In this adoption application, the parent and step-parent of a child applied to the court to adopt a mother’s two children (by different fathers).  The trial judge refused application so the father appealed.

Re P (a child) (adoption: adoption by step-parent, Court of Appeal, Civil Division, 15 August 2014

Adoption – Application – Parent and step-parent of child – The applicant step-father applied to the court to adopt mother’s two children – Each child having different father – Trial judge refusing application and father appealing – Whether judge falling into substantial error – Whether judge correct in  evaluation of  balance of family rights – Whether judge misinterpreting statutory regime – Adoption and Children Act 2002 – European Convention on Human Rights, art 8.

There were two children the subjects of the instant hearing. A boy, D, born in 2000  and his half-sister, A, born in 2002. The children’s mother was a Polish national who had come to the United Kingdom in 2007 together with the two children. The children had different fathers. Both fathers were Polish. D’s father was named as BZ on his birth certificate. The mother and BZ had never married. A’s father was named as MP on her birth certificate. The children’s mother was married to MP in 2002, but they separated in 2004 and were divorced in 2005. D’s father had had little or no contact with his son since 2002 when D was aged two years. D’s father did have parental responsibility for D, and A last had contact with her father in 2005, which was nine years ago when she was aged three years. Although A’s father did have parental responsibility for A, he had taken absolutely no step whatsoever to assert or discharge that responsibility for the past nine years. There was no indication that A’s father intended to take any active step in his role as one of A’s parents during the remainder of her minority. The separation between the children and their father was consolidated, at least in geographical terms, by the Polish court’s approval of the mother’s permanent removal to the United Kingdom in 2007, which was seven years ago. The applicant had been in a close family relationship with the mother and the two children since 2007. They had established strong ‘de facto’ family ties in a settled family unit during that period. The children, and in particular A, had a clear and strong wish to be adopted by  the applicant. The applicant, who was not married to the children’s mother applied to adopt A and D with the full support of the mother. The case fell to be considered entirely within the compass of ‘the first condition’ in s 47(2) of the Adoption and Children Act 2002, namely that, at the time of consideration of the adoption application, the court had to be satisfied that each parent or guardian of the child either consented to the making of the adoption order, or that that individual’s consent should be dispensed with. In determining whether or not to dispense with parental consent, the child’s welfare throughout his or her lifetime had to be the court’s paramount consideration ( s 1 of the 2002 Act) and the court was to approach the issue in the manner described by the Court of Appeal in Re (Placement Orders: Parental Consent)[2008] 2 FLR 625. The trial judge dismissed the application. The applicant appealed.

The issues were, inter alia: (i) whether the judge had been correct in his interpretation of ‘requires’ in s 52(1)(b) of the 2002 Act when he considered that the ‘hurdle’ that was established by the word ‘requires’ was of exactly the same height in every case; and (ii) whether considering that the deprivation of a birth parent of parental responsibility was the most significant interference possible with rights under art 8 of the European Convention on Human Rights, had been correct. Consideration was given to Söderbäck v Sweden[1999] 1 FLR 250 (Söderbäck).

The appeal would be allowed.

Where an adoption application was made by a step-parent, the approach in Söderbäck should be applied according to the facts of each case. There was a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents and a step-parent adoption where, by definition, the child was remaining in the care of one or other of his parents. Factors which were likely to reduce the degree of interference with the art 8 rights of the child and the non-consenting parent [’Parent B’], and thereby make it more likely that adoption was a proportionate measure were; (i) where parent B had not had the care of the child or otherwise asserted his or her responsibility for the child; (ii) where parent B had had only infrequent or no contact with the child; (iii) where there was a particularly well established family unit in the home of the parent and step-parent in which ‘de facto’ family ties had existed for a significant period. In the event of parent B being actively opposed to a step-parent adoption, practical arrangements should be dealt with by private law orders. The making of an adoption order was primarily, if not entirely, concerned with the legal status of the relationships between the child, his natural parent(s) and the adopter(s), rather than practical arrangements. There was a need to be aware of the motives, emotions and possible unrealistic assumptions about any new family. The approach of the domestic case law sat easily alongside that of the case of Söderbäck (see [48]-[50], [70, [72] of the judgment).

On the facts, it was hard to distinguish the case from that of Söderbäck but, in any event, in the instant application the detriment, in art 8 terms, to each of the two children and their fathers of extinguishing their respective legal relationships was modest. The interference with art 8 family life rights in the present case was of an altogether lower level of intervention to that which was typically involved where the proposed adoption was by non-family members with all familial relationships being extinguished against the will of parents with whom the children had a real and active relationship. Despite the obvious care that the judge brought to bear upon his decision, he had fallen into substantial error in his evaluation of the balance of rights under art 8 of the Convention and, hence, the overall proportionality of making adoption orders. In addition the judge appeared to have misinterpreted the statutory regime and the requirements that it placed upon him (see [52], [53] of the judgment).

The appeal was therefore allowed and adoption orders were made thereby establishing the applicant as the adoptive father of D and A (see [69] of the judgment).

Soderback v Sweden (Application 24484/97) [1999] 1 FLR 250 applied; P (children) (adoption: parental consent), Re [2008] All ER (D) 265 (May) considered; B (a child) (care order: proportionality: criterion for review), Re [2013] 3 All ER 929 considered.

Robert Hornby for the applicant.

Tara Psaila   Barrister.

The applicant de-facto step-father, who was in a close personal relationship with the mother, applied to the court to adopt her two children. Each child had a different father. The trial judge refused the application and the father appealed. The Court of Appeal (Civil Division) allowed the appeal and held that the judge had fallen into substantial error in his evaluation of the balance of rights under art 8 of the European Convention on Human Rights and, hence, the overall proportionality of making adoption orders. In addition the judge appeared to have misinterpreted the statutory regime under the Adoption and Children Act 2002 and the requirements that it had placed upon him.