, in which the judge meets the children concerned and the adopters, photographs are taken, and, in some courts, the children are presented with an informal certificate marking the occasion.

31. We both speak from our respective first instance experience when we say that these occasions are important, since children who have often had very disturbed or unhappy backgrounds are being given the opportunity, through adoption, to make a fresh start. Sensitively handled, such an occasion is, we believe, of considerable value to both the adopters and the child, and marks a rite of passage at a critical moment of the child's life.

32. The 2005 Rules are not, in our view, confused. They simply facilitate the process we have described. The practice in the Guildford County Court of splitting final hearings is, accordingly, in our judgment wholly correct when applied to the appropriate case under the 2002 Act. No doubt in the instant case, the prospective adopters will in due course attend the final hearing with the children. For that purpose, however, a split hearing is not required in this case.

33. The appeal will, accordingly, be allowed. The matter will now proceed to a final hearing as soon as possible without notice of that hearing being given to the children's birth parents.