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Cite as: [2008] ECHR 969
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23 September 2008
FOURTH SECTION
Application no.
35348/06
by R. and H.
against the United Kingdom
lodged on
21 August 2006
STATEMENT OF FACTS
THE FACTS
The applicants, R. and H., are British nationals who were born in 1962 and 1971 respectively and live in Northern Ireland. They are represented before the Court by Mr P. Sheridan, a lawyer practising in Downpatrick, Northern Ireland with McEvoy Sheridan Solicitors.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. The “freeing order” proceedings
The applicants are the biological parents of a child, N. The first applicant, R., is the child’s father; the second applicant, H., is her mother. The second applicant has three other children, H.H., P. and T., who were born in 1989, 1991 and 1996 respectively. Full care orders were made in respect of H.H., P. and T. in 2001.
The second applicant has a long history of alcohol problems and has experienced various periods of stability and sobriety followed by periods of abuse of alcohol.
When N. was born in 2002 she was removed at birth and the second applicant was admitted to an addictions centre where she remained for approximately one month. Both applicants attended a parenting centre with N. in June 2002 for assessment purposes and they take the view that the assessment reports were positive.
In August 2002, the applicants were allowed to take N. home. Further reports were also positive until March 2003 when H.H and P. came home for contact visits and then refused to leave. The second applicant started drinking again. She asked for help and N. was removed by social workers from the Down Lisburn Health and Social Services Trust (“the Trust”) on a voluntary basis and placed with foster carers.
On 7 July 2003, the Trust was granted an interim care order in respect of N. On 17 July 2003, at a review attended by the applicants, the Trust decided that N.’s case should be referred to the Trust’s Permanency Panel. The second applicant had stopped drinking at this time.
On 20 August 2003, the Trust’s Permanency Panel decided to refer the case to the Trust’s Adoption Panel and on 11 December 2003, the Adoption Panel recommended the adoption of N.
On an unspecified date, N.’s maternal grandmother applied for a residence order in respect of N. and her sister T. Also on an unspecified date, the Trust applied for a care order in respect of N. The care plan, which was submitted by the Trust with its application for the care order, envisaged that N. would remain in the care of her short-term foster parents pending an application to the High Court to free her for adoption.
The applications were heard together. In his judgment of 30 July 2004, the Family Judge first considered whether it was possible to make no order in favour of either the maternal grandmother or the Trust, the effect of which would be to return N. to her parents. In concluding that this was not an option, he found that while the second applicant, when sober, provided adequate and appropriate parenting, he did not believe that on the balance of probabilities she would remain abstinent. The first applicant would not provide adequate protection for N. in such an event and there was the further prospect of domestic violence by the first applicant towards the second applicant.
The Family Judge then dismissed the application by N.’s grandmother for residence orders in respect of N. and her sister and made a full care order in respect of N. in favour of the Trust. On the basis of expert evidence recommending three to four annual face-to-face meetings between N. and her parents in the event of her adoption, the judge approved the Trust’s plan to reduce contact gradually, from twice a week with the applicants, once a week with the whole family and once a month with her siblings only, to one meeting a month.
On 14 September 2004, the Trust applied to the High Court for a “freeing order” in respect of N., seeking to have the consent of the applicants dispensed with on the ground that they were withholding their consent unreasonably. The application was heard over seven days between 25 January 2005 and 14 April 2005. It appears from the domestic decisions as submitted by the applicants that the Trust made no attempts to find prospective adopters in that time since it was not its policy to do so until a freeing order had been made.
The High Court heard expert evidence from a professor of social work, Professor John Triseliotis, on two separate days. On the first day, Professor Triseliotis stated that he disagreed with the Trust’s plans for no contact after the adoption. There could be no question of post-adoption contact if the applicants did not support the adoption but their opposition to adoption did not mean that they would undermine the placement if an order was made. He further stated that the applicants had to be judged after the court had made its decision.
Before Professor Triseliotis could finish his evidence, a senior social worker gave evidence for the Trust stating that the Trust had initially been opposed to direct contact because of the parents’ hostility, but having heard Professor Triseliotis’ evidence, they were prepared to look for prospective adopters who would meet N.’s need for continued contact with the applicants. However, they could not guarantee to find such adopters or that contact would be workable.
When giving evidence for the second time, Professor Triseliotis accepted that if every effort was made over a period of six months to find suitable adopters who would agree to direct contact, but none could be found, he would “go for adoption but with some regret that an adoptive parent would be so exclusive”.
In its judgment of 31 May 2005, the High Court concluded that adoption was in N.’s best interests and made a freeing order. The trial judge accepted that there was no realistic possibility of the second applicant remaining abstinent from alcohol during N.’s childhood. After considering the relevant case-law of this Court and the domestic courts on adoption and Article 8 of the Convention, the trial judge stated that he was satisfied that adoption was in the best interests of N. He then considered whether the Trust had satisfied him on the balance of probabilities that each parent was unreasonably withholding his or her consent. He rejected the argument that a reasonable parent would be justified in withholding consent until they could be assured that any prospective adoptive parents would agree to post-adoption contact and also rejected their argument that the Trust should have taken steps to identify such a couple before making the application for a freeing order. He stated:
“I am satisfied that the need for adoption is so pressing that whilst it would be preferable that some limited measure of post adoption contact should be established if possible nonetheless adoption must proceed even if this cannot be achieved. Otherwise both parents could operate a veto on adoption by behaving so badly that no one would agree to post adoption contact....I share the view of Professor Triseliotis that if all reasonable efforts to find a couple who will embrace post adoption contact fail then the circumstances of the historical events of the past still make it imperative that the adoption should proceed. Any reasonable parent in my view would readily understand that. This is not inconsistent with Article 8 of the ECHR but rather a careful consideration of the rights of this child as well as the rights of the adults.”
Having reached the conclusion that the applicants’ consent could be dispensed with on the ground that it was unreasonably withheld, the trial judge added:
“Whilst it is inappropriate for me to look at the question of contact post adoption until this child comes before the court for adoption, I feel it is appropriate that I should say that I accept entirely the view expressed by Professor Triseliotis that it is important that if at all possible this child should have the benefit of continued contact with both parents at the frequency suggested by Professor Triseliotis. . . . If these birth parents can accept the new position and help this child to settle down without undermining the placement, I believe this can be of great assistance to this child now and in the future. . . . I also sincerely hope that the prospective adoptive parents when they are chosen will be carefully counselled as to the views of Professor Triseliotis concerning the benefits of post adoption contact but obviously if after all reasonable efforts have been made by the Trust for a period of six months or so, and no such couple can be found, then I am of the opinion that the benefits of adoption will outweigh the benefits of post adoption contact....I am satisfied that a freeing order in this case is a proportionate response to the legitimate aim of ensuring the welfare of this child. I have sought to balance the Article 8 rights of both parents, reminded myself that this draconian remedy should only be resorted to where no alternative avenue is open and where the interest of the child clearly requires it.”
The applicants appealed to the Court of Appeal in Northern Ireland. On 22 November 2005, the Court of Appeal refused the appeal by a majority. All three judges expressed disagreement with certain of the judge’s findings, in particular his view that there was no hope of the mother remaining abstinent. However, the majority did not consider that he was plainly wrong in finding that freeing N. for adoption was in her interest.
Lord Justice Nicholson considered that the Trust should have been required to provide evidence as to the availability of prospective adopting parents who would permit direct contact with supportive birth parents. Nevertheless, he upheld the view of the trial judge that reasonable parents would accept that if prospective adopters could not be found who would permit contact, N. should still be adopted. Lord Justice Campbell, concurring, found that when the question of contact was a finely balanced judgment, the question was whether the advantages of adoption to the welfare of N. were sufficiently strong as to justify overriding the views of the applicants. The trial judge had been satisfied that the need for adoption was so pressing that whilst it would be preferable to have some limited measure of post-adoption contact, nonetheless adoption had to proceed even if this could not be achieved. The reasonable parent, faced with this decision and with the welfare of N. in mind, would be driven to this conclusion.
Lord Justice Shiel, dissenting, found that the applicants could not be said to be withholding their consent unreasonably. The evidence of Professor Triseliotis meant it was a finely balanced judgment as to whether to free N. for adoption and there had been a “very marked improvement” in the personal circumstances of the applicants prior to the High Court judgment.
The applicants appealed to the House of Lords. On 12 July 2006, the House of Lords (by a majority of four to one, Baroness Hale of Richmond dissenting) rejected the applicants’ appeal. Lord Carswell (with whom Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry and Lord Walker of Gestingthorpe agreed) stated that he agreed with the trial judge that the Trust’s response had been proportionate in the pursuit of the legitimate aim of protecting the welfare and interests of the child. In response to the applicants’ argument that the trial judge could not correctly hold that the withholding of agreement was unreasonable when it was not known whether post-adoption contact could be arranged, Lord Carswell stated:
“The availability of post-adoption contact is, of course, a relevant factor to be taken into account in deciding whether to dispense with the parents’ agreement and make a freeing order, and the necessity to ascertain what and how much contact can be arranged will vary from case to case. But evidence on that topic cannot be regarded as a condition which is in law a sine qua non, requiring to be satisfied before the judge can proceed.... [counsel for H., the second applicant] put the argument, as I understand his submissions, in a modified form, that the availability of post-adoption contact is a factor which ranks so high in importance that unless there is sufficient evidence about it before him the judge cannot be said to have had regard to all the necessary factors in reaching a decision on dispensing with agreement and freeing for adoption. This again appears to me to be elevating a matter of evidence into a matter of law. It is for the judge to have regard to the availability of contact in coming to his decision, but so long as he has evidence on which he can properly make his decision and he has not misdirected himself or been in error in respect of other factors to which he should have regard, his decision will be sustainable unless he is ‘plainly wrong’.”
The trial judge had reviewed the relevant domestic case-law on reasonableness and set out at length the reasons for reaching the conclusion that the applicants’ agreement should be dispensed with and was entitled to find as he did.
Baroness Hale of Richmond found that any reasonable parent would be entitled to place great weight on the views of Professor Triseliotis and were entitled to see what efforts were made to find the right sort of placement for N. before giving their consent. In taking the view that the applicants could frustrate an adoption by behaving so badly that no-one would agree to post-adoption contact, the trial judge had placed undue weight on an irrelevant consideration when deciding that the parents were unreasonably withholding their consent:
“[The] evidence was very clear that contact would only be in the best interests of the child if the parents behaved well and did not use it to undermine the placement. This would be true both of contact between freeing and adoption and after an adoption. Contact which is not in the best interests of the child can readily be stopped. It is, moreover, important to recall that despite their adamant objections to the Trust’s plans, the parents had not sought to use their contact to undermine their daughter’s current placement. Nor, despite the view which he had formed of the desirability of post adoption contact, did the judge consider whether the court could, at that stage, promote this, for example by preserving the parents’ position after a freeing order.”
In considering Article 8 of the Convention she stated:
“There is, so far as the parties to this case are aware, no European jurisprudence questioning the principle of freeing for adoption, or indeed compulsory adoption generally. The United Kingdom is unusual amongst members of the Council of Europe in permitting the total severance of family ties without parental consent. (Professor Triseliotis thought that only Portugal and perhaps one other European country allowed this.) It is, of course, the most draconian interference with family life possible. That is not to say that it can never be justified in the interests of the child. The European Court has said that where the interests of the child and the interests of the adults conflict, the interests of the child must prevail: eg Yousef v The Netherlands [2003] 1 FLR 210, para 73. But it can be expected that the European Court would scrutinise the relevance and sufficiency of the reasons given for such a drastic interference with the same intensity with which it has scrutinised severance decisions in other care cases: see, in particular, P, C and S v United Kingdom [2002] 2 FLR 631, para. 118. The margin of appreciation accorded to the national authorities is correspondingly reduced. In a freeing application, the question must be whether it is necessary and proportionate to sever the links with the family of birth if a new family has not yet been identified.”
2. Subsequent proceedings and the post-adoption contact arrangements
By letter dated 13 October 2006, the Trust informed the applicants that N.’s prospective adoptive parents had lodged an application for an adoption order in the High Court.
On 26 October 2006, the applicants wrote to the High Court opposing the granting of the order.
On 15 January 2007, by direction of the High Court, the applicants were joined as respondents in proceedings but confined to the issues of post-adoption contact and whether the proceedings should be stayed. On the same date, the High Court also directed that the proceedings should not be stayed pending the outcome of the present application before this Court. On 30 March 2007, an agreement was reached between the parties concerning post-adoption contact. The matter was then adjourned for the hearing of the adoption application. Since the applicants had only been joined to the proceedings for the purposes of their application for a stay and to be heard in connection with their application for post-adoption contact, they were not permitted to participate further in the proceedings.
The post-adoption contact arrangement provided for N. to see her birth family three times per year, accompanied throughout by her adoptive parents. Those arrangements remain in place.
B. Relevant domestic law and practice
1. Freeing orders
Article 18 of the Adoption (Northern Ireland) Order 1987 (“the 1987 Order”) provides that where, on an application by an adoption agency, an authorised court is satisfied in the case of each parent or guardian of a child that his agreement to the making of an adoption order should be dispensed with on a ground specified in Article 16(2) of the Order, the court shall make an order declaring the child free for adoption. By Article 16(2) such grounds are that the parent or guardian: cannot be found or is incapable of giving agreement; is withholding his agreement unreasonably; has persistently failed without reasonable cause to discharge his parental responsibility for the child; has abandoned or neglected the child; has persistently ill-treated the child; has seriously ill-treated the child. Article 18(2) of the Order provides that no application shall be made unless the child is in the care of an adoption agency and the child is already placed for adoption or the court is satisfied that it is likely that the child will be placed for adoption. An adoption agency may be a Health and Social Services Trust.
Article 9 of the 1987 Order provides:
“In deciding on any course of action in relation to the adoption of a child, a court or adoption agency shall regard the welfare of the child as the most important consideration and shall—
(a) have regard to all the circumstances, full consideration being given to—
(i) the need to be satisfied that adoption, or adoption by a particular person or persons, will be in the best interests of the child; and
(ii) the need to safeguard and promote the welfare of the child throughout his childhood; and
(iii) the importance of providing the child with a stable and harmonious home; and
(b) so far as practicable, first ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding.
By Article 18(3) read with Article 12(3) of the 1987 Order, such a “freeing order” acts to extinguish the parental responsibility of the parents.
Rule 4A.4(2) of the Family Proceedings Rules (Northern Ireland) 1996 (“the 1996 Rules”) requires that the respondents to such an application for a freeing order shall include, inter alia, each parent or guardian of the child.
2. Adoption orders
Article 12 of the 1987 Order provides for an adoption order to be made by an authorised court on the application of the adopters. When such an application is made, Rule 4A.15(1) of the 1996 Rules specifies that the respondents shall include each parent or guardian of the child, unless the child is free for adoption. Rule 4A.16 provides that where the child is not free for adoption and the applicant intends to request the court to dispense with the agreement of a parent or guardian of the child, such a request shall be included in the application. The grounds for dispensing with agreement are those contained in Article 16(2) of the 1987 Order. By Rules 4A20 and 23(1), of the 1996 Rules, as respondents the parents are served with notice of any hearing and can attend and be heard on whether the adoption order should be made.
By Article 12(3) of the 1987, the making of an adoption order operates to extinguish the parental responsibility which any person has for the child immediately before the making of the order.
C. European Convention on the Adoption of Children
Article 5 of the European Convention on the Adoption of Children, Strasbourg, 1967, provides as follows:
“(1) Subject to paragraphs 2 to 4 of this article, an adoption shall not be granted unless at least the following consents to the adoption have been given and not withdrawn:
(a) the consent of the mother and, where the child is legitimate, the father; or if there is neither father nor mother to consent, the consent of any person or body who may be entitled in their place to exercise their parental rights in that respect;
(b) the consent of the spouse of the adopter.
(2) The competent authority shall not:
(a) dispense with the consent of any person mentioned in paragraph 1 of this article, or
(b) overrule the refusal to consent of any person or body mentioned in the said paragraph 1,
save on exceptional grounds determined by law.
(3) If the father or mother is deprived of his or her parental rights in respect of the child, or at least of the right to consent to an adoption, the law may provide that it shall not be necessary to obtain his or her consent.
(4) A mother’s consent to the adoption of her child shall not be accepted unless it is given at such time after the birth of the child, not being less than six weeks, as may be prescribed by law, or, if no such time has been prescribed, at such time as, in the opinion of the competent authority, will have enabled her to recover sufficiently from the effects of giving birth to the child.
(5) For the purposes of this article “father” and “mother” mean the persons who are according to law the parents of the child.”
COMPLAINTS
The applicants complain first under Article 6 of the Convention that the decision of the domestic authorities to conduct “freeing order” proceedings, which deprived them of the opportunity to participate at the later adoption order proceedings, breached their right to a fair hearing in the determination of their civil rights as parents. They argue that there were a number of issues relating to the desirability of the adoption of their daughter on which they could not be heard at the adoption order hearing because of the freeing order. In order to guarantee a fair hearing on the decision to deprive them of their civil rights, it would have been more appropriate for domestic authorities and prospective adopters to have applied for an adoption order and simultaneously request that the applicants’ agreement be dispensed with by a freeing order. At such an adoption hearing, by which time the proposed adopters would have been identified, all such issues could be determined by evidence. The applicants could have attended and argued their case on the evidence, with all the rights and protections afforded to them as parents.
Second, the applicants complain that the freeing order was a disproportionate interference with their rights guaranteed by Article 8 of the Convention because the domestic authorities failed to keep their assessment of their family situation under review, in particular failing to consider the second applicant’s progress in dealing with her alcoholism; because the reasons given by the trial judge were neither relevant nor sufficient; and because it prevented a proper balancing of the rights of N. and their rights. In respect of the latter, the applicants argue that refusing to grant the freeing order and instead considering the same questions at an adoption order hearing would have offered equal protection to N. but greater protection to the applicants’ right to contact with her.
Finally they allege that the appeal courts could only overturn the trial judge’s ruling if they considered it to be “plainly wrong”. Under Article 13 they argue that such a restriction on their right to appeal deprived them of an effective remedy in respect of the violations of the Convention of which they were victims.
QUESTIONS TO THE PARTIES