Abstract
Adoption Of An 18-Year-Old
Re N (Adoption – Surrogacy)
The Family Court at the RCJ Theis J
29 February 2024 [2024] EWFC 41
N is an 18-year-old who was born as a result of a surrogacy arrangement between Mr and Mrs J and Mr and Mrs P. His genetic parents are Mr J and Mrs P. As Mr and Mrs P were married at the time of N’s pregnancy and birth, they are N’s legal parents. The case has an extraordinary and complex history based on Mrs P’s apparent compulsion to have more and more children. She was turned down for fertility treatment on social and welfare grounds, and her husband’s vasectomy reversal was unsuccessful, so she put herself forward as a surrogate mother. N was the second child that she had conceived through this route, then told the commissioning parents that she had miscarried. Mr and Mrs J had discovered this deception and applied for a residence order when N was 10 days old. An order was eventually made, an appeal dismissed and N moved to live with Mr and Mrs J when he was 18 months old. The residence order came to an end when N was 16, and Mr and Mrs J applied for an adoption order.
Mr and Mrs J were unable to apply for a parental order in respect of N, as is usual in surrogacy cases, because Mr and Mrs P did not consent and there is no provision in the Human Fertility and Embryology Act to dispense with consent. In adoption, parental consent can be dispensed with if the child’s welfare requires it. Mr and Mrs J and N argued that N’s welfare did require adoption, notwithstanding that he had now turned 18. N was able to give evidence himself; he described his feelings of disconnect between feeling a member of the J family but his legal identity being a P. Mr and Mrs P objected to the severing of N’s legal relationship with them and with his several half-siblings and wider family.
The court recognised that N had an established social family life with his genetic father and Mrs J that deserved respect. Adoption is the only order that would give legal effect to that relationship in adulthood, and an order was made.
While the circumstances of this case are unique, the situation that prompted the application for an adoption order is not. There are many children growing up in special guardianship situations, some from a very young age. They will share N’s experience of reaching adulthood and being legally disconnected from their social family. Their only recognised legal relationship will be with parents from whom they have had to be removed and with whom they may have a difficult or non-existent relationship. The need to be part of a loving family and to have that relationship recognised in law is not something that a young child can articulate when decisions are being made about whether an adoption or special guardianship order should be made, but N was able to speak for himself. Perhaps he speaks for others who might, in the long term, benefit from adoption rather than special guardianship even if placed in kinship care arrangements.
Adoption For Part Of A Sibling Group
Re H and J (Placement Orders)
Court of Appeal (Civil) Baker, Green & Whipple JJ
2 May 2024 [2024] EWCA Civ 429
H and J were brothers aged four and five. They were removed into care with their three older half-siblings, and the plan for all five was placement away from their mother’s care. The local authority applied for care orders for all five children, and placement orders in respect of H and J only. A sibling assessment was carried out which found that the effect of adoption of the boys would be ‘devastating’ for the older children, but expressed the hope that adopters could be found who would support direct contact between the siblings. The judge at first instance found that the boys’ need for a secure, permanent family outweighed the importance of the ongoing sibling relationship; that the only alternative was long-term foster care, which would not meet the children’s needs; and that nothing else but adoption would do. The mother appealed, saying that the judge had not carried out her balancing exercise fairly and that the placement orders should not have been made. She also suggested that the recital providing for the local authority to time-limit the search for adopters amounted to an unlawful condition on the placement orders.
Held
The court found that the judge had carried out a careful and thorough analysis as required by Re B-S and had focused on the sibling relationship. She had found that the permanence and security of adoption outweighed the risks of harm in severing the legal relationship between the siblings, and the court had been given no reason to interfere with that assessment. The court were referred to recent cases where the Court of Appeal had upheld first instance refusals of placement order because of a perceived need to maintain sibling relationships. Re T and R (Refusal of Placement Order) [2021] EWCA Civ 71 and Re N (Refusal of Placement Order) [2023] EWCA Civ 364 are cited in the judgement, but Baker J points out that these cases do not establish a general rule and that each case must be considered on its facts.
In respect of the time-limited search for prospective adopters, the local authority had agreed to this suggestion and had amended the care plan to reflect this and to prioritise adopters who could support sibling contact. There was no power to include a condition in a placement order and the recitals simply noted the agreed amendments to the care plan.
Comment
This judgement does not lay down any new principles, but it is a helpful reminder that the earlier cases ruling out adoption for part of a sibling group did not establish a general rule either. Anecdotally, the number of reported cases where placement orders have been refused because of a sibling relationship have had a real impact on decision-making for courts and local authorities. Hopefully this case will go some way to redressing the balance.
Baker J also noted that the judgement referred to the parents’ consent being withheld unreasonably and pointed out that this is no longer the test for dispensing with parental consent. This slip was corrected in the judgement, but it is surprising how often this language, now nearly 20 years out of date, is still used by judges and practitioners.
Which Welfare Checklist To Use?
Re J (Care Plan for Adoption)
Court of Appeal (Civil) Lawson, Baker & Andres JJ
22 March 2024 [2024] EWCA Civ 265
J was the youngest of five children, born in July 2023 during care proceedings for his older siblings. An application for a care order was issued and consolidated with those proceedings, and it became clear that the parents were not going to be able to care for any of the children. A final hearing was listed and the care plans were long-term fostering for the older four children, and placement for adoption for the baby, J. Although the local authority had made plans for J’s adoption, they were unable to issue their application for a placement order in time for the final hearing due to the lack of J’s birth certificate. The judge held the final hearing, refusing the mother’s application for an adjournment, and gave her judgement, considering the welfare checklist in s.1 of the Children Act 1989. She made final care orders in respect of all five children, endorsing the local authority plan for J’s placement outside his family and listing a date for the hearing of the anticipated placement order application. The mother appealed.
Held
The Court of Appeal agreed that even though there was no placement order filed, the local authority care plan was one of adoption, so the judge was ‘coming to a decision relating to the adoption of a child’. In those circumstances, even though there was no application under the Adoption and Children Act 2002 before the court, she was required to apply the welfare checklist from that Act. The judge had made it very clear that she was applying only the Children Act welfare checklist and planned to address the ‘enhanced’ checklist from the 2002 Act when dealing with the placement order application at a later date. The court held that it was ‘unfair to the child and wrong for a care order to be made on the basis of a care plan for adoption without subjecting the plan to the rigorous analysis required by statute and case law’.
Abuse Of Special Guardianship Orders
AB v XX & Anor (Special Guardianship Orders)
Family Court at Birmingham Lieven J
8 October 2023 [2023] EWFC 287
A maternal uncle made an application for leave to apply for special guardianship orders in respect of two children aged six and eight. His reason for applying was that the children’s mother worked and was sometimes unable to pick them up from school. He wanted an order to allow him to collect the children and care for them when necessary. The children would remain living with the mother. Both parents supported the application.
The judge refused leave – special guardianship is a serious permanence order that is not needed in this situation. It would be a disproportionate use of court and local authority resources to allow this application. The judge spoke to the mother and uncle and established that the real reason for the application is a belief that having a special guardianship order in respect of children in the UK would help the uncle’s immigration position, which would be an abuse of the special guardianship provisions.
The judge ordered that her judgement be published to show the appropriate approach to such applications, having been told that there have been ‘a number of similar applications’ to the Birmingham court.
These notes were prepared by