P (A Child)

This appeal concerns a step-parent adoption. It is some years since the Court of Appeal considered the approach to step-parent adoption applications. In the light of the recent flow of cases from the Supreme Court and the Court of Appeal relating to non-consensual adoption in the context of public law child protection proceedings (the two principal decisions are: Re B (Care Proceedings: Appeal) [2013] UKSC 33; [2013] 2 FLR 1075 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146; [2014] 1 FLR 1035) the present appeal presents a timely opportunity to consider how an adoption application brought by a child’s step-parent is to be approached.

The appeal arises from a determination by His Honour Judge Gareth Jones, sitting in Wrexham County Court, on 29^th January 2014 in which the judge dismissed a step-father’s application to adopt his two step-children. Permission to appeal was granted by Ryder LJ and we heard the appeal on 26^th June 2014. At the conclusion of that hearing we announced our decision, which was to allow the appeal and to make the adoption orders. In view of the wider issues raised, we indicated that our judgments would be handed down in written form at a later date.

The two children are, firstly, a boy, D, born 13^th May 2000 and therefore now aged 14 years and his half-sister, a girl, A, born 26^th June 2002 who therefore had her twelfth birthday on the day of the appeal hearing. The children’s mother is a Polish national who came to the United Kingdom in 2007 together with the two children. The children have different fathers. Both fathers are Polish. D’s father is named as BZ on his birth certificate. The mother and BZ were never married. A’s father is 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 has apparently had little or no contact with his son since his separation from the children’s mother in or around 2002. So far as A is concerned, the last contact with her father occurred some time in 2005; that is nine years ago when A will have been around the age of 3 years.

In 2007 the mother was apparently given permission by the court in Poland to relocate with the children permanently to the UK.

The applicant for these adoption orders is Mr TMI. He is a British national. Mr TMI formed a relationship with the children’s mother soon after her arrival in England in 2007. Since that time, some seven years ago, the couple have lived together with the children as a settled family unit.

The adoption application by Mr TMI was issued on 31^st January 2013. It is made with the full support and consent of the children’s mother.

In the course of his judgment the judge necessarily had to consider whether or not either of the two fathers had parental responsibility. He was hampered by the fact that there was no expert evidence and the only source of information as to the state of Polish law on this topic came from the mother, who is not a qualified lawyer. The judge held that, plainly, A’s father, having been married to the mother, had parental responsibility for A.

On the basis that, in respect of a birth registered in 2000, under English law, D’s father would not share parental responsibility for D in the absence of a court order, the judge assumed that the situation would be similar in Poland and held that D’s father did not have parental responsibility.

In hearing this appeal, we are in the same position as the learned judge and I too approach this matter on the basis that D’s father does not have parental responsibility whereas A’s father does.

The statutory scheme contained within Adoption and Children Act 2002 [“ACA 2002”] makes no distinction between a step-parent adoption order and any other adoption order. The statutory scheme does, however, establish two separate routes to adoption. The first route, which is the conventional model for adoption proceedings, involves the court considering the question of parental consent at the time that it is determining whether or not to make the adoption order. This first route is given the label “the first condition” in ACA 2002, s 47.

The second route to adoption, which was first introduced by the 2002 Act, applies only to children who are, or have been, subject to child protection proceedings under Part 4 of the Children Act 1989 [“CA 1989”]. This second route, referred to as “the second condition” in ACA s 47, only applies to a child who has been placed for adoption by an adoption agency, either with the consent of each parent or guardian, or under the terms of a placement for adoption order made under ACA 2002, s 21. The relevant statutory provisions are as follows. ACA s 49 proscribes the categories of applicant:

“(1)

An application for an adoption order may be made by—

(a)

a couple, or

(b)

one person,

but only if it is made under section 50 or 51 and one of the following conditions is met.”

The relevant provisions of ACA 2002, ss 50 and 51 are as follows:

“50.

Adoption by couple

(1)

An adoption order may be made on the application of a couple where both of them have attained the age of 21 years.

(2)

An adoption order may be made on the application of a couple where—

(a)

one of the couple is the mother or the father of the person to be adopted and has attained the age of 18 years, and

(b)

the other has attained the age of 21 years.

51.

Adoption by one person

(1)

An adoption order may be made on the application of one person who has attained the age of 21 years and is not married.

(2)

An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent of the person to be adopted…”

In the present case Mr TMI, who is the sole applicant for adoption, is not married to the children’s mother and it is therefore necessary to turn to the definition of “the partner of a parent of the person to be adopted” in section 51(2). ACA 2002, s 144 (7) states:

“For the purposes of this Act, a person is the partner of a child’s parent if the person and the parent are a couple but the person is not the child’s parent.”

Section 144 (4) states:

“In this Act, a couple means—

I have already described the two possible routes to adoption in ACA 2002, s 47. The relevant parts of s 47 are as follows:

“(1)

An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc. consent).

(2)

The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—

(a)

that the parent or guardian consents to the making of the adoption order,

(b)

that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or

(c)

that the parent’s or guardian’s consent should be dispensed with.

(3)

A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court’s leave.

(4)

The second condition is that—

(a)

the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,

(b)

either—

(i)

the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or

(ii)

the child was placed for adoption under a placement order, and

(c)

no parent or guardian opposes the making of the adoption order.

(5)

A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave.”

The third condition referred in s 47(1) is set out in s 47(6) and only applies to Scotland and Northern Ireland.

The present case, which does not arise in any respect out of public law child protection proceedings, falls to be considered entirely within the compass of “the first condition” in s 47(2). In short, at the time of consideration of the adoption application, the court must be satisfied that each parent or guardian of the child either consents to the making of the adoption order, or that individual’s consent should be dispensed with. In this context a “parent” means “a parent having parental responsibility” [ACA 2002, s 52(6)].

In the present case A’s father is “a parent with parental responsibility” and, by virtue of ACA 2002, s 47(2), an adoption order cannot be made with respect to A unless the court is satisfied that her father consents to the making of the order, or that his consent should be dispensed with. ACA 2002, s 52(1) makes provision for the court to dispense with parental consent in the following circumstances:

“ (1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that—

(a)

the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or

(b)

the welfare of the child requires the consent to be dispensed with.”

In determining whether or not to dispense with parental consent, the child’s welfare throughout his or her lifetime must be the court’s paramount consideration (ACA 2002, s 1) and the court will approach the issue in the manner described by the Court of Appeal in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625.

Prior to the legislative changes brought about under the ACA 2002 the options open to a step-parent who wished to share parental responsibility with his or her partner in the care of children who had become part of their joint family unit were limited. It was possible for the step-parent to be granted a “residence order” under CA 1989, s 8; under the law prior to April 2014, the holder of such an order gained parental responsibility for the child while the residence order remained in force (CA 1989, s 12 (2) – now repealed). Prior to the ACA 2002 reforms it was not possible for a step-parent to be granted a free standing order for parental responsibility. The only other option, therefore, was adoption. A further difficulty under the pre ACA 2002 law was that any such adoption had to be a joint adoption by the step-parent together with their spouse, who was one of the child’s natural parents (Adoption Act l976, ss 14 and 15). This had the unattractive consequence of the natural parent becoming the adoptive parent of their own offspring.

The ACA 2002 made a number of changes to the statutory regime and introduced greater flexibility in the options available to afford parental responsibility to a step-parent. Firstly, CA l989, s 4A was inserted into the l989 Act. The key provision, which is s 4A (1), is as follows:

“Where a child’s parent (‘parent A’) who has parental responsibility for the child is married to, or a civil partner of, a person who is not the child’s parent (‘the step-parent’):

(a)

parent A or, if the other parent of the child also has parental responsibility for the child, both parents may by agreement with the step-parent provide for the step-parent to have parental responsibility for the child; or

(b)

the court may, on the application of the step-parent, order that the step-parent shall have parental responsibility for the child.’

Secondly, as has already been described, it is now possible for a step-parent to apply to adopt his or her partner’s child as a sole applicant (ACA 2002, s 51(2)). The effect of such an adoption is spelled out in ACA 2002, s 67:

“67 Status conferred by adoption

(1)

An adopted person is to be treated in law as if born as the child of the adopters or adopter.

(2)

An adopted person is the legitimate child of the adopters or adopter and, if adopted by—

(a)

couple, or

(b)

one of a couple under section 51(2),

is to be treated as the child of the relationship of the couple in question.

(3)

An adopted person—

(a)

if adopted by one of a couple under section 51(2), is to be treated in law as not being the child of any person other than the adopter and the other one of the couple, and

(b)

…

but this subsection does not affect any reference in this Act to a person’s natural parent or to any other natural relationship.”

In addition by ACA 2002, s 46(2) the making of an adoption order operates to extinguish the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the adoption order. But, by s 46(3)(b), in a step-parent adoption such as the present, under s 51(2) the adoption order does not affect the parental responsibility of the parent who is the step-parent’s partner.

In a single applicant step-parent adoption case under the ACA 2002 regime, such as the present case, the result of these various provisions is that if a step-parent adoption order is made:

At the time of the hearing before HHJ Jones (29^th January 2014) the court retained jurisdiction to make a residence order under CA 1989, s 8. That facility has now been repealed and replaced with a power to grant a “child arrangements order” under the amendments made to s 8 by Children and Families Act 2014. Under the similarly amended provision in CA l989, s 12(2) where the court makes a child arrangements order and a person who is not a parent or guardian of the child concerned is named in the order as a person with whom the child is to live, that person will have parental responsibility for the child while the order remains in force so far as providing for the child to live with that person. Consequently, it remains possible for a step-parent to be afforded parental responsibility by the making of a child arrangements order.

Finally, it is necessary to consider whether the making of a special guardianship order under CA 1989, s 14(A) is an option in a step-parent case. HHJ Jones (at paragraph 51 of his judgment) considered that it was. Technically the judge was correct. A special guardian can be any person over the age of 18, but “must not be a parent of the child in question” [CA 1989, s 14(A)(2)]. A step-parent, albeit that in certain circumstances he may require the leave of the court to do so, may apply to be a special guardian. However, I do not consider that such an option is likely to be appropriate where the step-parent is living with one of the child’s natural parents because the key consequence of making a special guardianship order is that the special guardian, during the life of the order, is “entitled to exercise parental responsibility to the exclusion of any other person with parental responsibility for the child (apart from another special guardian)” [s 14C(1)(b)]. Thus, as the natural parent who is his partner cannot also become a special guardian, a step-father who was a special guardian would thereby acquire a more dominant legal status in the child’s life than the natural mother.

Mr TMI issued his application for adoption orders with respect to D and A on 31^st January 2013. Family Procedure Rules 2010, r 14.3 makes provision as to the parties to an application for an adoption order. The rule makes it plain that, amongst others, “each parent who has parental responsibility for the child” (unless they have given notice that they do not want to be informed of any application for adoption under ACA 2002, s 20(4)(a)) will be a respondent. There is therefore a requirement for A’s father to be a respondent to the application.

A father without parental responsibility, such as D’s father in the present case, is not an automatic respondent to an adoption application. Under rule 14.3(3) the court may, at any time, direct that any person may be joined as a respondent to the proceedings, thus it is possible for a father without parental responsibility to be joined following an express direction to that effect. Contrary to the view apparently taken by HHJ Jones in the present case, there is no requirement within the rules to give notice of the application to a father without parental responsibility. Those to whom notice is given are listed in FPR 2010, PD 14A and that provision makes no reference to parents. Earlier case law (Re H; Re G (Consultation of Unmarried Fathers) [2001] 1 FLR 646) suggested that, as a matter of practice, a father without parental responsibility should be informed of the proceedings unless there are good reasons for holding that it is inappropriate to do so.

The judge’s judgment records the efforts that were made to achieve service of the proceedings upon the fathers of A and D. A translated copy of the application was sent to A’s father’s last known address, which was the home of the paternal grandmother. The papers were signed as having been received at that address on 16^th May 2013. This process did not however achieve any response either from A’s father or any person on his behalf. The judge, having made reference to alternative means of service that might have been deployed, held that Mr TMI had done the best that he could do to achieve service on A’s father.

On the assumption, which as I have indicated was erroneous, that the rules required notice of the application to be given D’s father, the judge heard evidence, which he accepted, from the children’s mother to the effect that she had absolutely no information as to his whereabouts, but believed that he may be somewhere in America.

Part 6 of the Family Procedure Rules 2010 establishes a regime for the service of documents in family proceedings. Chapter 4 of Part 6 makes provision for service outside the jurisdiction of England and Wales. In approaching this appeal, which on the information available is extremely unlikely to have resulted in a different outcome had either of these fathers chosen to take part, we did not descend to considering the detail of the rules regarding service. For the future, however, any applicant or court considering similar proceedings where a respondent resides outside the jurisdiction should have regard to the relevant provisions in FPR 2010, rr 6.40 to 6.48. In the present case service could have been achieved under r 6.44 (the Service Regulation applicable to EU countries) and/or r 6.45 (service through foreign governments, judicial authorities and British Consular authorities) and FPR 2010, PD6B.

In a full and carefully constructed judgment HHJ Jones, having rehearsed the factual and procedural background, moved on to describe the applicable legal provisions in the following terms:

“28.

The effect of an Adoption Order under Section 46 of the Adoption and Children Act 2002 is that it would confer parental responsibility upon the Applicant, but it would do more than that because it would extinguish the parental responsibility of a birth parent with parental responsibility. It would mean in effect that the children within the domestic law of England and Wales would be treated in law as if they were the natural children of the adopter, Mr TMI. The making of an Order would be accompanied (obviously) by a change in the children’s name, in particular the children’s surname which would denote the change in their legal status and it would be an Order which would not be easily set aside. By that I mean it would continue not only during the children’s minority but way beyond their minority into adulthood and for the remainder of their lives.

Then, after considering the welfare checklist contained in ACA 2002, s 1 and observing that both the applicant and the children's mother were agreed that no distinction should be made between the two children (on the basis that either both or neither of them should be adopted), the judge moved on to consider the impact of the recent case law. He drew a clear distinction between public law adoptions made following the intervention of a local authority, and private law adoptions, which typically involved a step-parent. In the context of public law adoption, the Supreme Court decision in Re B had emphasised that adoption is the last resort. Again, a distinction is drawn between such cases and a private law adoption; at paragraph 41 the judge said:

“41.

That, of course, is not the same situation as private law adoptions. Private law adoptions in general are provided in circumstances where very often the children do have some knowledge of their family of origin. That is particularly so in this case where the children are eleven and thirteen respectively and are somewhat older than children who are normally subject to Adoption Orders. They are aware of their origins in Poland, they are aware of the true circumstances of their paternity.

42.

It seems to me, therefore, that the underlying decision of the Supreme Court in the case of Re B that I have mentioned, means that I should view adoption as being an absolutely last resort, and only the most extreme option. Does it apply in precisely the same way in private law adoptions as it does in public law adoptions?

43.

These children will continue to live with their mother; there is no severance of the birth tie there. They have had only limited past contact with their birth father (in one instance) and no contact for a number of years with the second birth father (in the second instance). The adoption in this case is sought as a means to consolidate ties which already exist and I am reinforced by the decision of the European Court itself in the case of Soderback v Sweden [1999] 2FLR 250 which does provide some judicial support for a contention that different considerations should apply in the case of public law and private law adoptions.

44.

Therefore, whilst I accept that adoption always marks an interference with family life, it does not have precisely the same effect in private law adoptions as it would have in public law adoptions, and the particular circumstances of these two cases means that the complete severance of links with the birth family would not be achieved if the adoption applications were to be granted.

45.

That being said, it is right that I do consider (so far as the child’s welfare is concerned in one instance) whether the consent of the birth father should be dispensed with, and more generally the welfare of the children throughout their lives respectively.

46.

These are older children (as I have mentioned already). They are aware of their origins in Poland and of the true circumstances of their paternity. The application is sought as a means to consolidate ties which already exist, and these Orders will indeed provide stability and security for the two children concerned. As I have said already, they are not being adopted as infants and the traditional argument which favours adoption by way of the provision of security and stability does not apply in precisely the same way for children of eleven and thirteen as it would do if the children were two or three years old. They have lived with the applicant for six years, who has provided for them, and there will be no change in that outcome (I am told) whether the Orders are made or are not made. This is a family which views itself as a family and the making of the Orders themselves would not prejudice that position at all.”

The judge then reviewed the evidence of Mr TMI, during which the court had apparently canvassed the following alternative options to adoption:

At paragraph 52 the judge explained that he had raised these options with the applicant, not to interfere with how he chose to conduct his life, but in order to understand ‘why it was that he was pursuing perhaps the most significant interference by way of depriving a birth parent of parental responsibility in order to acquire parental responsibility for himself’.

In considering A’s welfare throughout her life the judge considered that the statute required the court to place itself ‘hypothetically in a situation where A is asked at the moment before her death whether it was a good idea for her to have been adopted by Mr TMI or not’. In that context the judge asked: ‘will she feel the same way about this application when she is thirty or forty, that I have deprived her birth father of his parental responsibility, extinguished it, and conferred it upon Mr TMI in a situation where that cannot be changed?’.

In addressing the various factors contained in the welfare checklist in ACA 2002, s 1(4) the judge recorded that A’s wishes were ‘very firm’ that she wanted the adoption order to be granted.

The judge set out his conclusions with respect to A in the following terms:

“62.

Am I able to say in this case that A’s welfare requires me to dispense with the birth father’s consent as an imperative consideration and that her welfare throughout her life means that I should make the Order today?

63.

That is quite a difficult hurdle to overcome. I have given it a considerable amount of anxious consideration, because I have read these papers on more than on occasion and I can see how important this decision is for Mr TMI and also for A’s mother. But I am constrained by the words of the statute, and I am afraid I am not satisfied that within the meaning of the statute that A’s welfare requires me to dispense with the consent of her birth father to the making of this Adoption Order. It is a significant intrusion into his right as a birth parent. I am not satisfied (because of the terms of the statute under Section 1 of the Adoption and Children Act 2002) that indeed A’s welfare throughout her life would be promoted by the making of this Order. Her family life will continue in much the same way without the Order being made and there are other ways in which Mr TMI can acquire parental responsibility. They may be viewed by him as being second-best methods, and I sympathise with him and I appreciate why he has now left Court because he is disappointed by the decision that I have reached.”

The case with respect to D did not involve consideration of dispensing with D’s fathers’ consent or removal of that gentleman’s parental responsibility. In reliance, however, on Mr TMI and the mother’s clear stipulation that both children should be dealt with in the same manner and because, as with A, the judge was in any event not satisfied that adoption was compatible with D’s welfare throughout his life, the adoption order in D’s case was also refused.

Before turning to the approach to step-parent adoptions in the light of recent developments in the case law relating to contested public law adoptions, it is necessary to refer to existing authority on step-parents, albeit that the cases are now of some antiquity.

In Re D (Adoption: Parent’s Consent) [1977] AC 602 the House of Lords gave consideration to a step-parent adoption application made by a mother and her new husband, which was opposed by the child’s father. Lord Wilberforce, at page 627, laid stress on three matters:

Dicta of the Court of Appeal (for example that of Bagnall J in Re B (Adoption by Parent) [1975] Fam 127 at page 146) endorsed the third of these points and indicated that, in the event of the other natural parent opposing a step-parent adoption, the court would strive to achieve an outcome by ordinary private law orders rather than adoption.

For a time, the approach taken in the 1970’s cases was enshrined in statute in s 14(3) of the Adoption Act 1976 which read

“(3)

If the married couple consist of a parent and step-parent of the child, the court shall dismiss the application if it considers the matter could be better dealt with under section 42 (Order for Custody, etc) of the Matrimonial Causes Act 1973.”

AA 1976, s 14(3) was, however, repealed by the Children Act 1989 when MCA 1973, s 42 was itself repealed and custody orders were replaced by orders under s 8 of the CA 1989. In Re PJ (Adoption: Practice on Appeal) [1998] 2 FLR 252, Thorpe LJ firmly rejected a submission that the repeal of s 14(3) represented the end of the leaning in the earlier case-law (to which I have referred) against step-parent adoption. Thorpe LJ considered that the repeal of s 14(3) was no more than an act of necessary tidying up by the statutory draftsman in the wake of the abolition of custody orders. Thorpe LJ went on to state:

“In my judgment cautionary dicta are still apt since applications for step-parent adoptions may be driven or complicated by motives and emotions derived from conflict within the triangle of adult relationships. They may also be buoyed up by quite unrealistic hopes and assumptions as to the quality of the marriage replacing that into which the children were born.”

In 1998 the issue of step-parent adoption was considered by the European Court of Human Rights in the case of Söderbäck v Sweden [1999] 1 FLR 250. This decision is plainly of significance. The case concerned a child born to parents who had never cohabited. The father’s contact with the girl had been very limited. In due course the mother’s husband, who had lived with the child from the age of 8 months, applied to adopt her in 1988 when she was aged 6 years. The court in Sweden granted the adoption order on the basis that to do so was in the child’s best interests, notwithstanding the father’s opposition and his wish to increase his contact with his daughter. The ECtHR, having held that ECHR, Art 8 was engaged, concluded that the making of an adoption order was not disproportionate in the light of the purpose of the adoption, which was to consolidate and formalise the child’s family ties and in the light of the father’s limited contact with her.

Under the process that then applied in the Strasbourg court, the case had been considered initially by the Commission which had taken a contrary view, holding that the adoption order was disproportionate. The Commission had based its reasoning on the ECtHR’s judgment given in 1996 in Johansen v Norway (1997) 23 EHRR 33 which was a child protection case involving the removal of a young baby from a mother who had longstanding social and emotional difficulties and who abused hard drugs. The Strasbourg court held that, whilst the taking of the child into public care may have been proportionate to the need to protect her, the further step (under Norwegian law) of removing the mother’s parental rights was of a permanent nature and could only be considered ‘necessary’ in the context of ECHR, Art 8 if supported by particularly strong reasons on the basis that ‘such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests’.

The ECtHR's judgment in Söderbäck v Sweden distinguished between cases such as Johansen, which concern the deprivation of a parent's rights in the context of compulsory and permanent placement of her child outside the family with a view to adoption, and a step-parent adoption. At paragraph 31 of the judgment in Söderbäck the Court explained the distinction:

“31.

The Court considers that the present case falls to be distinguished from the Johansen case in the following respects. While it is true that the adoption in the present case, like the contested measures in the Johansen case, had the legal effect of totally depriving the applicant of family life with his daughter, the context differs significantly. It does not concern the severance of links between a mother and a child taken into public care but, rather, of links between a natural father and a child who had been in the care of her mother since she was born. Nor does it concern a parent who had had custody of the child or who in any other capacity had assumed the care of the child.

Accordingly, in the Court's view, it is inappropriate in the present case to apply the approach employed in the Johansen judgment.

32.

The Court further observes that, during the period under consideration, the contacts between the applicant and the child were infrequent and limited in character and when the adoption was granted he had not seen her for quite some time ...

33.

Moreover, the child had been living with her mother since her birth and with her adoptive father since she was 8 months old. He had taken part in the care of M, who regarded him as her father. Thus, when the adoption was granted b the district court in December 1989, 'de facto' family ties had existed between the mother and the adoptive father for 5 1/2 years, until they married in January 1989, and between him and M for 6 1/2 years. The adoption consolidated and formalised those ties.

34.

.... Given the aims sought to be achieved by allowing the adoption to go ahead, it cannot be said that the adverse effects it had on the applicant's relations with the child were disproportionate.

35.

Accordingly, there has been no violation of Art 8 of the Convention in the present case.”

As will be apparent from the order that has been made allowing this appeal, I am afraid that I differ from the judge in my analysis of the legal context within which these decisions fell to be considered. Despite the fact that the judge made reference to the relevant statutory provisions and case law which are applicable to this application, his conclusions as to their impact on the facts of this case cannot stand.

In an adoption application the key to the approach both to evaluating the needs of a child’s welfare throughout his or her life and to dispensing with parental consent is proportionality. The strong statements made by the Justices of the Supreme Court in Re B and taken up by judges of the Court of Appeal in subsequent decisions to the effect that adoption will be justified only where ‘nothing else will do’ are made in the context of an adoption being imposed upon a family against the wishes of the child’s parents and where the adoption will totally remove the child from any future contact with, or legal relationship with, any of his natural relatives. Although the statutory provisions applicable to such an adoption (in particular ACA 2002, s 1 regarding welfare and s 52 regarding consent) apply in precisely the same terms to a step-parent adoption, the manner in which those provisions fall to be applied may differ and will depend upon the facts of each case and the judicial assessment of proportionality.

By way of example, in a child protection case where it is clear that rehabilitation to the parents is not compatible with their child’s welfare, the court may be faced with a choice between adoption by total strangers selected by the local authority acting as an adoption agency or adoption by other family members. There is a qualitative difference between these two options in terms of the degree to which the outcome will interfere with the ECHR, Art 8 rights to family life of the child and his parents; adoption by strangers being at the extreme end of the spectrum of interference and adoption by a family member being at a less extreme point on the scale. The former option is only justified when ‘nothing else will do’, whereas the latter option, which involves a lower degree of interference, may be more readily justified.

Where an adoption application is made by a step-parent, the approach of the ECtHR in Söderbäck v Sweden should be applied according to the facts of each case. In doing so the following central points from the judgment in Söderbäck are likely to be important: