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Re F and J (Children) [2005] EWCA Civ 349

Mother’s withholding of agreement to making of freeing orders was unreasonable.

Re F and J (Children) [2005] EWCA Civ 349

Court of Appeal: Rix, Wall and Hooper LJJ (9 March 2005)

Mother's withholding of agreement to making of freeing orders was unreasonable.

This was an application by a mother, who suffered from mental ill-health, for permission to appeal against orders freeing her two children for adoption. At the date the children were freed for adoption, they were both the subject of care orders which had been made by the judge on the previous day. By the time of the final hearing of the care proceedings in October 2004, the children had been in foster care for the best part of two years. The local authority's care plan, which was accepted by the judge, was essentially that the children should be adopted together in one placement, and contact between the children and their mother should be gradually reduced and then terminated on placement for adoption. The mother's case in the care proceedings was that the children should be rehabilitated to her care over a period of time.

In the freeing proceedings, the mother refused to agree to the making of the freeing orders. The judge considered the question of the mother's contact and whether or not there should be an order for contact; the welfare of the children was paramount, and the judge came to the clear conclusion that contact was not a primary need for the children. Their primary need was for a permanent placement and any delay in their permanent placement in order to accommodate contact would not be in their best interests. That position had the powerful support of the guardian. Further, the judge had to decide whether or not the mother was unreasonably withholding her agreement; and one of the matters about which he had to be satisfied, for the purposes of section 18(3) of the Adoption Act 1976, was whether or not it was likely that the children would indeed be placed for adoption. He concluded that the children were likely to be placed within the next 12 months; the advantages of adoption sufficiently outweighed the views of the objecting parent, and it was therefore appropriate, in the children's best interests, to override those views.

The mother appealed on the grounds that the judge was wrong in his findings (1) that the provisions of s 18(3) had been satisfied, and (2) that she was unreasonable in refusing consent.

Held, refusing the application for permission to appeal, that the judge was not only alert to the provisions of s 18(3) but was satisfied that they had been met. Also, the judge was entitled to find that the mother was unreasonably withholding her agreement, and he did so by a careful examination of all the relevant material.

The Adoption Act 1976 notoriously requires the Court to perform mental gymnastics around the willingness of reasonable parents to consent to adoption. This is never more absurd than in those cases involving parents whose mental health is impaired, but in this case the appeal focuses also on the crystal ball gazing element of being satisfied that placement will take place within the year when no steps can have been taken towards it for fear of prejudicing the final decision. The Adoption and Children Act 2002 dispenses with both these philosophical hoops and replaces them with a welfare test and placement orders.

Tacey Cronin, Albion Chambers

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