The Prospective Adopters (AA AND BB) v CC

This is my reserved judgment following the final hearing of the application by AA and BB for an adoption order in respect of DD, which took place on 6 November 2017. At the conclusion of the part of the hearing concerned with that application, I announced my decision that I would make the adoption order sought and that my reasons would follow in writing. I then went on to consider and determine an application for costs which is not the subject of this judgment.

At the hearing, the Applicants were represented by Miss Katy Rensten of Counsel, the Authority by Miss Victoria Roberts of Counsel, DD by Miss Sam Whittam of Counsel and the Guardian represented herself. I am grateful to all for their clear and detailed analysis and submissions.

The adoption application is unusual. DD was born on 20 December 1998 and is of Non UK origin. She is, therefore, 18 years old and will be 19 on 20 December 2017. Her mother is CC, who is also of non UK origin but lives in London. DD’s biological father has not been identified within these proceedings, although it appears that CC may know who he is. However, it appears uncontentious that the biological father has never had parental responsibility for DD or any involvement in her life. AA and BB were DD’s Special Guardians under an order made in the County Court on 24 April 2013 and, apart from a period of three months when she was in her mother’s care, she has lived with them since August 2011, when she came from outside the UK to live with them. The adoption application was issued on 14 December 2016, shortly before DD’s 18^th birthday. The effect of s.49(4) and s.47(9) of the Adoption and Children Act 2002 (“ACA”) is that I may make an order notwithstanding that DD has attained her majority, but any such order must be made before her 19^th birthday.

Upon these proceedings being issued, the Guardian was appointed for DD but it is common ground that DD has capacity. As will be seen below, her views diverge from those of the Guardian and she has therefore been separately represented in these proceedings since 13.10.17

DD supports the application and wishes to be adopted by AA and BB. CC also supports the application, and gave her written consent to the making of an adoption order on 25 November 2016 and, in the statutory form, on 8 September 2017. An Order of District Judge Gibson made on 27 February 2017 (by which time DD was already 18) recites that the judge confirmed at that hearing that the father’s consent to an adoption order was not required.

However, the Authority feels unable to support the application and adopts a neutral position, and the Guardian does not support the application. In summary, in the course of carrying out their Rule 14.11 assessment, the Authority encountered some reluctance on the part of AA to share information and explore the background, in particular in respect of his adult children. On 27 February 2017, the Authority was ordered to prepare an addendum assessment. In the course of that assessment, they interviewed AA’s adult children. The Authority and the Guardian are concerned about the information given by some of those adult children, from whom AA is estranged. The Guardian is also concerned about information she has received from, DD’s psychotherapist. The Authority and the Guardian express concern about the following matters that they consider need to be taken into account in deciding whether or not the adoption order should be made:

Given those concerns, the Authority and the Guardian both draw attention to the lifelong impact of an adoption order on DD’s relationships with her birth mother and birth family, and question whether such an order is necessary and proportionate. In her Analysis, the Guardian specifically refers to the exacting nature of the test for making adoption orders set out in the cases of Re B (a child) [2013] UKSC 33 and Re B-S (children) [2013] EWCA Civ 1146, in the light of which she questions “what benefits such a draconian order may bring for DD” (emphasis added).

Notwithstanding that the above concerns raise factual issues, the adult children of AA were not asked to make witness statements or give oral evidence before me. At the start of the hearing, the parties informed me that nobody wished to cross-examine DD or AA. I understood that Miss Rensten was prepared to cross-examine the Guardian if I thought it necessary. The parties sought my guidance as to whether, as part of my inquisitorial oversight, I wished to hear oral evidence from AA or the Guardian. I considered that nothing would be gained by hearing oral evidence, in circumstances where the concerns of the Authority and the Guardian are founded on information provided by third parties who would not be giving evidence: i.e. on hearsay. It would have been futile to require the Guardian to be cross-examined about the reliability of such hearsay statements, since she could not speak to that, and the weight to be given to those statements was something that could more appropriately be dealt with in submissions. Whilst I could have insisted that AA give oral evidence, nobody wished to cross-examine him and it would potentially have been unfair to insist that he be cross-examined about factual matters founded on hearsay statements, which could not be tested by cross-examining their makers. I was therefore content to allow AA’s statements to stand as evidence in chief without the need for oral evidence. Furthermore, insofar as EE the psychotherapist expressed opinions to the Guardian about DD’s welfare, those opinions are not contained in an expert report, and very little explanation for them is recorded in the Guardian’s Analysis. It is therefore impossible to evaluate them in any reliable way. In those circumstances, the parties invited me to proceed on the basis of the written evidence and reports, taking into account the concerns expressed by the Authority and the Guardian and attributing to them such weight as I think appropriate. The hearing therefore proceeded on the basis of the written evidence and position statements supplemented by oral submissions made by Counsel on behalf of the Applicants, the Authority, and DD, and by the Guardian in person. CC did not attend the hearing, but wrote to the Court on 5 November 2017 stating that she continued to support AA and BB adopting DD.

I have read the position statements of the parties, and the evidence in the hearing Bundle that was provided to me and supplemented by additional documents and evidence that were handed in shortly before the hearing started.

AA is from outside the UK. BB is from a European country. They married in 2008. AA was previously married, from 1972 until 2003, when he divorced his former wife. He has 5 adult children by his former wife. He is estranged from 4 of those children.

CC works as a nanny and has worked in the UK for over 25 years. She has a son, FF, who is now an adult.. She returned to her country of origin with FF during her pregnancy with DD, who was born there. Two months after DD was born, CC returned to the UK leaving the children in the care of her parents. In 2002 or 2003, CC married her current husband. According to the Rule 14.11 report, he is elderly and would not support DD living with them.

DD was brought up in her country of origin until 2011. Her grandmother died when she was 8 years old, after which her grandfather continued to care for her with the support of an uncle. In 2010, he made contact with her via Facebook, it appears using a Facebook pseudonym, albeit he has said that CC was aware of him making contact. In November 2010, he visited DD and FF in their country of origin and, accompanied by their uncle, they stayed with him at a hotel.

DD and FF moved to the UK in August 2011 and stayed with AA and BB under a private family arrangement. They came to the attention of the Authority in November 2011, following which FF returned to his country of origin and DD went to stay with CC for a period of time. However, she returned to live with AA and BB in April 2012, having expressed the wish to do so. In August 2012, following assessments, they were approved as private foster carers. In parallel, the Authority also carried out a Special Guardianship Assessment. As noted above, on 24 April 2013 the County Court made a Special Guardianship Order.

The Rule 14.11 report refers to some difficulties and concerns that the Authority had in the earlier assessments. For example it records that the social worker who carried out a Core Assessment in early 2012 raised concerns regarding a lack of co-operation and “controlling and manipulative behaviour” in relation to the Authority’s involvement. There is a suggestion that, in May 2012, AA and BB asked for their solicitor to attend all home visits and for them to be tape recorded, which the Authority declined, although the report states that AA and BB did then engage in the private fostering assessment. There is also reference to difficulty in obtaining references and family details for the purposes of the Special Guardianship Assessment; it is said that the Authority was unable to complete that assessment, which was subsequently completed by a different authority where AA and BB had moved to be nearer to DD’s school. On the other hand, that other authority reported that AA and BB had engaged and worked with them for the purposes of the assessment.

To be fair, the Rule 14.11 report also records that AA and BB felt they had not been fairly treated by the Authority in relation to the private fostering and Special Guardianship assessments, they made a number of complaints through their solicitors regarding the Authority’s handling of matter, and there appears to have been an adversarial relationship between them and the social workers employed by the Authority. On the limited evidence available to me, it is impossible to come to any conclusions about where the fault for this lies, but whatever the concerns were during that period of assessment, the Court was clearly satisfied that it was appropriate to make the Special Guardianship Order.

The effect of that order was to confer parental responsibility for DD on AA and BB. She has remained in their care since that order was made, and they retained their parental responsibility until she attained her majority. It appears common ground that, whilst DD has maintained her relationship with CC, it is AA and BB who have met all of her basic, day to day needs, cared for her, and exercised parental responsibility for her during that time. In her own statement, dated 24 October 2017, she refers to AA as “Dad” and to CC as “Mom”; she refers to BB by her forename. She says that she would feel proud to be adopted by them and “it would be a true reflection of my family life and of the stable home I have with [them] and my sense of belonging there. It makes legal the reality of how I feel.”

AA and BB notified the Authority of their intention to adopt DD on 17 June 2016. In their first statement dated 12 December 2016, they say that DD had been asking them to adopt her for some time but they had waited until the last minute to be sure that this is what she wants. The Rule 14.11 report states that CC reported that DD had wanted AA and BB to adopt her for some time and that CC had wished her to wait until she was over 16 years old to make that decision. DD was seen on 3 August 2016 alone, on 28 November 2016 with AA and BB for a family session, and on a number of other shorter occasions including 17 February 2017. On each occasion, adoption and its potential implications were discussed, and DD stated that she wished to be adopted by AA and BB as she wished to feel a belonging to the family and support her identity. She felt this would support her emotional wellbeing. She intended to continue to have contact with her birth family. AA and BB encouraged her to see CC and will continue to do so. According to their first statement dated 12 December 2016, DD visited her family in their country of origin during the summer of 2016, but asked to return home early; they suggest this was because she did not feel at home there, having absorbed British culture so much.

Unfortunately, DD has suffered from poor mental/ psychological health. Instances of this are referred to in the Rule 14.11 report.

The Rule 14.11 assessment states that a report was requested from DD’s therapists GG and HH which stated:

“The adoption is a vital process for DD as she longs for her identity and security, she does not know who her biological father is and the legalizing of AA as ‘dad’ is something she really wants.

We do not imagine all the issues will be cleared once the papers are signed but believe adoption will provide DD with a more secure basis on which to move forward.”

The written evidence contains the following letters from DD’s doctors and therapists:

So far as that written evidence is concerned, it appears that DD’s doctors and other therapists support the adoption and her psychotherapist and psychiatrist link it to her wellbeing and mental health. That said, as mentioned above, the Guardian has received information from EE which suggests that the view expressed in her letter may need to be qualified. I address this further below.

According to the Applicants’ statement dated October 2017, on 15 August 2017 DD was taken to a clinic outside the UK, which specialises in eating disorders. However, she discharged herself and flew back to the UK on 22 August 2017. They state that, since her return, she has made significant progress in respect of her thought processes, decision making and engagement with her GP.

The initial Rule 14.11 assessment noted that there were complexities in relation to the adoption application, in particular that AA and BB “have not fully provided information that would be expected during an adoption assessment, namely ex partner and child references. In general, an adoption assessment would not be pursued under these situations.” Nevertheless, the assessment went on to recommend that, on balance the Adoption Order should be made “as DD is now an adult and clearly expressing her wish to be adopted. DD has resided with the couple since 2011 and they wish to continue caring for her. Therefore, it is my view that DD’s wishes and feelings need to be respected in relation to the Adoption Order and it is my hope that this provides her with the security that she wishes.”

As noted above, on 27 February 2017, the Authority was ordered to carry out an addendum assessment. That assessment, dated 6 April 2017 (but only disclosed to the parties following a hearing on 8 August 2017) records that the Authority had been able to make contact with AA’s 4 estranged children, who I shall refer to as MA, PA, GA and JA, and obtained information which I summarise below:

The addendum assessment recorded that the gist of the above information was that “Generally, AA was portrayed as a very difficult person who these adults would have concerns spending time with or allowing their children to do so. Furthermore, in light of DD ’s diagnosis of bulimia, the information given by GA is concerning, especially as the background to DD’s bulimia is unclear.” However, the assessment also fairly noted “that these discussions have taken place within a context of hostility between the siblings and their father”. At the time the assessment was written, the views of AA’s adult children had not been disclosed to him as they had only discussed them with the Authority on the basis that they would remain confidential, and AA had not wished to share the reasons for the conflict with his children: he had said he would do so if it was necessary for the adoption application, otherwise he did not wish to get embroiled in family arguments again.

The addendum assessment therefore concluded: “This is a very complex family situation and it has been difficult to ascertain what is in the best interests of DD. The information provided by PA and GA raises concerns regarding their experiences of being parented by AA and the long term impact this has had on them, in particular GA. However, DD is an 18 year old and has clearly stated that she wishes to be adopted by AA and BB.” No recommendation as such was contained in the addendum assessment, but the Authority made it known in their position statement for this hearing that they adopted a neutral stance.

In the event, AA and BB have chosen not to give detailed evidence in response to the information provided by PA and GA. In their second statement they say only: “…we acknowledge that the breakdown of the relationship between AA and his adult children … is a great sadness to us. We hope for some resolution and perhaps reconciliation in the future. We don’t agree with what [they] reportedly say. Specifically no law suits were ever filed by [AA] or any entity he was or is connected with for any reason towards his children or their mother.”

They go on to say: “We respectfully seek the making of an Adoption Order in respect of DD as she wishes to become daughter in law as well as fact. She has been cared for by us, and lived with us, for the past 6 years which is over a third of her lifespan. We believe that DD’s welfare demands that her need for belonging and identity as our daughter is recognised formally.”

The Guardian’s report is dated 11^th October 2017. As I have noted above, the Guardian does not recommend the making of an adoption order, but instead recommends that if DD wishes to change her name by deed poll, she is at liberty to do so.

The Guardian states that the information provided by PA and GA is very concerning. She says that “it is evident that to these adults their memories while in his care can only be described as extremely emotionally abusive. The fact that four of AA ’s adult children have taken it upon themselves to sever all links with him over such a significant length of time, in my opinion speaks volumes.” It worries her that GA recalls being taken and, “left with an unknown adult and having to attend sessions with the nutritionist over the summer including her body fat being measured with calipers. GA describes this as being extremely traumatic and leads me to share the Authority’s concerns regarding this information which in part reflect DD’s eating disorder.” She refers to the adult children’s description of their father as a “very difficult and complex person who they want nothing to do with”, to the fact that they question why anyone would want to adopt an 18 year old and their use of the words “dubious”, “bizarre” and “very unusual” to describe such an adoption, to their references to AA as being narcissistic, and using people to draw out what he wants from them, and to their receiving “a high level of professional support…in every effort to move on from their years of abuse they suffered while in their fathers care.” She expresses doubt that the addendum Rule 14.11 assessment “would have any influence over DD in that she would question the impact AA’s parenting style had on his birth children. I am of the opinion that his influence on her is so strong that she is unlikely to question anything AA says or does.”

The Guardian expresses other concerns. In relation to the process leading to the Special Guardianship Order, she speculates as to whether the difference in opinion between AA and BB in relation to the assessments “may or may not have influence (sic) AA and BB moving with DD to the [other authority] however the Special Guardianship assessment was transferred and later concluded with a positive outcome in April 2013. The assessment is lacking in substance and unusually failed to seek any of the views of AA’s five adult birth children” (emphasis added).

The Guardian states that she has no doubt that CC “knows the true paternity of DD’s father however her reluctance to disclose this information continues to cause DD a very high level of anxiety. I understand from EE that DD is ‘desperate to find out who her father is’ and information regarding CC has left DD believing that her mother will lie about everything.”

The Guardian has spoken to EE, and records a number of concerns arising out of what EE told her. These include concerns that AA has not been forthcoming in providing EE with information she has requested. EE considers the risk of DD having a relapse in her eating disorder as being very high. The Guardian states: “In speaking with EE it concerns me that despite DD saying she wants to be adopted it is not something that has appeared high on her agenda of things that she chose to discuss. EE advised me that both she and the psychiatrist have questioned why an 18 year old would want to be adopted. She spoke of remaining unclear with regard to what DD actually wanted as she is so influenced by AA.” The Guardian states that EE described DD’s relationship with AA as being “very unhealthy” and went on to say that “she believed DD has a sense of loyalty towards AA however professionally she had a high level of concern regarding AA’s control over DD, going so far as questioning Stockholm syndrome.” During the oral submissions I was told that the reference to Stockholm syndrome was a mistake, and EE or the Guardian intended to refer to another syndrome, which was not specifically identified in the submissions.

In her analysis of the advantages and disadvantages of adoption, whilst recognising the positive impact that an adoption order may have on DD’s wellbeing, the Guardian states, amongst other things, “I am not convinced this is in DD’s best interest and may impact in the longer term on her emotional wellbeing when reality hits that nothing has changed.” She suggests the order would have limited benefits given DD’s age and that she continues to question why AA would apply for “this draconian order at such a late stage in DD’s adolescence years.”

In her conclusions, the Guardian refers to the exacting test set out in Re B and Re B-S, about which she says: “Such terminology and the facts of this case lead me to question what benefits such a draconian order may bring for DD”. She points out that, although DD is 18 years old, she is still a vulnerable young adult with a long history of complex difficulties. The need to sever her legal relationship with her birth mother and brother “…to enable AA and BB to legally adopt an 18 year old is questionable when reflecting on the history of this case, particularly AA’s relationship with his own birth children and the reported abuse they suffered while in his care. I therefore cannot recommend the court make the requested adoption order…”

In her statement, DD takes issues with some of the information and opinions contained in the Guardian’s analysis. She says she found it difficult to understand the information given by the adult children but understands that AA is estranged from them due to past conflict. She refutes any suggestion that she has been “brainwashed” by AA. She says that she is able to disagree with him and, if they disagree, he respects what she has to say and lets her speak her mind. He is protective of her but also supportive of what she tries to do. She gives examples of ways in which she has taken her own decisions contrary to the views of AA. She does not share his views about Christianity. It was her decision to discharge herself from the clinic, contrary to his wishes. She says she now knows what Stockholm syndrome is; she denies that she has this syndrome and says she regards the suggestion as ridiculous. She also disagrees that she is desperate to find out who her biological father is and says that has been misreported by EE. She gives evidence about the steps she is taking to recover from bulimia, including participation in a 12 step programme. She says that she has always maintained a good relationship with CC, and AA and BB have supported this. An adoption order will not change her practical relationship with CC, but she understands it will change her legal relationship.

I am grateful to the Guardian for ventilating her concerns in her report and, as I said at the hearing, I consider she acted properly in doing so, her role being to bring an independent, professional view to bear on the welfare issues raised by this application. However, as seen below, I consider that her references to Re B and Re B-S, and the draconian nature of an adoption order, are incorrect in this case.

Furthermore, whilst I acknowledge that the Guardian may have felt hampered by the decision of AA not to provide his own account of the estrangement with his adult children, or to respond to their allegations in any detail, and this may have aroused concern in itself, I consider that some of the negative inferences and opinions set out in her report go further than is warranted by the evidence, and are not balanced by considering the alternative inferences and explanations. Specifically:

Whilst the Guardian reports the views of EE, those views are hearsay and they appear to be at odds with the letter from EE referred to above. It also appears that the reference to Stockholm syndrome is in fact a mistake; it would in any event be an extreme view. Furthermore, as pointed out earlier, the opinions attributed to EE are not set out in an expert report. That means that the evidence and reasoning to support them are not explained and the opinions cannot be evaluated with any confidence. In the circumstances, I am unable to give significant weight to those views.

On the other hand, whatever the reasons for the breakdown in AA’s relationship with his adult children, there is no positive evidence to suggest that he has emotionally abused DD; such evidence as there is consists of the hearsay reports of what EE has said, and the speculative suggestion that DD’s eating disorder and other mental health issues have been caused by emotional abuse. However, it is notable that, although a number of referrals were made to the Authority in relation to DD’s mental health and well-being, the Authority did not think it necessary to intervene, because they were satisfied with the support plan AA and BB had in place and that they were adequately safeguarding DD; therefore, they did not find evidence of abuse or neglect that would justify their intervention.

Therefore, whilst it was appropriate for the Guardian to draw attention to the concerns she has raised, I consider that the views she expresses are extreme ones that do not take a balanced approach to the evidence. Furthermore, in my view, the Guardian’s analysis does not adequately take into account the current status quo: AA and BB have been caring for DD for most of the last 6 years, they had and were exercising parental responsibility for her until she turned 18, she regards them as her parents, she will continue to reside with them for the foreseeable future, and they will continue to support her in the future. The Guardian’s statement that it is questionable whether DD’s relationship with her birth family should be severed “…to enable AA and BB to legally adopt an 18 year old…” does not, in my view, do justice to the circumstances of this case. The purpose of the application is not to enable them to adopt “an 18 year old”, but to enable them to adopt DD, who they have cared for since 2011 and is already part of their family; furthermore, seen from DD’s point of view, the purpose of the application is to enable her to be adopted and thereby legally integrated the family she already views as her real family. As Miss Roberts recognised when making submissions on behalf of the Authority, whilst the Guardian’s concerns might have been more significant if DD was still a young child, their importance is significantly diminished in the circumstances that now exist.

DD was present at court. Miss Whittam informed me that she had come to court to present her application actively, because she feels strongly and passionately about it. Her wishes and feelings have been consistent for some time. The evidence in the Rule 14.11 report and the Guardian’s Analysis show that she is an articulate and reflective young woman whose competence is not in doubt. She was acutely aware of the instability in her early years but AA (who she called “Dad”) and BB had given her that stability. She wanted to express to the world who her family are and would not be able to do that without an adoption order because AA and BB would not be her legal parents. An adoption order would reflect the reality of her experience. She did not want to miss the opportunity she now had to give legal effect to her relationship with them. She wished to continue to have a relationship with CC and her birth family, saw no difficulty with that and said that AA and BB had supported it. She also saw the benefit of being able to embrace the wider family of AA and BB in their respective countries of origin. According to the Rule 14.11 Report, she has consistently said to the Social Worker since August 2016 that she wished to be adopted, and CC reported that she has expressed that wish since before she was 16, which is consistent with the evidence of AA and BB.

When I put to Miss Whittam the possibility implied by the Guardian that DD might later regret the making of an adoption order, Miss Whittam informed me on instructions that DD had had thorough discussions with her advisers about the consequences of an adoption order and understood what was involved in severing her ties with her birth family and making her legally part of the family of AA and BB. Nevertheless, she wished me to make the order.

As set out above CC has consented to the adoption order and DJ Gibson found that the consent of DD’s biological father was not required. The requirements of s.47 (1) and (2) of the Adoption and Children Act 2002 (“ACA”) are therefore satisfied.

S. 49(5) ACA provides:

“References in this Act to a child in connection with any proceedings (whether or not concluded) for adoption…include a person who has attained the age of 18 years before the proceedings are concluded”.

Therefore, although DD is no longer a child, having attained her majority, she is included within the meaning of the word “child” when it is used in s. 1(1) ACA, which provides that subsections (2) to (4) “apply whenever a court…is coming to a decision relating to the adoption of a child.”

The consequence of this is that, even though DD supports the making of the adoption order, I must decide this application having regard to the welfare requirements of s.1 ACA. Therefore:

These requirements have to be applied and appropriately adapted to the particular circumstances of any case; specifically, in this case:

As I have mentioned above, the Guardian in her Analysis has referred to the exacting test set out in Re B and Re B-S, quoting well known phrases from those authorities which describe an adoption order as “a very extreme thing, a last resort”, “the most extreme option”, “a last resort where all else has failed”, to be made only “in exceptional circumstances…where nothing else will do” and as “draconian”. An adoption order is, of course, a very significant order to make as it brings about a permanent, lifelong change in the child’s legal relationships and legal identity. However, I consider that the Guardian’s application of Re B and Re B-S to the facts of this case is mistaken.

Miss Rensten referred me to Re P (A Child) [2014] EWCA Civ 1174, a decision of the Court of Appeal in a case involving step-parent adoption. As that case makes clear, whilst the terms of the statutory provisions applying to each adoption application are the same, the manner in which they are to be applied may differ depending on the nature of the application. In the leading judgment, with which Briggs LJ and Moore-Bick LJ agreed, McFarlane LJ explained that:

“[46] In an adoption application the key to the approach both to evaluating the needs of a child’s welfare throughout his life and to dispensing with parental consent is proportionality. The strong statements made…in Re B and taken up by…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 on the facts of each case and the judicial assessment of proportionality.” (Emphasis added).

After referring to earlier Strasbourg and English authorities, McFarlane LJ went on to say:

“[61] …the context of the particular case will be of particular significance: where on the spectrum of intervention by adoption does this case sit? In broad terms the spectrum will run from a fully opposed, public law ‘stranger’ adoption at one extreme, to an adoption within the child’s existing ‘de facto’ family unit, which is made with the consent of both parents. In between there will be step-parent adoptions which are actively opposed by ‘Parent B’, who is himself fully involved in the life of his child, or step-parent adoptions…where Parent B, whilst not consenting, has played no active parental role for some years

[62] The reason why context is important is that, in each case, it is necessary to evaluate the proportionality of the intervention in family life that is being proposed. For the child, and for the child’s welfare throughout his life, there will be a qualitative difference between adoption by strangers, with no continuing contact or legal relationship with any member of the birth family, on the one hand, and an adoption order which simply reflects in legal terms the reality in which the child’s family life and relationships have been conducted for some significant time. In ECHR terms, no adoption order will be justified in terms of its interference with family life rights unless it is ‘necessary’ and ‘proportionate’, but in assessing those factors the degree to which there is an interference will be relevant.” (Emphasis added).

In Re P (A Child), the Court of Appeal allowed the appeal against the county court judge’s refusal to make a step-parent adoption order. Miss Rensten submitted that I should apply “the case-law in respect of step-parent adoptions”, either because the applicants are already non-biological parents or by analogy of circumstances.

I do not think it accurate to describe the above dicta in Re P (a Child) in terms of a separate body of case-law applying to step-parent adoptions. In my judgment, it is clear from the way McFarlane LJ expressed himself in the passages cited above that his dicta are not confined to step-parent adoptions but are intended to be of general application. Each case must be decided on its own facts and in its own context. Adoption applications lie within a spectrum of severity of interference. The Court’s assessment of welfare and proportionality must therefore reflect where within the spectrum a particular application lies. Re B and Re B-S were concerned with adoption orders that were opposed by the parents; those cases imposed exacting requirements precisely because such orders lie within the most severe part of the spectrum of the state’s interference with family life and are justifiably described as “draconian”.

However, whilst I accept that I should take into account the welfare concerns raised by the Guardian (subject to deciding what weight it is appropriate to give them within the overall welfare balance), I cannot accept that the order sought in this case can properly be described as draconian. CC has consented to the adoption; DD, who is now an adult, wishes the order to be made; AA and BB have cared for DD since she was 13 years old and were her Special Guardians for the last 3 ½ years of her minority; I accept that they have been, and are, highly committed to caring for and supporting her, and it is clear from the evidence that they regard themselves, and DD regards them, as being in substance her parents; I accept Miss Rensten’s submissions that they are her psychological parents; an adoption order in this case would thus give effect to the existing status quo that they regard themselves as family members in a parent/ child relationship.

It is difficult to think of a context that could be more different from the context in Re B and Re B-S. Indeed, when Miss Roberts was addressing me on the need to consider whether an adoption order in this case was a proportionate interference under Article 8, I was struggling to understand how, in this case, the order could be an interference with the right to respect for the family life of CC and DD in anything other than a hypothetical sense, given that they both agree to the order being made; Miss Rensten submitted that there is no infringement of DD’s rights in this case. However, assuming that an order in these circumstances would interfere with their Article 8 rights, the interference clearly lies at the polar opposite of the spectrum from the interference referred to in Re B and Re B-S, and the requirements of necessity and proportionality must be assessed accordingly.

There is no legal entitlement to adopt or to be adopted, and I may therefore have gone too far when I suggested to Miss Roberts, during her submissions, that DD’s Article 8 rights might include a right to self-determination: i.e. to decide for herself whether she should be made legally a member of the family of which she is de facto already a member. On the other hand, Miss Rensten submitted that to treat AA and BB as other than parents, or to introduce a hierarchy between biological and psychological parenting, would be to discriminate against them in relation to their Article 8 rights, contrary to Article 14 of the Convention, and they should therefore be treated as DD’s de facto parents. As set out above, I agree that they have become her psychological and de facto parents; but the relevant provisions of the ACA necessarily distinguish between (biological) parents and non-parents, because the latter need the court’s approval to become legal parents by adoption. I consider the answer to Miss Rensten’s submission is that, as set out above, the court must properly reflect the context of the case in its assessment of welfare and proportionality; provided it does so, I do not consider that Article 14 is engaged. However, I accept that the Article 8 rights of DD, AA and BB require me to take into account their de facto relationship, and their desire to give legal effect to that relationship, in my analysis of the requirements of welfare and proportionality in this case.

In her written submissions, Miss Rensten questioned the role of the Guardian in this case, suggesting that, as DD is a competent adult, she did not need a guardian ad litem and furthermore should be free to determine for herself where her best interests lie. However, DD was separately represented and nobody applied for the Guardian to be discharged. Therefore, I did not have to determine the technical issue as to whether the involvement of the Guardian was still required.

Related to that submission, Miss Rensten submitted (with the support of Miss Whittam) that DD’s wishes should be determinative, relying on the following passage from paragraph 67 of the judgment of McFarlane LJ in Re P (A Child):

“…The finding that, as a matter of day to day existence, A’s family life would continue in much the same way and that there were other routes by which Mr TMI might gain parental responsibility, failed to engage with the benefit that adoption would bring by marrying up the legal relationships with the ‘de facto’ relationships as they had become established within this small family unit. In almost every way Mr. TMI had become A’s and D’s father. The making of an adoption order would confirm that status as a matter of law. It would also render A and D full siblings in the eyes of the law (not a factor considered by the judge in his analysis). It was the outcome that A firmly wished for. These were important, I would say crucial and determinative, matters on the facts of this case. Only adoption could achieve such an (sic) result…”

In my judgment, McFarlane LJ was there saying that a number of matters, which he set out, were crucial and determinative factors in favour of making an adoption order. Those factors all related in some way to the benefits that an adoption order would bring by harmonising the child’s legal and de facto family life. Very similar factors exist in this case, and, as will be seen below, I think those factors together with DD’s wishes are decisive in the balance on the facts of this case. But, in my view, McFarlane LJ was there dealing with the balance of welfare in the circumstances of the case before him, not laying down a principle of wider application. Furthermore, it was the combination of factors, not just A’s wishes and feelings, that McFarlane LJ found to be crucial and determinative. I think it is going too far to suggest that the passage cited supports the proposition that DD’s wishes and feelings should be determinative in this case or that I can ignore the other factors in the welfare checklist. This is an unusual case, in which the statute provides that DD falls within the definition of a child for the purposes of s.1, and I am therefore required to consider all of the welfare requirements in that section, not just DD’s wishes although, as set out below, they should be given substantial weight given her age and competence. As I have said above, I am grateful to the Guardian for her assistance, and I have considered the countervailing welfare issues she has raised, although as will already be apparent, I have disagreed with her analysis and recommendation.

I shall briefly summarise the factors that s.1(4) of the ACA requires me to take into account:

As in Re P (a child), an adoption order would “marry up” DD’s legal relationship with her de facto family relationship: the carers that she regards as her parents would become her legal parents. As I have recognised above, any consideration of the Article 8 rights that operate in this case must take into account the reality of the existing family relationships and desire of DD, AA and BB, consented to by CC, to give legal effect to their relationship. Although parental responsibility is no longer an issue, and an adoption order will not bring with it the benefit of conferring parental responsibility, the legal harmonisation of DD’s de facto relationship with AA and BB will nonetheless have important, lifelong effects. The Guardian suggests that DD could change her name by deed poll, but that will not alter her legal relationship to AA and BB: an adoption order is the only way in which the de facto parent-child relationship can be legally confirmed. The letters from DD’s doctors and therapists referred to in paragraph 20 above all suggest that there may be welfare benefits for DD from the making of an adoption order. The welfare factors set out in the foregoing section of this Judgment generally suggest that DD’s welfare would be served by the making of an adoption order.

In the circumstances, whereas the Guardian questions why an order should be made, I find myself asking the opposite question: why should an order not be made in this case? One reason suggested by the Guardian is that, contrary to the expectations of her doctors and therapists, the fact of adoption may not have any psychological benefit for DD and “may impact in the longer term on her emotional wellbeing when reality hits that nothing has changed.” Of course, it is not possible to predict with certainty whether or not the fact of adoption will bring the psychological benefits anticipated by DD’s doctors and therapists. The Guardian recognised that adoption may bring the benefits hoped for by DD and her therapists. However, it may turn out that DD’s daily reality will not change, and this will have an adverse impact on her. This raises the possibility that DD may, in future, regret the making of the adoption order. However, as set out above, the evidence shows that DD has consistently expressed her wishes and feelings for some time. When I put to Miss Whittam the possibility of later regret, she informed me that DD understood what was involved in an adoption order. Nevertheless, she wished me to make the order.

As set out above, my paramount consideration is DD’s welfare throughout her life, but in this case that necessarily means her adult life, as she has now attained her majority. That is a significant consideration. Whereas a young child is completely dependent on her adult carers to meet her needs, help her to form and maintain important relationships, and take the important decisions that will determine her future, as an adult DD is now responsible for these things. She can expect to be guided by her parents, but she is legally responsible for the choices she makes, and the inherently unpredictable, short and long term consequences of those choices. She has already formed important relationships with her birth family and with AA and BB. She is entitled to decide for herself what is in her best interests, how she wishes to meet her physical and emotional needs, and how she forms and carries on important relationships. Insofar as it is up to her, she can decide how closely she wishes to maintain her day to day relationship with her biological mother and family, and with AA and BB, and with others who are or who become important to her. She is now entitled to marry, and thereby to alter her legal relationship with the person who becomes her spouse.

An analogy with marriage should not be pressed too far; whilst there is, within the law, a great deal of freedom to marry, there is no equivalent right or freedom to be adopted. Furthermore, a marriage may be dissolved, but adoption involves a permanent, lifelong change in legal identity. The requirement to consider the child’s welfare “throughout his life” reflects the fact that adoption involves a permanent change in the child’s legal identity, severing their legal relationship with their birth family and grafting them legally onto their adoptive family. However, marriage at least provides an illustration of the freedom DD has, as an adult, to choose to form what is a very significant legal as well as personal relationship.

The above considerations suggest to me that very great weight should be given in the welfare balance to DD’s wishes and feelings, notwithstanding the possibility raised by the Guardian that DD will be disappointed to find that daily reality does not change, and may even regret the making of the order. In short, significant respect should be given to the fact that she is now an autonomous person, able to take responsibility for her own decisions and the way in which those decisions may shape her future.

I consider that the welfare concerns raised by the Guardian do not outweigh the factors I have referred to at paragraphs 53 and 60 above and DD’s wishes and feelings, which I consider to be the determinative considerations in this case. An adoption order is proportionate in the circumstances of this case.

For the reasons set out above, I therefore allowed the application and made the adoption order sought by AA and BB.