S (A Child), Re

This is a freeing application in relation to S, a boy who was born on 26 October 1998 and is therefore 6¾ years old. S is the youngest of ten siblings, the others of whom were born on various dates between August 1980 and November 1994 and whose ages accordingly range from not quite 25 to 10¾. It will be noticed that S is some four years younger than his next oldest sibling.

S’s father is M, who was born in 1954; his mother is Z, who was born in 1961. They are Muslims from Pakistani Kashmir who married there in 1979. They came to this country some months later and except for the father, who separated from the mother in March 2003 and has recently returned to Pakistan, have been here ever since. The mother never went to school, and has no formal education. She lived a very modest and sheltered life in Kashmir and continued to live a very traditional and sheltered life in this country. According to her the father was a religious fanatic. One of the professionals is recorded by Bodey J in a judgment he gave on 30 January 2004 as having spoken about the father using Islam inappropriately to control his family. Bodey J described the mother as someone who had spent her entire married life in an atmosphere and environment where violence and enforced dominance and control were endemic. The father was her only role model. She was entirely dependent upon him and frightened of him because of the beatings he meted out to her. It is a mark of her isolation that even now – 25 years after she first came to this country – the mother still has a somewhat limited understanding of English and had to have her evidence and the entire proceedings translated for her.

The local authority first became involved with the family in 1987. There were reports of poor hygiene, lack of stimulation and the children scavenging. The records over the next 16 years apparently occupy some eleven or twelve ring folders. The thrust of them, according to Bodey J, is “frankly overwhelming”. In 1998 and again in 2001 the children’s names were placed on the Child Protection Register for neglect. The parents failed to attend core group meetings. The father was threatening, aggressive and confrontational, saying that he did not want his family “contaminated by non-believers”.

The care proceedings, which initially related to the six youngest children (the four eldest children were by then all too old to be the subject of such proceedings), began on 12 March 2003 when they were removed into care under a Police Protection Order. This resulted from what Bodey J described as a vicious assault by the father on the third oldest child, a girl then aged 19½, on 10 March 2003. An Emergency Protection Order and subsequently Interim Care Orders followed. The mother has throughout played an active part in the proceedings. The father has not lived with the mother since he was arrested in March 2003 and has played no part in the proceedings since fairly early on.

Ever since the care proceedings started S has been placed with foster carers, Mr and Mrs S. He has not seen his father since March 2003. He has not seen his mother since 15 August 2003, since when contact has been stopped. The reasons why contact was brought to an end, and why an order under section 34(4) of the Children Act 1989 was made on 18 September 2003 and renewed on 17 October 2003 – it remains in force – are set out in a judgment given by Bodey J on 17 October 2003. S has also ceased to have any contact with any of his siblings.

The care proceedings came on for hearing before Bodey J in January 2004. He gave a long and detailed judgment on 30 January 2004. By then the eldest of the six children he was concerned with was 17½ and it was agreed that it was inappropriate to make any order in relation to her. Bodey J made care orders in relation to each of the other five children, including S. The eldest, a boy born in May 1988, was to remain in long-term foster care with his current carers. The next three, girls born in July 1990, November 1992 and November 1994, and therefore at that time approximately 13½, 11 and 9 respectively, were to remain together in long-term foster carer with their current carers. The plan for S, who at that time was only 5 and was in a separate foster placement, was different: it contemplated permanency through a culturally and ethnically appropriate adoption. Bodey J approved the plan, on the basis that if suitable adopters could not be found after six months or so – that is, by the summer of 2004 – S would be found a suitable long-term foster placement. It was recognised that Mr and Mrs S, who by then were 59 and 63 respectively, would be too old to act as long-term carers for him.

I need not go through the judgment Bodey J gave on 30 January 2004 in any detail. It has to be read in full. It suffices for present purposes to record Bodey J’s main findings:

On 11 May 2004 S was approved for adoption by the Adoption Panel. The freeing application was issued on 17 September 2004. The statement of facts in support is dated 26 August 2004 and the Schedule II report is dated 27 August 2004. In accordance with directions given by Bodey J on 24 September 2004 it came before me for final hearing on 18 November 2004. In the event it had to be adjourned for final hearing before Sumner J on 27 April 2005. No prospective adopters had been found and I directed that a parallel search for adopters and long-term foster carers was to be undertaken. By March 2005, however, prospective adoptive parents had been found. I shall refer to them as Mr and Mrs X. They are of Pakistani origin and are practising Muslims. On 14 March 2005 a Care Team Meeting agreed that if for whatever reason adoption by Mr and Mrs X could not proceed, then the plan for adoption in relation to S would not proceed and only long-term fostering would continue to be pursued. The matter was not ready for hearing before Sumner J on 27 April 2005 – Mr and Mrs X were in Pakistan for a family wedding and the guardian had not been able to complete her investigations into them – and was adjourned for final hearing before me on 8 July 2005. Mr and Mrs X returned to this country on 28 May 2005 and subsequently confirmed their intention to proceed. The match was approved by the Adoption Panel on 24 June 2005. The local authority filed its final evidence on 27 June 2005, confirming its plan as being for adoption with only indirect contact (Mr and Mrs X having indicated that they wanted only indirect contact).

On 28 June 2005 the children’s guardian, Mrs Joan Thorburn, filed her final report supporting the local authority’s application. Mrs Thorburn, who is an extremely experienced guardian who has acted for S throughout the care proceedings and subsequently in the freeing application, has met Mr and Mrs X and is satisfied that they are well placed to meet S’s needs. They presented as a caring couple who are enthusiastic and committed to caring for S in the long term, and although their main language is Punjabi their communication skills in English are more than adequate. They have a good support network with an extended network of bilingual family members and friends with children. Mrs Thorburn says that she has “no hesitation” in endorsing the local authority’s plans for S and that the placement with Mr and Mrs X appears to have all the right elements, especially in terms of S’s religion and ethnic identity. Mr and Mrs X, in her opinion, are “culturally and ethnically an excellent match for S and eminently suitable as adoptive parents”. She says that S has been waiting a long time for a suitable family to claim him and, in her opinion, deserves and has a right to settle with a new family and be claimed by them. She points out that S has waited a long time for his future to be secured and believes that if we do not grasp this opportunity for him now he will, almost certainly, not get another opportunity. She urges the court to draw a line under this matter once and for all by making a freeing order and continuing the section 34(4) order. Alternatives to adoption, she says, are not viable and would not meet S’s long term needs. Given the mother’s stance, reinstating direct contact would not be in S’s best interests and could seriously undermine the stability of the adoptive placement.

The mother’s final statement (referring back to earlier statements dated 8 November 2004 and 27 April 2005) is dated 4 July 2005. I shall deal with her evidence below.

On Monday 4 July 2005 S was introduced to Mr and Mrs X. Both that meeting and a subsequent meeting later in the week went very well. The hearing before me took place on Thursday and Friday, 7 and 8 July 2005.

I heard oral evidence from S’s social worker, Ms B, from the mother and from the guardian. Ms B described S’s first meeting with Mr and Mrs X on 4 July 2005 and how he had referred to them as “my new mummy and daddy”. She described how, in a telephone conversation on the morning of the hearing, Mrs S, S’s foster carer, had described S as very excited and asking when his mummy and daddy are coming back to see him again. Ms B said that in her opinion – and it is obvious that she has got to know S very well – he would be “absolutely devastated” if told that the plan was not going to proceed. She referred to the mother as refusing to listen to plans for S and as becoming quite abusive, raising her voice, shouting, and not wanting to hear anything about S. She had discussed with the mother the possibility of her writing to S or exchanging photographs, but the mother refused. She explained that photographs are against her religion, but has given no explanation for not wanting to write. The simple fact, as Ms B put it, is that it is really, really difficult to get the mother to engage at all.

In her oral evidence the guardian said that Mr and Mrs S have done a wonderful job with S, but quite apart from their ages Mrs S has been desperately ill and S knows that he cannot stay with them.

At the end of the hearing I reserved judgment, informing the parties that I would announce my decision, and if at all possible also hand down my judgment, on Monday 11 July 2005.

An overnight stay with Mr and Mrs X is planned for Saturday/Sunday 9/10 July 2005. If all goes well, and if I make a freeing order, it is planned that S should be placed with Mr and Mrs X next weekend, probably on Saturday 16 July 2005.

The father, although served, has played no part at all in the freeing application. The mother has played an active part. She opposes adoption on religious grounds and because in her view it is not in S’s best interests. She seeks the return of S – indeed of all the children – and, if not, then direct contact with him.

In a case such as this there are two questions I have to consider:

In relation to the first question, the matter is to be determined, in accordance with section 6 of the Adoption Act 1976, by reference to the need to safeguard and promote S’s welfare throughout his childhood. In relation to the second question the test is quite different: the matter falls to be determined by reference to an objective reasonable parent in the position of the actual parent. Although a reasonable parent will of course have regard to his child’s welfare, so that in that sense welfare is also relevant to the second question, it is not determinative. The question is whether the parent is, within the meaning of section 16(2)(b) of the Adoption Act 1976, withholding his consent “unreasonably”.

There is, of course, much learning on what is meant in this context by “unreasonableness”. I need not rehearse it. The key authorities are the decisions of the House of Lords in In re W (An Infant) [1971] AC 682 and In re D (An Infant) (Adoption: Parent’s Consent) [1977] AC 602 and the decision of the Court of Appeal in Re F (Adoption: Freeing Order) [2000] 2 FLR 505. Extensive citation is neither necessary nor appropriate. The principles are well known. I refer first to what Lord Hailsham of St Marylebone LC said in In re W at p 700:

“Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable. The question in any given case is whether a parental veto comes within the band of possible reasonable decisions and not whether it is right or mistaken. Not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable. There is a band of decisions within which no court should seek to replace the individual’s judgment with his own.”

I go next to the equally well-known passage in the speech of Lord Wilberforce in In re D at p 625:

“What, in my understanding, is required is for the court to ask whether the decision, actually made by the father in his individual circumstances, is, by an objective standard, reasonable or unreasonable. This involves considering how a father in the circumstances of the actual father, but (hypothetically) endowed with a mind and temperament capable of making reasonable decisions, would approach a complex question involving a judgment as to the present and as to the future and the probable impact of these upon a child.”

The only other authority I need refer to at this stage is the passage in the joint judgment of Steyn LJ and Hoffmann LJ in Re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260 at p 272, commended by the Court of Appeal in Re F (Adoption Freeing Order) [2000] 2 FLR 505 at paras [21] and [30], where they suggested that the judge should ask himself

“whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents.”

I return to consider the first question: Is adoption in S’s best interests? There is, in my judgment, only one possible answer to this question: adoption is in S’s best interests.

Mr Gray, who had earlier appeared on behalf of the mother before Bodey J, recognises that Bodey J has already made a very clear decision as to S’s best interests following a lengthy hearing. But he submits that adoption is no longer in S’s best interests, first, because it will now take place some eighteen months after Bodey J found that, although adoption would be in S’s best interests if a suitable placement could be found within six months, he was otherwise of the view that S’s best interests would be served by long-term fostering; secondly, because the mother’s circumstances, as he would have it, have changed considerably, particularly given the fact that the father has been out of her life since March 2003.

In my judgment neither of these arguments will bear the weight Mr Gray seeks to attach to them. The delay, which is something I commented on at the hearing on 18 November 2004, is undoubtedly very unfortunate; most unfortunate. But the question, as Ms Woolrich correctly put it on behalf of the local authority, is not whether the delay can be justified but whether, as matters stand today, the plan for adoption is or is not still appropriate for S and still in his best interests. In my judgment it is.

In January 2004 Bodey J gave compelling reasons for holding that adoption at a time when S would be about 5¾ was in his best interests. It remains in his best interests notwithstanding that he is now 6¾ – still, it is to be noted, more than two years younger than his youngest sister was in January 2004 when Bodey J approved a plan for her long-term fostering.

The guardian gives compelling reasons, with which I agree, for thinking that adoption is still in S’s best interests. He cannot stay with Mr and Mrs S, so a move of some sort is inevitable, and S knows it. S, it is clear, has been carefully prepared for and is now excited at the prospect of acquiring a new, permanent, family. Mr and Mrs X are an excellent match. And the sad truth is that the mother, despite everything pressed on me by Mr Gray, is still quite unable to care for S. Rehabilitation of S to his birth family is simply out of the question. This is not merely because of the mother’s continuing inadequacies in coping and looking after S. One of the saddest features of the case was Ms B’s graphic account of S’s continuing refusal (except on one occasion which has never been repeated) to talk about his birth family. She has been seeing him frequently and has built up a very good rapport with him, but despite all her efforts S refuses to talk to her about his birth family, either his mother or his sisters, and whether in connection with contact or otherwise. He will leave the room or put his hands up at the very mention of the topic.

True it is that the mother has remained separated from the father and that she has been getting help from a local organisation for the support of Asian women. True it is that she has made some progress since the proceedings started in understanding English. But the sad truth, I am afraid, is that in essence the mother’s position has not changed in any material respect since Bodey J gave judgment in January 2004. She is no better fitted now than she was then to look after S, or indeed to look after any of her non-adult children. She has not embarked upon any therapy of the kind contemplated by Bodey J. There is nothing to show that she accepts the major findings against her as set out in Bodey J’s judgment and much, in fact, to suggest that she does not. She remains unable or unwilling to understand, let alone accept, her own responsibility for the difficulties endured by S and his siblings. She continues, as we have seen, to display the marked hostility and anger towards social services that interfered with her ability to work with them prior to the final hearing of the care proceedings before Bodey J. As Ms Woolrich pointed out, a small but telling example was given by Ms B in her evidence. Following his circumcision there was a complication which meant that S needed a minor surgical procedure. Although this had been advised by a consultant paediatrician, and was plainly something in S’s best medical interests, the mother was abusive and threatening when Ms B and a colleague visited her to discuss it.

Sadly, I have to agree with the view of the professionals that, even now, the mother simply does not appear to have any adequate understanding of her children in relation to either their physical or their emotional needs and that she still shows very little insight into how her behaviour and the behaviour of the father placed all the children at risk.

I agree with the guardian that adoption is in S’s best interests. Indeed, having regard to all the written and oral evidence, including not least that of the guardian, I am satisfied that adoption is quite plainly in S’s best interests. I recognise, of course, that this means that S will have no contact with either his mother or his siblings, and that is obviously an important factor to be taken into account. But the plain, if sad, facts are that S has had no contact with his mother or his siblings for quite some time now and is, as we have seen, adamantly opposed even to discussing them. At the end of the day, S’s interests in acquiring a substitute family, and thereby achieving the stability, certainty and security which he so plainly needs and is so plainly entitled to, heavily outweigh, in my judgment, the loss of his relationship, such as it still is, with his birth family.

I should add that in coming to this conclusion I have also taken into account, to the extent appropriate for this purpose, all the various other matters relied upon by Mr Gray in support of his contention that the mother is not acting unreasonably in withholding her consent. But none of these matters, in my judgment, suffices to overcome the overwhelming case in favour of adoption.

I turn therefore to the second question: Are the mother and the father unreasonably withholding their consent? In my judgment they are. The mother is unreasonably withholding her consent to S’s adoption. So too is the father.

Mr Gray identified six reasons why, in his submission, the mother was not being unreasonable in withholding her consent to S’s adoption: (a) her own religious beliefs; (b) the local authority’s delay in implementing the plan for adoption; (c) her belief that the local authority has never given her a chance; (d) her belief that she is now able to parent S; (e) S’s age, in conjunction with the fact that he will have to be moved from his current placement with Mr and Mrs S; and (f) the fact that adoption will cut S off from contact with his family, including his siblings.

The first of these – the mother’s religious beliefs – bulked largest both in her evidence and in the very helpful submissions I had from counsel. I shall deal with it last, turning first to deal with the other, and on any basis, as it seems to me, much less compelling arguments.

I have already considered the question of delay in the context of the question whether adoption is in S’s best interests. Mr Gray says that the delay adds to the mother’s sense of grievance and betrayal by the local authority. That I can readily accept, because in this, as in all other respects, I am more than willing to accept the mother as being entirely genuine in what she says. She comes over as a simple and straightforward person, entirely lacking in guile and lacking both the wish and indeed any ability to dissimulate. She says what she thinks and believes what she says. But that, of course, is not determinative, for in the final analysis the question is not whether she is acting genuinely, bona fide or mala fide, but whether she is acting reasonably or unreasonably. And that has to be judged by an objective, not a subjective, standard. Moreover, as Mr Gray himself conceded, pointing to a helpful discussion in Hershman & McFarlane’s Children Law and Practice, para D[145], of Re BA (Wardship and Adoption) [1985] FLR 1008, Re B (A Minor) (Adoption: Parental Agreement) [1990] 2 FLR 383, Re E (Minors) (Adoption: Parents’ Consent) [1990] 2 FLR 397 and Re C (Minors) (Adoption) [1992] 1 FLR 115, there is a distinction between a mere sense of grievance or injustice, which is irrelevant, and the facts which give rise to it. Ms Woolrich submits, and I agree, that a reasonable parent could not object simply on the basis of delay unless the delay is such that the plan for adoption is no longer appropriate for the child. I have already explained why in my judgment, and in agreement with both the local authority and the guardian, adoption remains the best plan for S notwithstanding the delay. Any reasonable parent would, in my judgment, come to the same conclusion, namely that adoption, if otherwise appropriate, has not ceased to be so merely because of the unfortunate delay. The mother, in my judgment, is acting unreasonably in putting forward delay as a reason for withholding her consent.

The mother may well feel that the local authority has never given her a chance and may very well for that reason feel a sense of grievance and betrayal by the local authority. But there is not, in my judgment, any objective or reasonable basis for such a view. I need not repeat Bodey J’s findings about the mother’s personal responsibility for the harm done to S and her other children. The sad fact, however, is that the mother’s feeling of grievance is in very large measure founded on what, as I have already said, is her continuing inability or unwillingness to understand, let alone accept, her own responsibility for the difficulties endured by S and his siblings. Her stance is summarised by Mr Gray as being that the local authority and the guardian have always regarded her as the cause of the children having to go into care whereas in fact she was a victim of the father’s tyranny. That I do not doubt is how she views matters, but it is little short of a travesty of the reality. The mother complains that no further work has been done since the hearing before Bodey J to establish whether she might be in a position now or in the future to care for S. That is true, in the sense that she has not had any therapy, but it ignores all the efforts Ms B and others have made to try and get her to engage, and it ignores her consistent reaction as described by Ms B, refusing to listen to plans for S, becoming quite abusive, raising her voice and shouting. The mother may have – does have – a sense of grievance, but in my judgment it is founded in truth on her own distorted view of the facts. It has no sensible basis in factual reality. It is simply unreasonable. The mother, however genuine she may be, is being unreasonable in putting forward her grievances as a reason for withholding her consent.

The mother’s belief that she is now able to parent S is again devoid of any reasonable basis in fact. The simple reality, on any sensible objective view of the facts, is that she is not. I need not set out again what I have already said on this point, save to repeat that rehabilitation of S to his birth family is simply out of the question, that in essence the mother’s position has not changed in any material respect since Bodey J gave judgment in January 2004, and that she is no better fitted now than she was then to look after S. Nor, I might add, is there the slightest reason to believe that things might improve in future. On any objective view of the matter the mother, in my judgment, is simply not able to parent S. She may believe, and believe passionately, that she is, but there is no objective basis for her belief. She is, in my judgment, being unreasonable in putting this forward as a reason for withholding her consent.

The mother is also being unreasonable in relying upon S’s age as a reason for withholding her consent. True it is that he is now very much at the higher end of the scale for adoption. True it is also that that his age may possibly leave him vulnerable to placement breakdown given his memories, though I think that is highly unlikely given the success of his placement with Mr and Mrs S and his ability, as I find, to form secure attachments. But the mother’s objection on this score overlooks the fact – and fact it is – that S cannot remain with Mr and Mrs S and will therefore have to be moved from his current placement whatever happens. And it also overlooks – ignores – all the other reasons given, in particular by the guardian, for believing that adoption is, and remains, in S’s best interests. Moreover, the mother’s negative views about Mr and Mrs X’s suitability to adopt S and about their commitment are simply not borne out, not least in the light of the guardian’s very positive evidence about them. In my judgment a reasonable parent in the mother’s position paying proper regard to the weight of professional opinion would not be using S’s age as a reason for withholding consent. There is no objective basis for the mother’s worries in this regard. She is being unreasonable in seeking to withhold her consent on this ground.

Plainly, if he is adopted by Mr and Mrs X, S will be cut off from his family, not merely from his mother but also from his siblings. And I recognise that in this respect S is being treated very differently from his older siblings, all of whom are in long-term foster placements and some of whom, as Mr Gray points out, may in time drift back to the mother as some of the oldest children have done. Let all that be accepted, but there remain two cardinal matters that any reasonable parent in the position of the mother would appreciate and take into account: first, all the reasons given, in particular by the guardian, for believing that adoption is, and remains, in S’s best interests; secondly, the fact that S is not having any contact either with his mother or with his siblings and that he evinces the strongest objection even to discussing the idea of contact. A reasonable parent, in my judgment, would not treat this as a ground for withholding consent.

I turn at last to what is in truth the core of the mother’s case, her objection to adoption on religious grounds.

It is clear that the mother has a very deep and utterly genuine commitment to Islam. That was apparent from the views she expressed in the course of her evidence, from the way in which she gave that evidence and, indeed, from the way in which she handled and kissed the Quran before taking the oath. I intend no offence when I say that her beliefs come over as the simple, unsophisticated and unquestioning faith of a woman who, despite her twenty-five years in this country, is still very much, I suspect, located socially, emotionally and religiously in the peasant society of Kashmir from which she sprang. But what is clear, and needs to be recognised, is that her faith is both very real and very important to her.

Her religious objections to adoption were simply but passionately stated. She considers adoption to be against her religion. She believes that the Quran – much of which she knows by heart – says that it is a mother and father’s responsibility to bring up their children and that adoption is wrong.

“Adoption is not allowed by Islamic law. My religious beliefs would therefore prevent me from giving my consent even if I thought that adoption was best for S which I do not.”

She believes that if a child is adopted then when he dies his soul will not get peace. She believes that if S is adopted, not merely will he lose his inheritance rights to certain family land in Pakistan but that she, in consequence, will not be able to go on Haj. She recognises that the Quran permits Kafala, which she describes as being very much like foster care, but says that Kafala is very different from adoption, as the child keeps the surname and inheritance rights of the biological family. She says that the Quran does not permit the full separation of a child from the family as happens with adoption.

The mother’s oral evidence elaborated what she had already said in her written statements. She added the point that she would not be able to go on Haj. She said “I have memorised the Quran by heart and I am a true follower of Islam”, adding with obviousness sadness and sincerity that “If I had known this was going to happen I would never have left Pakistan. Twenty five years of my life have been wasted, because my children have been taken away from me.”

The mother’s distress was palpable: she was in tears throughout most of the hearing. So too was the sincerity and strength of her religious convictions. I have never before seen a mother so openly distraught at the prospect of losing her child.

There has been no expert evidence in this case but I have helpfully been referred to a number of materials bearing on the Islamic view of adoption. The first is the advice of a Jordanian lawyer as set out by Charles J in his judgment in Re J (Adoption: Consent of Foreign Public Authority) [2002] EWHC 766 (Fam), [2002] 2 FLR 618, at para [23]:

“Let me begin by stating that adoption procedures are not recognised in Jordan as adoption is prohibited in Islam under Sharia law. The concept of parental responsibility means all the rights, duties, powers and responsibilities that a natural parent of a child has in relation to the child. However, this does not include the natural parent's right to agree to adoption ...

Therefore the Sharia courts, which have jurisdictional authority over such matters, will not recognise an order of adoption issued by an English court ...

Although there is no express legal provision prohibiting adoption, it is nonetheless prohibited in Jordan by virtue of the Sharia. The Sharia court resorts to Islamic jurisprudence in this matter as well as in its definition of the system of “kafala” which is recognised in Islamic jurisprudence. The concept is also recognised in Jordan and it means the long-term fostering of a child without the right to kinship. In other words, while kafala results in placing the child with a caring family, it does not allow the actual adoption of a child and changing his/her lineage.”

The second is a leaflet, Foster Care in Islam, published by Foster Care Link, an organisation describing itself as specialists in Muslim, Asian, Black and Ethnic Minority Placements and incorporating the Association of Islamic Foster Care. The third is a recent lecture to the North Eastern Circuit section of the Family Law Bar Association, Islamic Family Law: Myths Dispelled, by Shama Nijabat of Paradise Chambers in Sheffield. Finally there is information culled from the web (the relevant website reference is http://islam.about.com/cs/parenting/a/adoption.htm).

In broad outline all this material is to much the same effect. There is no adoption in our sense of the word in Islam, but Kafala is well established in Islam as a means of providing care to children, allowing a child to benefit from the care of a good home whilst at the same time losing neither his family name nor his rights in his birth family. Kafala is best understood as the long-term fostering of a child without the right to kinship. Under Kafala the “adoptive” family never takes the place of the biological family, whose ties to the child are never severed; the “adoptive” family are trustees and caretakers of someone else’s child. The Quran (33:4-5) specifically reminds “adoptive” parents that they are not the child’s biological parents:

“Nor has He made your adopted sons your (biological) sons. These are but (figures of) speech uttered by your mouths … Call them by their father’s names; this is more equitable in the sight of Allah. But if you know not who their fathers were (call them) your brothers in faith and your friends”.

The expert quoted by Charles J opined that adoption, as opposed to Kafala, is “prohibited” by the Sharia. It is not altogether clear from the extract which appears in the report precisely what he had in mind. There are at least three different senses in which it might be said that adoption, in our sense of the word, is unlawful or wrong. First, it may simply mean that adoption is not recognised as an institution by the particular legal system in question: that was, for example, the situation in English law prior to the Adoption Act 1926. Secondly, however, it may mean that adoption is prohibited, in the sense that the attempt to have one’s child adopted is treated as a breach of parental obligation and is for that reason ineffective in law: English law, for example, treats any attempt by a parent to transfer parental responsibility to another with a view to avoiding one’s own parental responsibility as contrary to public policy, and any contract purporting to have this effect is void. Thirdly, however, it may mean that adoption is prohibited in the sense that it is a delict, a crime or a sin, exposing the parent who places his child for adoption to some form of penalty or punishment, whether human or divine.

As I read him, the expert in the case before Charles J treated adoption as something not recognised by the Sharia and also, it would seem, as something prohibited by the Sharia, in the sense that the natural rights which a parent has in relation to his or her child do not include the right to agree to adoption. But there is nothing in any of the materials I have been shown to suggest that to give up a child for adoption constitutes a wrong or a sin exposing the parent to penalty or punishment. The only reference to sin in this context that I have been shown is in the Quran (2:233) where the following appears:

“And if you both (parents) decide, by mutual consent and counsel, upon separation, you will incur no sin if you decide to entrust your children to foster-mothers, you will incur no sin provided you ensure in a fair manner, the safety of the child which you are handing over.”

That said, this case is not to be determined by reference to some abstract principle of Islam but having regard to the mother’s own religious and other beliefs. The fact is – and I so find – that the mother believes (and believes that in so believing she is a good Muslim) that if S is adopted then when he dies his soul will not get peace, and she likewise believes that if he is adopted she will not be able to go on Haj. Those beliefs may or may not be borne out by the Quran and the Sharia, but they are the mother’s beliefs. And they are also, I am prepared to accept, beliefs that can conscientiously be held by a devout Muslim as the mother believes herself to be.

Mr Gray submitted that in these circumstances I have to consider whether the mother is being unreasonable in withholding her consent to the making of an order which, as he put it, directly contradicts her religious beliefs. He reminds me that section 7 of the Adoption Act 1976 requires “regard” to be had “so far as is practicable” to any wishes of a child’s parents as to the religious upbringing of the child. He draws attention to Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He submits that the court should not place a limit on the mother’s beliefs when considering whether she is acting reasonably or unreasonably in withholding her consent to adoption. Crucially, he asserts that the view the mother has of adoption is not of itself unreasonable in the light of the materials to which I have been referred. He says that I should also take into account in this context the fact that the mother is not opposed in principle to the notion of long-term fostering. He accepts, in the light of the evidence I have heard, that Mr and Mrs X, although practising Muslims, are nonetheless prepared to adopt a child in accordance with its definition and implications under English law. But he says that this does not mean that the mother is being unreasonable. For instance, as he points out, any number of Christians may hold different views – often very different views indeed – on such matters as transubstantiation, abortion and contraception.

I accept that the mother’s religious beliefs are reasonable. But that is not the question. The question is whether the mother is being reasonable or unreasonable in affording to her religious views, however reasonable in themselves they may be, the pre-eminence she plainly does when deciding to withhold her consent to S’s adoption.

Mr Stonor on behalf of the guardian rightly drew attention to the fact that we live in a secular society, though at the same time correctly acknowledging that we also live in a tolerant society of many faiths. I make no apology for repeating what I have said on previous occasions, most recently in Pawandeep Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] 2 WLR 325, at paras [62]-[67].

There have been enormous changes in the social and religious life of our country. We live in a secular and pluralistic society. But we also live in a multicultural community of many faiths. Our society includes men and women from every corner of the globe and of every creed and colour under the sun. We live in a society which on many social, ethical and religious topics no longer either thinks or speaks with one voice. These are topics on which men and woman of different faiths or no faith at all hold starkly differing views. All of those views are entitled to the greatest respect but it is not for a judge to choose between them. The days are past when the business of the judges was the enforcement of morals or religious belief, for we live, or strive to live, in a tolerant society increasingly alive to the need to guard against the tyranny which majority opinion may impose on those who, for whatever reason, comprise a weak or voiceless minority. And although historically this country is part of the Christian west, and although it has an established church which is Christian, we sit as secular judges serving a multicultural community of many faiths in which all of us can now take pride. We are sworn to do justice “to all manner of people”. Religion – whatever the particular believer’s faith – is no doubt something to be encouraged but it is not the business of government or of the secular courts, though the courts will, of course, pay every respect and give great weight to a family’s religious principles. Article 9 of the Convention, after all, demands no less. So the starting point of the law is a tolerant indulgence to cultural and religious diversity and an essentially agnostic view of religious beliefs. A secular judge must be wary of straying across the well recognised divide between church and state. It is not for a judge to weigh one religion against another. The court recognises no religious distinctions and generally speaking passes no judgment on religious beliefs or on the tenets, doctrines or rules of any particular section of society. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.

But however much respect one pays to religion or to any particular religion, and whatever the religion and the nature of the religious beliefs in issue in the particular case, a parental view based on religious belief, however profound, can never be determinative when it comes to considering what is to be done in relation to a child. After all, although Article 9 of the Convention guarantees “the right to freedom of thought, conscience and religion”, the right to “manifest” one’s religion, whether in worship, teaching, practice or observance, is subject to such limitations, prescribed by law, as are “necessary in a democratic society … for the protection of the rights and freedoms of others.” The mother’s rights under Article 9, in other words, are qualified by S’s rights, for example his right under Article 8 to “family life” in an albeit substitute family: see the discussion by Wall J in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678 at pp 700-701 approved by the Court of Appeal in Re J (Specific Issue Orders: Child’s Religious Upbringing and Circumcision) [2000] 1 FLR 571. And section 7 of the Adoption Act 1976, as we have seen, requires regard to be had to the parent’s religious views only “so far as is practicable”. The point was put very clearly by Rutledge J in the United States Supreme Court in Prince v Massachusetts (1944) 321 US 158 at p 170:

“Parents may be free to become martyrs themselves. But it does not follow that they are free in identical circumstances to make martyrs of their children before they have reached the age of full and legal discretion when they can make choices for themselves.”

There are many examples of the application of this principle to be found in the books. The tenets and faith of Jehovah’s Witnesses will not prevent the court ordering a child to receive a blood transfusion, even though both the parents and the child vehemently object: see, for example, the observations of Johnson J in Re P (Medical Treatment: Best Interests) [2003] EWHC 2327 (Fam), [2004] 2 FLR 1117. There are, of course, many other examples in the books of this particular dilemma. A further illustration of the application of the principle is to be found in Re J (Specific Issue Orders: Muslim Upbringing and Circumcision) [1999] 2 FLR 678, where Wall J declined to order the Muslim son of a Muslim father to be brought up as a Muslim and circumcised.

Now these, of course, were cases in which the court was concerned in the final analysis to act in what it conceived to be the child’s best interests. But a similar approach applies also, in my judgment, where, as in the present case, the child’s best interests are not determinative and where the court is concerned to decide whether a parent is acting reasonably or unreasonably. Religious belief is no more determinative of whether a parent is acting reasonably than it is of whether something is in a child’s best interests. Whilst the court will no doubt be slow to conclude that a parent faithfully striving to follow the teachings of one of the great religions of the world is acting unreasonably, there is nothing to prevent the court coming to that conclusion in an appropriate case. Everything must depend upon the facts and the context. In this, as in so many other areas of family law, context is everything.

There will, of course, be cases in which either a specific religious belief, or an antipathy to a particular form of religious belief, will entitle a parent to refuse consent to her child’s adoption. Re J (A Minor) (Wardship: Adoption: Custodianship) [1987] 1 FLR 455 is an example. In that case Sheldon J held that a mother was not acting unreasonably in refusing consent to the adoption of her son on a number of grounds, one of which was that she objected to him being adopted by Jehovah’s Witnesses. A similar type of case, and one which on one view is rather closer to the present case, is Re N (A Minor) (Adoption) [1990] 1 FLR 58, where Bush J refused to make an adoption order against the opposition of a Nigerian father who came from a culture where there was no concept of adoption, indeed where adoption was viewed as a restoration of slavery, and where it would be a deep and hurtful blow to him and his family if his daughter was to be adopted. Bush J held that adoption was not in the child’s interests, amongst other reasons because it would not be in her interests for her father to feel the shame and distress that in his culture an adoption order would bring.

In the present case Ms Woolrich on behalf of the local authority marshals powerful arguments in support of her submission that, whether or not the mother’s religious beliefs are in themselves reasonable, she is nonetheless acting unreasonably in relying upon them as a justification for refusing consent to her son’s adoption. She points to the fact that neither Mr and Mrs X nor their friends in their community see any religious objection to adoption. That I accept, but it does not necessarily carry the argument very far. She points to the need to consider the ultimate question within the context of “the current values of our society”, a society which although it is no longer a white Christian Eurocentric culture, having been transformed into a multiracial, multicultural society in which respect is shown for all religious groups, including Islam, is not of course an Islamic society like the society from which the mother and the father originally came. As she points out, and there is, I think, considerable force in the point, the mother and the father decided long ago to make their lives in his country (the point remains valid even if, as I strongly suspect, the decision was in truth that of the father and the mother had little if any say in the matter); S and his siblings were all born in this country and, for good or ill, have all assimilated the local culture and are having to integrate their practice of Islam with Western cultural values; and S himself has been fostered for over two years in a white, non-Islamic household. Reasonable parents of such children, she says, would respect this process of cultural and religious integration. At the end of the day, she says, the mother’s religious convictions have to be placed within the context of the culture in which she has lived for some 25 years and in which her ten children have been raised. In this culture, as Ms Woolrich points out, some practising Muslim families do adopt, so that the fact that worldwide significant numbers of Muslims might be opposed to adoption cannot be determinative.

The hypothetical reasonable parent in the mother’s situation would, says Ms Woolrich, recognise and take into account that the option of returning to his birth family does not exist for S; that there are all the very powerful reasons identified by the guardian as to why adoption is, in truth, in his best interests; and that while long-term fostering might be the preferred ‘orthodox’ Islamic option, there is within our culture and society an alternative Muslim view accepting of adoption. In short, she says, a reasonable parent in the mother’s position, even one holding the mother’s particular religious views, would nonetheless accept that adoption is in the best interests of her English son.

Mr Stonor on behalf of the guardian makes much the same submissions. He accepts, as I do, that the mother’s religious views call for particular consideration but submits that at the end of the day the question is whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of S are sufficiently strong to justify overriding the religious and other views and interests of the mother. He points out that parents can and do object to adoption for a variety of reasons which have nothing to do with religious belief. Whilst objections founded on religious beliefs will, he says, always demand and be afforded respect and sensitive consideration, he questions whether in a secular society they should necessarily carry greater weight than objections which are not so founded or which are founded on a different faith (or a different tradition of the same faith).

I agree with Ms Woolrich and Mr Stonor. The mother’s religious beliefs are in themselves reasonable – that I entirely accept – but she is nonetheless, in all the circumstances of this particular case, acting unreasonably in relying upon them as a justification for refusing consent to her son’s adoption. The mother’s religious views demand respect and call for particular and sensitive consideration, but at the end of the day the question is whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of S are sufficiently strong to justify overriding the religious and other views and interests of the mother. In my judgment they are. A reasonable parent in the mother’s position, even one holding the mother’s particular religious views, would nonetheless accept that adoption is in the best interests of her English son. The mother, in my judgment, is acting unreasonably in taking the other view.

Thus far I have been considering each of Mr Gray’s six points, (a) to (f), separately and largely in isolation. But as Mr Gray correctly points out, I must also consider them together. He accepts that, in considering whether the mother is being unreasonable, she must of course be taken to be endowed with the capacity to recognise the advantages to S of being adopted, but he submits that the various aspects of what he calls her experiences and beliefs must be balanced against this consideration. He accepts that if the court takes the view that any of her beliefs is unreasonable then it may be discounted, but the remaining reasonable beliefs must continue to be weighed against a reasonable parent’s recognition of the advantages of adoption for S. Overall, he submits, the local authority cannot demonstrate that the mother is being unreasonable in withholding her consent.

I do not agree. Whether one takes each of Mr Gray’s points in isolation or whether one takes them together the outcome is the same. The mother, in my judgment, is acting unreasonably in withholding her consent to S’s adoption. I agree with Ms Woolrich and Mr Stonor, and essentially for the reasons they gave.

I have had no separate argument from or on behalf of the father but in the particular circumstances of this case he stands in no better position than the mother to resist adoption. If anything his position is a fortiori, for he has played no part in the proceedings for the best part of two years, he has had nothing whatever to do with S since March 2003 and he has for all practical purposes simply abandoned all responsibility for his children, S included. In my judgment he is quite plainly acting unreasonably in withholding his consent to S’s adoption.

I shall accordingly make the freeing order sought by the local authority. There will in the circumstances be no change in the existing arrangements in relation to contact.