Adoptive parents cannot be forced to provide annual photo of child

16 June 2010 by

Oxfordshire County Council v X & Ors [2010] EWCA Civ 581 (27 May 2010) – read judgment

In ordering adoptive parents to provide an annual photograph of the child to the birth parents, the judge below had erred in failing to accept as reasonable the adoptive parents’ fears, that there was a risk of the placement being identified.

The child (J), had been made the subject of an adoption order when she was four months old, due to the mental illness of her natural mother. The natural mother subsequently applied for an order for the provision of a photograph of J on an annual basis. The adoptive parents, backed by the local authority, objected to the provision of a photograph and contended that they should make available a photograph for viewing at the offices of the local authority.

In this appeal, the adoptive parents argued that the arrangement would be disruptive to the adoptive placement and that there was a risk that if provided with a photograph the natural mother could upload it onto the internet and consequently discover J’s whereabouts. The local authority contended that the judge failed to give sufficient weight to the adoptive parents’ wishes and accordingly failed to give proper consideration to the effect on J’s welfare. The local authority submitted that the judge failed to give sufficient consideration to the risk that the natural mother would seek to identify the placement.

HELD:

Appeal allowed. Although in legal terms the adoptive parents’ wishes could not be determinative, in fact it was “extremely unusual” to make an order with which the adoptive parents were not in agreement. This was not reflected in the judgment at all and, as such the judge had fallen into error. The essential question for the judge was whether the adoptive parents’ fears in relation to the provision of photographs were unreasonable.  The judge was required to consider what was in the best interests of J in line with the Children Act 1989 s.1.

The welfare of such a young child, in the early stages of her adoption, was dependent upon the stability and security of the adoptive family. To undermine that stability by failing to heed their fears that the natural mother might seek to trace J was to damage her welfare. The judge below had not ruled that there was no risk at all; he had simply held that there was a low risk of the natural mother identifying the placement. Accordingly, absent any finding that there was no conceivable risk the fear of the natural parents should have been weighed in the balance and that would have compelled the conclusion that the natural mother should not be given the photographs.

Applying the proper approach as summarised in Re R , the natural mother’s application should have been dismissed because there was no proper basis on which the judge should have made the order. Since the adoption, the natural mother’s parental rights were extinguished. The new parents had parental responsibility and that responsibility should not be usurped by the court.

COMMENT

Human rights are not essential to the determination of this case but the Master of the Rolls, giving the judgment of the court, did give brief consideration to Article 8. In the original application,  the natural father sought to rely upon what he said were the natural parents’ rights under Article 8 of the Convention vis-à-vis J. That argument was accepted by the judge below, who held that the natural parents have what he called more than “residual Article 8 rights” and rights which, moreover, he said entitled them to the order they sought.

It is interesting to speculate what is left of the right to respect for family life once an individual’s parental responsibility has in effect been extinguished by an adoption order (assuming that the latter has fulfilled all the legality, necessity and proportionality requirements of the Convention). Technically – or at least this is what Lord Neuberger concluded – the effect of an adoption order as set out in sections 46 and 67 of the 2002 Act removes the Article 8 rights of the natural parents vis-à-vis a child who is, in law, no longer their child.

But does the finality of an adoption order in technical legal terms override the protection extended by the Convention to what may be called, for want of a better phrase, the undeniable biological state of things? Unfortunately the point was not fully argued out and therefore the Court of Appeal did not make any substantial findings on it, except to make clear that even if the judge below had been correct in assuming that the natural parents had Article 8 rights capable of being engaged in the application before him (and they did not assume, let alone decide, that they did), those rights would not, in their judgment, have sufficed to tip the balance in their favour.

Whether Article 8 rights survive in any form, residual or not, is probably dependent on the availability of post-adoption contact orders. In Re P (Placement Orders: Parental Consent) Wall LJ reviewed the earlier case-law on post-adoption contact in the light of the introduction of the Adoption and Children Act 2002. He concluded:

In section 46(6) of the 2002 Act Parliament has specifically directed the court to consider post adoption contact, and in section 26(5) Parliament has specifically envisaged an application for contact being heard at the same time as an adoption order is applied for. All this leads us to the view that the 2002 Act envisages the court exercising its powers to make contact orders post adoption, where such orders are in the interests of the child concerned.

This does not alter the fact that once an adoption order is made, the natural parent loses the ability to apply as of right as ‘parent or guardian’ for a section 8 order with respect to the child. However, under the Act, any person may apply for leave to apply for a s 8 order, and there does not seem to be any bar to a person who had the care of a child before the adoption order was made making an application for a s 8 contact order if they qualify as a person with whom the child has lived for a period of at least three years during the five years preceding the application, provided that the period did not end more than three months before the contact application (Children Act 1989, Section 10).

The fact that this ability to apply for a contact order applies to “any person” suggests that there is no reason for the continued existence of Article 8 rights; in other words, the natural parents are not in a privileged position compared with any other appropriate person when it comes to post-adoption applications.

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