Abstract
LC and RC V B McK
The High Court, Belfast
Maguire J
5 November 2014
This was an appeal against a decision made in a Family Care Centre in March 2014. The two appellants were the maternal grandparents of C (aged 6) and B (aged 5), the children of F, who died in 2011, and the respondent, B McK. For an extensive period the children had been in the care of the Trust which was represented in these proceedings. In 2011 the children were discharged from care and a residence order was made, vesting parental responsibility in the appellants, which they shared with the respondent. The proceedings before the Family Court judge had involved: (a) an application by the appellants to adopt the children; and (b) an application by the respondent for enhanced contact with the children. Both applications had been dismissed. The present proceedings were solely concerned with an appeal against the adoption application. Throughout the proceedings the children were represented by a guardian ad litem.
Background
Historically, neither parent had been fit to look after the children. The mother came from a troubled background, had an emotionally disturbed childhood and had met the respondent when she was aged 18 in 2006. The father also had a chequered past: married three times, the last time being to the mother of the children; together with problems of law breaking, domestic violence and alcohol abuse. He had one child in the course of his first marriage and five in the second, all of whom had been taken into care.
From shortly after the birth of C and B it was clear that neither parent was in a position to look after them and they were taken into care with a view to non-kinship adoption. However, before this plan had been implemented the children’s maternal grandparents offered themselves as potential kinship carers, the children were placed with them and they subsequently sought an adoption order.
The law
Maguire J noted that both Articles 9 (welfare of the child) and 16 (unreasonableness as grounds for dispensing with parental agreement) of the Adoption (Northern Ireland) Order 1987 were of importance in respect of the appeal and fully stated both. It was clear that before an adoption order could be made the court would have to be satisfied that the respondent was withholding his consent unreasonably. The judge drew attention to the substantial volume of jurisprudence that had grown up in respect of the question of when a parent is withholding agreement to adoption unreasonably.
1
In particular he referred to TM and RM (Freeing Order)
2
in which Morgan LCJ had noted that the leading authorities on the test the court should apply are Re W (An Infant), Re C (A Minor) and Down and Lisburn Trust v H and R, which expressly approved the test proposed by Lord Steyn and Lord Hoffmann in Re C, the effect of which could be summarised: ‘… by the judge asking himself whether, having regard to the evidence on applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify over-riding the views and interests of the objecting parent or parents.
The Convention
Maguire J explained the increasing importance of Article 8 of the European Convention on Human Rights which confers a right to respect for family life both from the perspective of the parent and the child. 3 He referred to the cautionary warnings of their lordships in Re B (A Child), 4 noting that ‘in short, there can be no serious doubt that in approaching the issue of adoption of a child by a stranger the intention of the Supreme Court was to set a high threshold which had to be met before an adoption order could be made’, a view subsequently endorsed in a line of Court of Appeal decisions. 5 He then turned to consider Soderbank v Sweden 6 in which the application by a natural mother and stepfather was resisted by the natural father, who was concerned that he would lose parental responsibility if the adoption went ahead. The court then considered that such a case could be distinguished from the sort of case where the child was being adopted by strangers, as the requirements of proportionality may be more easily satisfied, and this distinction had since been accepted by the Court of Appeal in England and Wales in the recent case of Re D. 7
The position of the parties
The grandparents
They felt that an adoption order in respect of the children was required in this case in order to create a sense of permanence for the children in respect of their status and placement. They were clearly of the view that the existing residence order in their favour was insufficient in itself to create and maintain stability for the children. In particular, the fact that the respondent also held parental responsibility in respect of the children was identified by the appellants as creating a potential for instability, leading to conflict, as ongoing consultation with the father in respect of everyday matters would be necessary.
The respondent
The father objected to the making of the adoption order because he feared that if made it would erase or dilute his involvement with the children to an unacceptable degree. He feared that the children’s identification of him as their daddy would cease. While he accepted that the children would have their home for life with their grandparents, he argued that it was in their best interests to continue to have a meaningful relationship with him. He denied that he would in any way abuse his parental responsibility for the children. Maguire J pointed out that the father’s concern about dilution of his role could not be said to be fanciful as the Trust had recommended that if an adoption order was made in favour of the grandparents, there should be a reduction in the father’s level of contact to some two direct and two indirect contacts per annum, the former being supervised.
The Trust
The Trust’s position was that an adoption order in favour of the grandparents would be in the children’s best interest. In their view, if an adoption order was made there should be a reduction in the father’s contact with the children.
The guardian
The guardian supported the application made by the grandparents but had not met or discussed the application with the father prior to filing her report. Nor had she been in a position to assess the undertakings later give to the court by the respondent.
The undertakings
In the course of the Family Court proceedings the respondent provided certain undertakings whereby he agreed not to interfere with or undermine the applicants’ decisions regarding certain matters -- including the children’s schooling, religious instruction and well-being, medical treatment, health care, holidays abroad; and not to bring or threaten to bring an application before any court for a residence order or a contact order, nor to intimidate, pester, harass or annoy the applicants or to incite or instruct any other person to do so; and not to send any items, including cards and presents, directly to the applicants’ home for the attention of the children. Further, he accepted that ‘all day-to-day decisions relating to the children’s care are entirely a matter for the applicants to take without reference to me.’
The Family Court order and judgment
The Family Court judge had given substantial weight to Article 8 of the Convention. He had noted that the residence order in favour of the appellants was working well, that the appellants were providing a secure and stable environment for the children, and that a contact order permitted contact every three months. He had been of the opinion that the making of an adoption order in favour of the appellants was a very serious step to take since it would remove the respondent’s parental responsibility. Maguire J commented that: ‘The test which the judge applied to the grandparents’ application was that he should only make an adoption order if it was truly necessary. In his view, the threshold which had to be overcome by the appellants was a high one. In so saying it appears clear that the judge was relying on the recent decision of the Supreme Court in Re B supra.’
Applying a test of necessity to the facts of the case the Family Court judge had not been satisfied that an adoption order should be made and had refused the appellants’ application, citing concerns about changing the existing position and about whether there would be any particular benefit for the children if a change was made.
Evaluation
Maguire J noted that while the case was not a stepfather adoption in its classical form, it shared certain of its characteristics. In particular, the proposed adopters were family members, not strangers, who had been caring for the children for a substantial period of time. He was of the view that in terms of how to approach the issue of proportionality the case was closer to the Soderbank and Re D line of authority than the Re B (A Child) cases: ‘In effect there appears to be a scale of possible approaches available running from at one end that which applies to pure stranger adoptions, where a high proportionality threshold for adoption has to be passed, to, at the other end, step-parent adoptions, where the requirements of proportionality are less strict for the reasons explained by McFarlane LJ in Re D.’
It seemed to Maguire J that the Family Court judge may have inadvertently approached the test of proportionality believing he had to apply the Re B (A Child) standard. It was therefore necessary for him to ask and answer the question whether, applying a test akin to that found in Re D, the decision of the Family Court judge was wrong.
In that context, the first question was whether the proposed adoption would be in the best interests of the children. Maguire J noted that the Family Court judge had answered that question in the negative and he agreed with that view. It did not seem to him that the respondent was in any serious way challenging the continuing role of the appellants as the principal carers of the children and had stated in his evidence that he had no cause for concern in respect of the parenting the grandparents were providing. In those circumstances it was difficult for the court to see the advantage of adoption for the children.
The appellants’ counter argument was that they needed adoption orders so that they did not have to share parental responsibility with the respondent. Neither the Family Court judge nor Maguire J were convinced. The latter added that the respondent was C and B’s father with whom they enjoyed a relationship which was not to be lightly discarded as ‘it maintained a sense of identity for them’ and allowed them to keep in touch with their only extant parent. If adoption orders were made it was likely that the respondent’s relationship with the children would be detrimentally affected: he would no longer have any rights as a parent; and his contact with the children would be reduced. Maguire J endorsed the opinion of the Family Court judge that there was no evidence that the respondent had meddled with the appellants’ care of the children and, therefore, the appellants had failed to show that the making of adoption orders was in the best interests of the children. For the avoidance of doubt, Maguire J added: ‘… in the absence of evidence demonstrating that adoption is in the best interests of the children such a step could hardly be viewed as being a proportionate interference in respect of the Article 8 rights of the respondent or the children, even in the context of a kinship adoption.’
The unavoidable conclusion was that adoption orders would not constitute a proportionate response to the present situation. Further, it seemed to Maguire J that much the same could be said about the Article 16 issue. Where adoption was viewed as not being in the children’s best interests, there was no reason to believe that a parent, such as the respondent, could be viewed as acting unreasonably in refusing consent to a step which could reasonably be viewed as contrary to the children’s best interests.
Held
Appeal dismissed
Comment
This is an important judgment that once again demonstrates a judicial concern to align adoption practice in Northern Ireland with the principles governing corresponding practice in England: as expressed by the judiciary in the latter jurisdiction and in the ECtHR. In particular, the interpretation of the grounds for adoption as being on a continuum -- running from one extreme where the public interest is clearly manifested by the fact that the children concerned are the subject of care orders to the other extreme where the children are and have been wholly the responsibility of a relative -- is helpful. Clearly, adoption is inappropriate in circumstances where, as in this case, there is no good reason for breaking the meaningful links between parent and child that allow the latter to retain an authentic sense of personal identity.