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Down Lisburn Health and Social Services Trust and another (AP) v H (AP) and another (AP) [2006] UKHL 36

Parents’ appeal against decision to dispense with their consent to a freeing order is dismissed.

Down Lisburn Health and Social Services Trust and another (AP) v H (AP) and another (AP) [2006] UKHL 36

Parents' appeal against decision to dispense with their consent to a freeing order is dismissed.

This case concerned a child, N, of 4 years of age born to parents H and R. H had for some time been an alcoholic and suffered serious assaults by R. H had other children who were extremely disturbed. Upon N's birth she was made subject to an interim care order and admitted into foster care. She was returned to her parents during which time H attended Alcoholics Anonymous and R went to anger management courses. After 10 months H relapsed and a care order was made in relation to all the children. The Trust's permanency panel recommended that N be adopted. However her parents refused to agree to adoption. The Trust accordingly brought the present application under article 18 of the Adoption (Northern Ireland) Order 1987 (SI 1987/2203) (NI 22) seeking an order from the court declaring the child free for adoption. Prospective adopters had not been identified and the issue of post-adoption contact was unresolved. The parents' objections were directed largely against adoption in principle as H had remained abstinent since 2003, her underlying personality disorder had been identified and could now be addressed and there had been no domestic violence over the same period.

The Judge made a freeing order being satisfied that the parents were withholding their consent unreasonably. He came to the conclusion that the only way to safeguard and promote N's welfare was to provide her with a home through adoption. He rejected the parents' objections to adoption on the basis that the risk of history repeating itself was overwhelming. He was satisfied that the parents were withholding their consent unreasonably as the child desperately needed to move on and re-establish permanent attachments and her mother was incapable of repairing herself. At that hearing, whilst he declined to consider the question of post-adoption contact, he stated that if at all possible N should have the benefit of continued contact with both parents in accordance with the expert's view. However he was satisfied that the need for adoption was so pressing that whilst it would be preferable that some measure of post adoption contact should be established, adoption must proceed even if this could not be achieved.

The Court of Appeal was of the opinion that it was a finely balanced judgment but the Judge's decision should nevertheless stand. By the time the petition to the House came before the Appeal Committee the Trust had found adopters who were willing in principle to allow post-separation contact. Leave to appeal was granted on the understanding that the placement could proceed before determination of the appeal. N was subsequently placed with the prospective adopters.

The central issue before the House was whether the Judge could properly make a freeing order on the basis that the parents' agreement was unreasonably being withheld when they did not yet know if post-adoption contact would be available.

The parents argued that:

i) the Judge could not correctly hold that the withholding of agreement was unreasonable when it was not known whether post-adoption contact could be arranged;
ii) the Judge had strayed outside his proper function in determining whether the withholding was unreasonable in that he had substituted his own view about the attitude which was reasonable rather than seeking to ascertain whether parental veto came within the band of possible reasonable decisions.

Held, dismissing the appeal (Baroness Hale dissenting), that the Judge's decision was not plainly wrong.

Lord Carswell, who gave the lead opinion, stated that when determining whether to dispense with a parent's agreement to adoption the court had to apply an objective standard of reasonableness, looking at the circumstances of the actual parent, but supposing this person to be endowed with a mind and temperament capable of making reasonable decisions. The Judge had taken into account all the circumstances of the case and applied an objective test in the case of each parent. He was wary not to substitute his own view for that of the reasonable parent. Lord Carswell did not feel that the Judge had failed to observe his own cautionary reminder not to substitute his own view for that of the parents. There was considerable evidence of the risks that H might relapse and of the unhappy consequences, which that would have for N if she were living with her. It was a matter of judgment whether these circumstances were such that the hypothetical reasonable parents would give their agreement to adoption.

Lord Carswell emphasised that the availability of post-adoption contact is a relevant factor to be taken into account in deciding whether to dispense with the parents' agreement and make a freeing order and the necessity to ascertain what and how much contact can be arranged will vary from case to case. However evidence on that topic could not be regarded as a condition which is in law a sine qua non requiring to be satisfied before the judge can proceed. It is for the Judge to have regard to the availability of contact in coming to his decision.

The House rejected the parents' contention that the Trust had breached their article 8 rights. Lord Carswell considered the Trust's response proportionate in the pursuit of the legitimate aim of protecting the welfare and interests of the child.

Finally Lord Carswell reiterated the Judge's concerns that whilst the benefit of continued contact appears likely to be fulfilled, the parents should do nothing to undermine the success of adoption as it is essential for the future well-being of N.

Baroness Hale, who gave the dissenting judgment, considered the Judge had placed emphasis on an irrelevant factor and did not consider a relevant factor, namely that the parents could frustrate an adoption by behaving so badly that no-one would agree to post-adoption contact even though the parents had not sought to use their contact to undermine their daughter's current placement. That enabled the decision to be looked at again.

Digest prepared by Lynsey Cade-Davies, 29 Bedford Row

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