COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HH JUDGE RICHARDS
sitting in the County Court on 12th October 2007
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
MR JUSTICE MUNBY
|- and -
P (A Child)
Kate Thirwall QC and Paul Butterworth (instructed by The County Council) for the Respondent
Hearing date : 12th March 2008
Crown Copyright ©
Lord Justice Wall :
The relevant statutory provisions
52 Parental etc consent – (1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that –
(b) the welfare of the child requires the consent to be dispensed with.
1 Considerations applying to the exercise of powers
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,
(b) references to a relative, in relation to a child, include the child's mother and father.
(1) On an adoption agency being authorised to place a child for adoption, or placing a child for adoption who is less than six weeks old, any provision for contact under the 1989 Act ceases to have effect
(2) While an adoption agency is so authorised or a child is placed for adoption—
(a) no application may be made for any provision for contact under that Act, but
(b) the court may make an order under this section requiring the person with whom the child lives, or is to live, to allow the child to visit or stay with the person named in the order, or for the person named in the order and the child otherwise to have contact with each other.
(3) An application for an order under this section may be made by—
(a) the child or the agency,
(b) any parent, guardian or relative,
(c) any person in whose favour there was provision for contact under the 1989 Act which ceased to have effect by virtue of subsection (1),
(d) if a residence order was in force immediately before the adoption agency was authorised to place the child for adoption or (as the case may be) placed the child for adoption at a time when he was less than six weeks old, the person in whose favour the order was made,
(e) if a person had care of the child immediately before that time by virtue of an order made in the exercise of the High Court's inherent jurisdiction with respect to children, that person,
(f) any person who has obtained the court's leave to make the application.
(4) When making a placement order, the court may on its own initiative make an order under this section.
(5) This section does not prevent an application for a contact order under section 8 of the 1989 Act being made where the application is to be heard together with an application for an adoption order in respect of the child.
(6) In this section, "provision for contact under the 1989 Act" means a contact order under section 8 of that Act or an order under section 34 of that Act (parental contact with children in care).
27 Contact: supplementary
(1) An order under section 26—
(a) has effect while the adoption agency is authorised to place the child for adoption or the child is placed for adoption, but
(b) may be varied or revoked by the court on an application by the child, the agency or a person named in the order.
(2) The agency may refuse to allow the contact that would otherwise be required by virtue of an order under that section if—
(a) it is satisfied that it is necessary to do so in order to safeguard or promote the child's welfare, and
(b) the refusal is decided upon as a matter of urgency and does not last for more than seven days.
(3) Regulations may make provision as to—
(a) the steps to be taken by an agency which has exercised its power under subsection (2),
(b) the circumstances in which, and conditions subject to which, the terms of any order under section 26 may be departed from by agreement between the agency and any person for whose contact with the child the order provides,
(c) notification by an agency of any variation or suspension of arrangements made (otherwise than under an order under that section) with a view to allowing any person contact with the child.
(4) Before making a placement order the court must—
(a) consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and
(b) invite the parties to the proceedings to comment on those arrangements.
(5) An order under section 26 may provide for contact on any conditions the court considers appropriate.
46 Adoption orders
(1) An adoption order is an order made by the court on an application under section 50 or 51 giving parental responsibility for a child to the adopters or adopter.
(2) The making of an adoption order operates to extinguish—
(a) the parental responsibility which any person other than the adopters or adopter has for the adopted child immediately before the making of the order,
(b) any order under the 1989 Act
(d) any duty arising by virtue of an agreement or an order of a court to make payments, so far as the payments are in respect of the adopted child's maintenance or upbringing for any period after the making of the adoption order.
Before making an adoption order, the court must consider whether there should be arrangements for allowing any person contact with the child; and for that purpose the court must consider any existing or proposed arrangements and obtain any views of the parties to the proceedings.
47 Conditions for making adoption orders
(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc consent).
(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied—
(a) that the parent or guardian consents to the making of the adoption order,
(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or
(c) that the parent's or guardian's consent should be dispensed with.
(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.
(4) The second condition is that—
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.
18 Function of the adoption panel in relation to a child referred by the adoption agency
(1) The adoption panel must consider the case of every child referred to it by the adoption agency and make a recommendation to the agency as to whether the child should be placed for adoption.
(2) In considering what recommendation to make the adoption panel must have regard to the duties imposed on the adoption agency under section 1(2), (4), (5) and (6) of the Act (considerations applying to the exercise of powers in relation to the adoption of a child) and—
(a) must consider and take into account the reports and any other information passed to it in accordance with regulation 17;
(b) may request the agency to obtain any other relevant information which the panel considers necessary; and
(c) must obtain legal advice in relation to the case.
(3) Where the adoption panel makes a recommendation to the adoption agency that the child should be placed for adoption, it must consider and may at the same time give advice to the agency about—
(a) the arrangements which the agency proposes to make for allowing any person contact with the child; and
(b) where the agency is a local authority, whether an application should be made by the authority for a placement order in respect of the child.
I realise that the question of permanent foster care or adoption now becomes relevant. I suggest that this needs to be decided upon. Dual planning is putting of(f) the decision that needs to be made for (D) as soon as possible. Given her age and difficulties adoption may not be successful. Permanent foster care has its problems, but would allow ongoing contact with her family, with whom she identifies and from whom, in the future, she will derive support and identity.
The oral evidence
Q you believe, (RM), that adoption would be better for these children than long term fostering, do you not?
A No, I do not.
Q Why are you proposing it then?
A Because I think that I need to find the right family and I have got a better chance of finding the right family if I look in both those areas.
2. The application is made by the local authority for final orders in respect of both of the children The local authority's case is that a placement order is necessary for them to have the widest pool available in which to search for carers for D and S. The mother objects to the making of a placement order and opposes it, saying that such a course would jeopardise and put at risk the arrangements for contact between the children and between herself, S and potentially D.
3. The guardian does not support the making of a placement order in respect of the children because she fears that, on balance, the risks of losing the advantages of contact outweigh the potential advantages of an adoptive placement. It is described by (the guardian) as a "very fine balance".
The reality is that there are strong competing arguments for a dual plan for the children encompassing adoption, and there are strong arguments for taking a course that would not do so.
19. In dealing with the law I should say that, in taking my decisions about the application for a placement order, I have considered sections 1, 21, 22, 27 and 52 of the Adoption and Children Act 2002. It is the power contained in section 52 that the Local Authority invite me to exercise; that is to dispense with the consent of the mother to the making of the placement order on the grounds that the welfare of the children requires such an order to be made. That is the legal framework in which the Local Authority bring and argue their case.
20. I am entirely satisfied, accordingly, that the provisions of section 1 of the Act apply.
21. It follows that, in taking my decisions about S and D, their welfare throughout their life has been my paramount consideration. In taking those decisions, I have considered carefully the welfare checklist contained in section 1 (4) of the Adoption and Children Act. Indeed, I have it open in front of me in giving this judgment.
22. I have also considered the whole range of options which are available in the case of these children and, as I am required, the least interventionist first. I have considered whether it is better to make an order, or not to do so. Specifically, I have considered the arrangements for contact and invited comments in respect of that matter, as I am required by section 27 (4).
23. By virtue of section 21 a placement order authorises the Local Authority to place a child for adoption with any prospective adopters. The issue of consent is contained in section 52 in the way that I have described. In taking decisions about the issue of consent, I make it clear that I have had careful regard to the welfare checklist and, in particular, paragraphs B, C and F of the subsection (4).
24. The Court must be satisfied that the children's welfare requires consent to be dispensed with which, for my part, places an onus on the Court to be satisfied that their interests compel or make necessary the dispensing with consent. The test which I apply is to ask myself: does the welfare of the children require parental consent to be dispensed with in this case?
25. That, I make clear, is the legal framework in which I take the decisions in this case.
31. In the course of the evidence, RM told me that, as far as he was concerned, the key consideration is for continued contact between S and D. He said of importance also was prospective contact between D and her mother in the future.
32. RM told me that he wants a dual plan of adoption and fostering for both of the children. He said "I ask the Panel for a plan for simultaneous family finding and to identify a prospective adoptive family as soon as possible for the children". He told me that his plan would be to make a referral to the family placement team and to adoption and family finding unit, and that he would expect a meeting between himself and his manager, and the managers of both those teams, in order to draw up a conclusive plan as to how family finding should take place for both of the children.
33. He told me that the reality is that, if a placement order is made, the pool of prospective carers would be wider. He told me that the policy of the Local Authority is that, if there is not a placement order, the adoption and family finding unit will no look for prospective adopters. He said that would mean that the only choice would be the family placement team looking for a permanent foster placement. He told me specifically that the adoption and family finding unit would not carry out a search without a placement order.
34. RM told me that adoption and family finding would have no timescale. He said that the search for a foster care placement would not be put on hold and would not be made subject to a search for adopters by the adoption and family finding unit. He told me specifically that it would need, as he described, a special breed of carers who were emotionally intelligent and insightful, who would be prepared to wait a considerable period for an emotional reward from the children. He said that it was very important that the relationship between the children should be preserved. He said "I do not think that a dual plan risks that relationship so long as I find carers who are open to contact. It matters not whether that is in an adoptive placement or a permanent foster care placement".
35. He told me that there was a potential risk that contact could stop between the children. When cross-examined about it, he said that he did not accept that it was a high risk.
36. RM said that his experience was increasingly that there were adopters who were approved for the age-range of these children – and it is agreed that they are older children in terms of adoption – and that it was a realistic possibility that the Local Authority could find carers who would be open to contact between the children, open to contact between S and his mother and prepared to restart contact for D with her mother is that was shown to be her needs.
37. It was put to RM, some might think robustly, "That is unrealistic and you know so", to which his answer was "No, it is not unrealistic".
38. He accepted that it would be difficult to find carers, but he said he would not rule it out and would not accept that it was a remote possibility.
When Dr FH gave evidence she made it clear that she was not prepared to take what she said is "the ultimate decision of which is the right course". My judgment is that, in respect of the evidence of Dr H, she was seeking to set out both sides of the argument without a recommendation as to what should or should not happen.
40. At the outset of her evidence she told me that one of the overriding factors is the sibling relationship. She told me: "If the sibling relationship can be upheld for their lives, adoption as the best possible outcome". She said that the children need to have the best opportunity for carers to be found for them, with her caveat about contact. She said that contact must continue into their future years. She said that it is one of the most important criteria in this case.
41. Dr H said that the carers needed to be skilled and insightful. It did not matter what the legal arrangement was, as to whether it was adoption or foster care. She told me that she would worry whether contact would happen if it was adoption. She said that it would need to be promoted which, as a consequence, made her less optimistic about finding adoptive carers. She said that it would be specifically detrimental to stop contact between the children, and that it is extremely important in terms of placement. She described it as a "protective factor" for D so far as S is concerned, and likewise, for S, in circumstances where both children were at high risk of a breakdown of placement, whether adoptive or in foster care.
42. She told me that adoption did have a potential risk of contact ceasing. She said that it is not worth risking losing that contact. The route that is the least risk of keeping contact going is the one to take. Asked whether that should be foster care, she replied in the affirmative.
43. The guardian told me that, in respect of her report, her conclusion was that it was a fine balance but, overall, she was recommending that a placement order should not be made for the children because she said the simply reason is that it would not be possible to tell what the level of contact between the children would be in an adoptive placement. She gave the example of contact involving C and K – or perhaps more accurately, as she would say, the fact there was no contact involving C and K despite a careful and strong recommendation by her as their guardian in care proceedings. She was open to the suggestion that she had been influenced by that, but she said that she had much greater experience than simply that case and it would be wrong to attribute to her these views simply because the arrangements that she had hoped would take place for the other two children in respect of contact had not happened.
44. The guardian was concerned that, if D was placed, or S was placed in an adoptive placement then the prospects of contact stopping might be high to permit them to settle, and restarting it would be very difficult.
45. She summed her view up in this answer that she gave to me: "In depriving the children of the wider pool and advantages of an adoptive placement, it removes for me the disadvantage of the prospect of no sibling relationship. I find it difficult to think that the contact would continue if there was an adoptive placement". She went on to say that the contact is more protected by long-term fostering, but added rather wistfully that "it does deprive them of the possibility of the one and only adoptive family that they may have".
46. She also told me that there might be a risk that the requirements of contact could be lowered in the search if it was not possible to find this "ideal couple" as they have been referred to.
47. She agreed with me, when I asked her whether what it came down to was the balance between the risk of losing contact through adoption against depriving the children of finding adoptive carers who would meet their needs which of course would include contact, but as a member of that adoptive family. After a pause, the guardian thought that that probably was the position.
49. It is agreed, and certainly for my part I find, that the children have five specific and important needs. The first is for intelligent and insightful carers, by which I mean emotionally intelligent and insightful attuned to the needs of the children, which are very great. Secondly, carers who will not expect any immediate emotional reward from caring for the children. Thirdly "key", as RM would say, contact between the two children must be preserved. That contact, in my judgment, is protective at the very least in the event of a breakdown of their placement, which is even now a real risk. It is a positive benefit at the very best. It is the emotional support in the stormy waters of the breakdown of the family life that (counsel) referred to. Perhaps, for my part, from the evidence I have heard and the documents I have read, it is closer to being a positive benefit than simply a protective factor.
50. Fourthly, it seems to me that contact between the mother and S is positive for him. It is described as "therapeutic". It is positive because of the efforts that the mother has made to make such changes in her life. She is making a positive contribution to the care of her child.
51. Fifthly, it seems to me that contact between mother and D may be required for D once she is settled into a permanent placement. That is a potential need that D has.
52. I have carefully considered the welfare checklist. I have to consider the relationship which the children have with their relatives and the likelihood of any such relationship continuing and the value to the child of its doing so. That is probably at the heart of this case. It means their mother and each other.
53. The relationship between S and D is very important. The relationship between S and his mother is, and I do not mean this unkindly, less important but of value to him. It potentially is the case that the relationship between D and her mother could be important to her. They are neither of them as important as the relationship between the children.
54. The situation in reality is this. The adoption and family finding unit will not carry out a search for potential adopters in the absence of a placement order.
55. For my part, I accept that there is always a potential risk of losing contact if an adoptive placement is found and ultimately an adoption order is made. I have had to weigh that risk.
56. I have formed the view that the risk is slight rather than great. It is a "potential" rather than a "high risk" as used in evidence. The reason that I have come to that view is that I have thought carefully about the way in which RM gave his evidence and the commitments he made in the course of that evidence, which are important in terms of finding families for these children.
57. The commitment he gave is that a key factor is maintaining that relationship. I am satisfied that RM, in the guise of the Local Authority, will honour that commitment of ensuring that contact would take place. That means, in my judgment, that the only potential adoptive carers would be those who could meet the five needs that I have identified for these children.
58. It seems to me, in those circumstances, in weighing the balance between the risk of losing contact principally as between the children, but including their mother, and depriving them of finding permanent adoptive carers who will meet their needs, the best interests of the children are served by making provision for the Local Authority to have the widest possible pool available to them.
59. In coming to that view, it will be apparent that I am going to depart from the recommendations of the guardian and, insofar as she made one, of Dr H.
60. I am satisfied that I can, and should, properly do so because I judge the risk of losing contact to be small, and because of the commitment given by the social worker and the prospect of the pool only being searched for those who will meet those five needs. I am satisfied that the family placement team and the adoption and family finding unit have a clear understanding of the needs of the children and the commitment given by RM representing the Local Authority.
61. I am satisfied that the selection of carers would of necessity have to encompass that commitment. Overall, I have formed the view that the best prospect for the children of finding a placement must be to give the Local Authority the widest possible pool. For those reasons I depart from the guardian and Dr H.
62. I should make it clear that I have given the fullest consideration to the argument of the guardian. I should say that I have the highest respect for her as a guardian whose professional work I have known over many years. It is not without careful thought and clearly expressing my respect to her arguments that I depart from her recommendation in this case. I feel able to do so because I have that unique and privileged position of having an overview of the whole of the evidence as it is given. I am satisfied that Dr H was presenting to me the two options. Taking her evidence and that of the Local Authority, I am satisfied that the best interests of the children are served by the making of a placement order, because the likelihood of the relationships that I identify in fact continuing, and the value to the children of them doing so, is judged by me to be one that is at slight risk of peril. The value is such that I am confident that the Local Authority would not jeopardise it in their selection of carers.
63. In those circumstances, I have come to the view that the welfare of the children requires me to dispense with the consent of the mother in this case. For those reasons, I do so. I emphasise that I have the greatest respect for the mother in this case, who has presented these arguments through her counsel perfectly cogently and carefully. I am satisfied that, although she and I disagree ultimately as to the method of meeting the children's needs, she and I agree what they are. It is just that my view is that they can be met best by the making of a placement order.
64. In those circumstances, I dispense with the mother's consent. I make a placement order in respect of both S and D to Norfolk County Council. In doing so I am satisfied the order is necessary and proportionate to the risks the children face.
The attack on the judgment in this court
The judge was wrong as a matter of law to conclude that the welfare of the children required that the court should dispense with the consent of the mother, in that:
(i) the proper application of section 52(1)(b) of the Adoption and Children Act 2002 required a balancing of the rights of the children and the rights of the mother and no such balancing was undertaken, and
(ii) in a case where the local authority were pursuing a "dual plan" for long term fostering and adoption the welfare of the children did not require that consent be dispensed with.
In this case the local authority stated that the policy of their family finding team was not to look for adoptive placements in the absence of a placement order. The local authority argued that as a result of this policy they had to apply for a placement order. The judge was wrong to conclude that such reasoning made out, or contributed to, a case that the welfare of the children required that the court should dispense with the consent of the mother.
The judge was wrong to conclude on the evidence that the welfare of the children required that the court should dispense with the consent of the mother, in that:
(i) the weight of expert evidence given to the court was against the plan for adoption;
(ii) there was not sufficient material available to justify a contrary conclusion; and
(iii) the explanation given by the judge for departing from the expert evidence was not sufficient to justify the step taken.
 ……At first blush it would appear likely to be the case that once the court has reached the conclusion that adoption is in the best interests of the child, it will follow that his or her welfare will require the court to dispense with parental consent to adoption.
 …….Whilst, therefore, our provisional view is as expressed in para , above, we think that final consideration of the point should await a case in which it arises as a critical issue."
the court being satisfied that the advantages to a child of becoming part of a new family and having a new legal status are so significantly greater than the advantages to the child of any alternative option as to justify overriding the wishes of a parent or guardian".
(1) We are very much concerned that the right decision is made in terms of the rights of the birth parent and the rights of the child. Our intention is to strike a balance. (Col GC263)
(2) The second circumstance where parental consent may be dispensed with is where the child's welfare expressly requires consent to be dispensed with. I want to stress the term "requires". I have been concerned by what has been said this afternoon. Some concern has been expressed that this test in Clause 51(1) is a trivial one which will be easily met, that it is a simple welfare test and that it might lead to adoptions being made against the parents' wishes in marginal cases. I want to reassure the Committee that we do not believe that that is the case. The court has to judge the child's welfare, which includes its mental, physical and emotional needs—a harsh set of criteria—not just its wishes and feelings. We are requiring the court to dispense with parental consent to adoption. That is not a judgment that can be taken lightly. I see the noble Baroness, Lady Howarth, nodding her head in agreement. It is not a decision that is taken lightly. It is not a test that would be met in marginal cases." (Col GC264)
(3) When the court comes to judge whether the child is ready for adoption and whether to make an adoption order, there will be other considerations which the court will have to take into account. It is not just a matter of the list; the list is a starting point. There will be many other considerations which will be different from the considerations that are made under a placement order. We believe that that is properly left to the courts. As regards contested placement order or adoption order cases, we have not just provided in the welfare test for the criteria to be weighed up as fully as possible; there is also an extra safeguard." Col GC265)
The argument for the local authority / adoption agency
The position of the guardian
- such orders jeopardised the existing contact between the children and thereby their relationship which is considered to be of significant importance to them – particularly if one child is placed for adoption and one for permanent foster care. This had been confirmed in the evidence of RM;
- the combined statement, evidence and care plan of the local authority were unrealistic in respect of adoption placements and contact with the birth family;
- the local authority's desire to 'widen the pool' of prospective placements for (D) and (S) was impeded by the policy of the local adoption agency of limiting the search until a placement order was made;
- a plan for adoption was not in the best interests of (D) and (S) and it was, accordingly, inappropriate to make placement orders.
 The special nature of the jurisdiction also has implications for the approach of the courts:
(i) In view of the importance of such cases to the parties and the children concerned, it is incumbent on judges to give full reasons and to explain their decisions with care. Short cuts are to be avoided. It is not of course necessary to go through the welfare check-list line by line, but the parties must be able to follow the judge's reasoning and to satisfy themselves that he or she has duly considered it and has taken every aspect of it relevant to the particular case properly into account.
(ii) Provided the judge has carefully examined the facts, made appropriate findings in relation to them and applied the welfare check-lists contained in s 1(3) of the 1989 Act and s 1 of the 2002 Act, it is unlikely that this court will be able properly to interfere with the exercise of judicial discretion, particularly in a finely balanced case. (We think it no co-incidence that all three of the appeals with which these judgments are concerned fall to be dismissed, although each reaches a different result.)
"under Art 8 of the Convention both the children and the parents have the right to respect for their family and private life. If the state is to interfere with that there are three requirements: first, that it be in accordance with the law; secondly, that it be for a legitimate aim (in this case the protection of the welfare and interests of the children); and thirdly, that it be 'necessary in a democratic society'."
There is a long line of European Court of Human Rights jurisprudence on that third requirement, which emphasises that the intervention has to be proportionate to the legitimate aim. Intervention in the family may be appropriate, but the aim should be to reunite the family when the circumstances enable that, and the effort should be devoted towards that end. Cutting off all contact and the relationship between the child or children and their family is only justified by the overriding necessity of the interests of the child.
where the application is for a care order empowering the local authority to remove a child or children from the family, the judge in modern times may not make such an order without considering the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 Art 8 rights of the adult members of the family and of the children of the family. Accordingly he must not sanction such an interference with family life unless he is satisfied that that is both necessary and proportionate and that no other less radical form of order would achieve the essential end of promoting the welfare of the children.
the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent reasons to the contrary."
These measures were particularly far-reaching in that they totally deprived the applicant of her family life with the child and were inconsistent with the aim of reuniting them. Such measures should only be applied in exceptional circumstances and could only be justified if they were motivated by an overriding requirement pertaining to the child's best interests."
The policy of the local authority / adoption agency
Miss Ryan on behalf of Mrs. B conceded that the terms of section 8(7) of the Act of 1975 were unambiguous and on the face of the subsection there was jurisdiction to impose any terms or conditions that the court thought fit. She, however, in essence, repeated the unsuccessful submission made in In re V. (A Minor) (Adoption: Consent)  Fam. 57, referred to above, that the subsection only enabled the attachment of such terms and conditions as the court could see would be immediately fulfilled or met and not conditions which involved the intervention or supervision of the court in the future. Thus in her submission the decisions of the Court of Appeal which, expressly or by necessary implication, decided the contrary were wrong.
I cannot agree. It seems to me essential that, in order to safeguard and promote the welfare of the child throughout his childhood, the court should retain the maximum flexibility given to it by the Act and that unnecessary fetters should not be placed upon the exercise of the discretion entrusted to it by Parliament. The cases to which I have referred illustrate circumstances in which it was clearly in the best interests of the child to allow access to a member of the child's natural family. The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but that each case has to be considered on its own particular facts. No doubt the court will not, except in the most exceptional case, impose terms or conditions as to access to members of the child's natural family to which the adopting parents do not agree. To do so would be to create a potentially frictional situation which would be hardly likely to safeguard or promote the welfare of the child. Where no agreement is forthcoming the court will, with very rare exceptions, have to choose between making an adoption order without terms or conditions as to access, or to refuse to make such an order and seek to safeguard access through some other machinery, such as wardship. To do otherwise would be merely inviting future and almost immediate litigation
It seems to me that that degree of security that she seeks has to be found in the trust that she must have in these adopters. That is a trust which is undoubtedly held by the local authority and the guardian ad litem, because those experts in this field all believe that at this stage of this child's life it is right for her sake that she should continue to see her mother once a year. They have chosen this family on the basis that they also would recognise it was in the interests of this child that she should continue, certainly for the time being, to see her natural mother. These adopters themselves accept that this is right. This is all in the interests of the child, and, of course, an order under s 8 for contact is made with the welfare of the child of the primary consideration. Nobody is suggesting that if this order is not made then the welfare of this child would not continue to be the primary consideration of these adopters in relation to her continuing contact with her natural mother.
Footnote: Re T