J (Adoption: Appeal)

On 31 January 2018, I heard an application for permission to appeal out of time by a father (‘F’) (strictly speaking, at the time of making the application, a former parent) against the making of an adoption order in relation to his son, J, who is now 11 years old. The adoption order had been made by the Great Grimsby Magistrates on 1 May 2013.

I took the view that although F had not been a party to the proceedings in the lower court, he was so directly affected by the issues before that court, which undoubtedly and profoundly engaged his Article 8 ECHR rights, that he should in the circumstances probably have been so. In any event, I had no hesitation in concluding that he should be permitted to bring this appeal (applying the approach of the Court of Appeal in Webster v Norfolk CC & others [2009] EWCA Civ 59 at [141], and Re W [2016] EWCA Civ 1140: see esp. at [41] and [42]), and therefore gave him permission to do so.

Having satisfied myself as to the reasons for the delay in bringing the application, I granted his application to appeal out of time (pursuant to rule 30.4(2) and rule 30.7 FPR 2010) and allowed his appeal. I set aside the adoption order.

The outcome described in [2] and [3] above was not opposed by the Respondents, J’s mother (‘M’) and step-father (‘SF’).

The case is unusual and, notwithstanding the disposal of the appeal by agreement, a short judgment is warranted to explain my decision.

The background facts are essentially uncontroversial.

J is the only son of F and M. The parents were not married; they met through mutual friends and lived in the same locality. They had a relationship which lasted for a few months. They were still in their late-teenage years when they became parents to J; M was still living with her own parents.

In the early weeks of J’s life, F visited M and J at M’s family home on several occasions, bringing gifts for his son. He bought some basic provisions and clothes for J. M gave him some photographs of J, which he still has. M registered the birth but did not include F’s name on J’s birth certificate.

F suffered from bouts of anxiety and depression, as a result of his own adverse childhood experiences, and his visits to J became more infrequent. M and her family then moved home, and the relationship between F and J waned. F stopped visiting. Occasionally, M contacted F by social media with updates about J. When J was about 3 or 4 years old, M contacted F and invited him to meet up with her and J; F was able to spend the day with J. Although M had F’s mobile phone number, and they were in contact on social media, there was minimal contact, and F did not persevere with contact with J; his engagement was, I infer, affected by periodic depression.

M then met SF, a man some years her senior, by whom she became pregnant. In October 2011, when J was 5 years old, M married SF. A short while later, a half-sibling to J was born.

In January 2012, M and SF approached their local authority enquiring about the possibility of SF adopting J. They received advice about the process. In May 2012, SF gave the local authority written confirmation of his intention to adopt J.

On 11 April 2013, SF lodged an application for an adoption order at the Great Grimsby Family Proceedings Court (as it then was). An Annex A report (PD14C Annex A FPR 2010) was ordered and prepared in accordance with section 44(5) of the Adoption and Children Act 2002; it is apparent that in the preparation of that report SF and M had met with the social worker and had discussed their situation, and the situation of J, at length.

Significantly, both M and SF informed the social worker that they did not know the identity of F, nor his whereabouts, nor his contact details; they asserted that they had no means of knowing where he could be located. It is apparent from the report that M’s wider family (and possibly SF’s wider family) maintained the same line.

The Annex A report, dated March 2013, contains the following significant passages:

It was on the basis of this information that the Annex A reporter prepared her report. The Cafcass reporting officer was, it appears, given the same information.

Indisputably, M, SF and M’s family misled the local authority social worker, the Cafcass reporting officer, and ultimately the magistrates considering the adoption application. They accept that they did. The lies told, and set out at [14](iv) and (vii) above, were particularly egregious. To be clear, at the time M and SF spoke with the social worker (and later the reporting officer), they well knew:

As F did not have parental responsibility for J, his consent to the adoption was not required: see section 47 ACA 2002. Nor, for the same reason, was he an automatic respondent to the application: see rule 14.3 FPR 2010. He was nonetheless someone whom the court could have directed should be a respondent to the application: rule 14.3(3) FPR 2010, and given his early interest in J, that is distinctly possible. It is further possible that had he been notified of SF’s application he would have applied for an order under section 4(1)(c) of the Children Act 1989 (a parental responsibility order) and/or a Child Arrangements Order in respect of J.

None of that happened. Instead, on 1 May 2013, an unopposed adoption order was made in respect of J in favour of SF by the Great Grimsby Magistrates. I have seen no note of their reasons, if indeed any were produced. Whatever their reasons, the order had been predicated on incomplete and essentially false information.

By this order, J became, for all purposes, SF’s child; in law, he is treated as if born to SF – see section 67(1) of the 2002 Act.

In March 2016, having made a recovery from his depression, F wished to resume his relationship with J, and resolved that he would do so if necessary through the courts. He instructed solicitors, and together they identified a mediator to assist F to discuss the issues with M; the solicitors wrote to M, in conciliatory terms, to explore the possibility of mediation. M initially agreed to attend mediation, but in the event did not attend the appointment. She blocked F from social media contact. F, through solicitors, then made a more direct approach proposing the resumption of direct contact with J. In response to this letter, M’s mother telephoned F’s solicitor. She broke the news to F’s solicitor that J was now an adopted child, having been adopted some three years earlier by SF. F was informed and was understandably shocked and upset. M then proposed mediation; through this medium, the parties were able to negotiate a further meeting between J and F. Having sought further legal advice, F applied through solicitors for legal aid to pursue this appeal.

Over the months following the mediation, M and SF agreed that F could see J regularly, and this was arranged. By this time, M and SF’s marriage was breaking down, and later in 2016 they separated; J remained living with M, and his half-sibling remained with SF. Private law proceedings under the Children Act 1989 were issued at the Family Court sitting in Hull. Given the disruption in M and J’s life caused by the separation and divorce, F decided to wait before advancing his own case; in 2017, he launched this appeal.

I set out his Grounds of Appeal in full:

“Although the applicant to the adoption [SF] and his then wife [M] were well aware of his identity, that he was indisputably the father of [J] and had numerous ways of making contact with him, they made no attempt to serve him with the papers in the Application or inform him of the proposed adoption.

In the alternative, or in addition, [SF] and [M] lied to the Local Authority, the Reporting Officer and the Court about their knowledge of the paternity of the said [J] and deliberately frustrated their enquiries.

In the alternative or in addition the Local Authority, the Reporting Officer and the Court were unable to properly assess the application for adoption because of false information provided about [J]’s paternity, his relationship with his birth father, the contact he had had with him and the father’s known desire to have a relationship with the child all of which appear to have been hidden from the professionals in the case by [SF] and [M]”.

It is plain from all that I have said that each one of the three Grounds of Appeal presented by F, as set out at [22] above, are unchallengeable. The professionals were unable to conduct their statutory enquiries, and the magistrates were materially misled about J’s background history, his paternity, and F’s interest in J. The court was thus rendered unable, by virtue of M and SF’s misconduct, to reach a completely informed or reliable view about the appropriateness of the adoption in J’s best interests. The outcome of the hearing was in my view clearly “unjust” because of the “serious… irregularity” which I have described above (rule 30.12(3)(b) FPR 2010). Rightly, the rules compel me in the circumstances to allow the appeal. Having regard to the views of the parties, and of J himself (who, as it happens, has recently told a social worker that he wishes to be “unadopted”), I propose to set aside the adoption order.

I further propose to direct that the Registrar General shall cause the entry in the Adopted Children Register to be deleted or removed.

As mentioned in [5] above, this unusual case, and its outcome, warrants a little more discussion, and explanation.

Adoption orders which have been lawfully and properly made will only be set aside in highly exceptional and very particular circumstances, (see Wall LJ in Webster v Norfolk CC & Others [2009] EWCA Civ 59 at [149]). This can be achieved in one of two ways, either by an appeal, or under the court’s inherent jurisdiction (as to the latter, see for instance Re W (Inherent Jurisdiction: Permission Application: Revocation and Adoption Order) [2013] EWHC 1957 (Fam), and PK v Mr and Mrs K [2015] EWHC 2316 (Fam)). Given the procedural irregularity in the making of the decision under attack, the father rightly chose the appeal route.

The circumstances in which this adoption order was made was – as is apparent from my summary of the facts – far from ‘proper’ (Webster above); the process of collating the presenting the information to the court in this case transgressed basic principles of natural justice, by denying F the chance to contribute to, influence, inform, and/or challenge, the making of an adoption order concerning his son. These became the sort of exceptional and particular circumstances described by Wall LJ ([26] above), and fell squarely to be considered in the class of case discussed by Sir Thomas Bingham MR (as he then was) in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 at 252E-F, wherein he said:

“An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of the hearing or has not for some other reason been heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud”.

More recently,Butler Sloss LJ (as she then was) applied the same thinking in Re K (Adoption and Wardship) [1997] 2 FLR 221 at 228H, when she said that:

“The law seems to me to be clear that there are cases where a fundamental breach of natural justice will require a court to set an adoption order aside”.

In reflecting on this appeal, and the outcome, I noted the illustrative decisions of the Court of Appeal in Re M [1991] 1 FLR 458, and Re F (R) (An Infant) [1970] 1 QB 385. Neither offer any point of precedent; indeed, in Re M the court was at pains to point out that “this is in no way a precedent for any other adoption case, and these are quite exceptional circumstances”. They provide further useful illustrations of situations in which an adoption order may be set aside where the process has been materially and fundamentally undermined by non-disclosure. In Re M, a father had consented to the adoption of his children by a step-father but at the time, the mother and step-father had withheld from him that the mother of the children was terminally ill. She died three months later; the stepfather struggled to care for the children. The children wished to live with their father. The Court of Appeal allowed the father’s appeal on the basis that the adoption order had been made “by mistake”. In Re F (R) (An Infant) an adoption order was made on the basis that the mother could not be found, notwithstanding that her contact details would have been available on reasonable enquiry; when she materialised, she successfully applied for the adoption order to be set aside.

No one truly doubts that an adoption order is one of the most, if not the most, significant and, in human terms, far-reaching of all orders available to a judge in any jurisdiction in England and Wales. An adoption order has a quite different standing to almost any other order made by a court (see Swinton Thomas LJ in Re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239 at 245C); Sir Thomas Bingham referred to it (in the same case) as possessing “a peculiar finality” (ibid. at 251G-H). The severance of a family’s legal (and often actual) relationships, and the creation of a new set of legal family relationships, fundamentally impacts upon the life of the child, the natural parent who faces becoming a ‘former’ parent, and the adoptive parent. This exceptional form of order is therefore rightly only available where ‘nothing else will do’ (Re B [2013] UKSC 33 at [145]).

It is for those reasons that an adoption application is subjected to particularly careful and rigorous scrutiny; the local authority checks which are reproduced in the PD14C Annex A report are extensive. Completion of the Annex A report operates as:

“…a fundamental statutory protection for a child who any person seeks to adopt.  It is produced by a local authority officer and a local authority is subject to statutory duties in its compilation that directly relate to the safeguarding of the welfare of the child concerned” Re S (Adoption: Annex A report) [2015] EWCA Civ 1345,Sir Ernest Ryder SPTat [16].

The checklist of relevant factors for the court to consider under section 1(4) ACA 2002 are more of course widely drawn than for the making of lesser, child arrangement and associated, orders. Applicants for adoption can be assumed to act responsibly and with integrity. But of course, there are those, as here, who do not. Professionals can only work with the information they receive, and if parties are determined to pull the wool over professional eyes, and encourage others (friends and/or family members) to do the same, only through conscientious detective work on the part of the social worker will the deceit ever be likely to be unearthed.

As the deceit was not uncovered at the time, it follows that, in this case, the local authority social worker and the Cafcass reporting officer were denied the chance to consider the losses which J would face (throughout his life) of ceasing to be a member of F’s (“original”) family and become an adopted person. Self-evidently, the social worker could not, in her report, properly reflect J’s background; she could not consider whether F should be a respondent to the application; she could not consider whether J’s relationship with his father and paternal family was, or could be, a matter of significance to him; she could not gauge whether J had inheritance rights which would be lost by adoption. Crucially she could not evaluate or reach any informed view of the welfare checklist factors in section 1(4) ACA 2002, including at sections 1(4)(c) and 1(4)(f)(iii):

The local authority was further denied the opportunity to fulfil its obligations under the Adoption Agencies Regulations (AAR) 2005, regulation 14, specifically to offer counselling to F, to explain to him the procedure for, and legal implications of, adoption, and to ascertain his wishes and feelings (see regulation 14(3),(1(a), 1(b)(i)/(iii), 1(c) AAR 2005). The court did not have the chance to hear directly or indirectly from F, to learn about his aspiration to be a father to J in spite of his own difficulties, and/or the views of J’s paternal grandparents.

Proceeding only on partial information had the effect of materially undermining the integrity of the order by which SF became J’s legal father. The Respondents recognise this and rightly do not raise any obstacle to the outcome contended for by F. I am driven inexorably to the conclusion that the adoption order was wrongly made.

As I made clear at the hearing of this application and appeal, I view the conduct of M and SF as disgraceful. They deliberately set out to undermine the solemnity and gravity of the adoption process, with its extraordinary life-long implications for all concerned, and they manipulated the outcome by their multiple deceptions. More significantly they knowingly concealed from the court F’s actual or at least potential Article 8 rights to family life with his son, and indeed proper involvement or participation in a legal process by which his son would become, in law, the son of another. They should be, as I believe they are, utterly ashamed of their behaviour.

Although I have not seen the specific application for adoption which was issued by SF in 2013, I have assumed that he made his application on the standard Form ‘A58’, published in accordance with Part 5 of the FPR 2010. The form will have required SF to declare why J’s father’s consent was not available; I assume it was said that he could not be found: per section 52(1)(a) ACA 2002. That form will have required SF’s signature under the Statement of Truth. By that Statement are to be found the words:

“Proceedings for contempt of court may be brought against a person who makes or causes to be made, a false statement in a document verified by a statement of truth”

In accordance with rule 17.6 FPR 2010, power is vested in the court to commit to prison those who make or cause to be made false statements in a document without an honest belief in the truth; the procedure is that set out in rule 37.17 FPR 2010.

F has made it clear that he does not wish for M and SF to be punished for their lies. While ultimately that decision lies with me, I have nonetheless given considerable weight to his view in resolving, on balance, not to initiate any form of civil sanction. I have additionally borne in mind, in taking this view, what I go on to say at [38] and [39] below. However, should any person contemplate such deception of the authorities or the court in these circumstances, they should understand that generally such dishonesty would be punished.

Having allowed the appeal and set aside the adoption order, I was asked by all parties to consider J’s current situation, with a view to making orders by consent under Parts I and II of the Children Act 1989.

J now sees F regularly and has done for some months. He has stayed overnight. J knows that F is his natural father; he has recently said how much he enjoys seeing F and developing relationships with the paternal family. F indicates no continuing experience of depression. M and F have constructively discussed the future of contact and have jointly proposed that I should make an order for regular weekend staying contact between J and F. This, it seems to me, entirely accords with his best interests, and I am pleased to be able to do so.

At the same time, I further approved a consent order granting F parental responsibility for J.

That is my judgment