Jersey Unreported Judgments

2002/171

ROYAL COURT

(Family Division)

16^th September, 2002

IN THE MATTER OF the Adoption (Jersey) Law, 1961

Application to adopt an infant child, H, by the

natural mother (Mrs J) and her husband (Mr. J).

Application opposed by the natural father and former husband of Mrs. J (Mr E).

The Applicants on their own behalf.

Advocate D.C Sowden for Mr E.

judgment

the bailiff:

1.        This is an application by Mr and Mrs J for an adoption order in respect of H an infant.  H is the daughter of Mrs J and Mr E who were separated in 1994, and divorced in 1996.  Mrs J formed a relationship with Mr J in September 1993, and they were married in 1997.  There is a child of that marriage who was born in December 1997.  The marriage is described as secure and stable and the relationship between H and her half brother is described as close.  H is entirely content in her new home environment, and according to the guardian ad litem, she is doing particularly well at school.

2.        The divorce between Mrs J and Mr E was by contrast bitter and acrimonious.  A report prepared for this Court by the Children's Office, dated 22^nd November, 1994, described the accusations and counter-accusations by both parties as to the other's conduct.  The report expressed concerns about attempts to sway the alliance of H, then aged 3 and recorded the fact that both parties had been cautioned about the possible adverse consequences for H of open confrontations in her presence.

3.        The Children's Office were however instrumental in setting up an agreement between Mrs J and Mr E, in October, 1994, by which both parties were to enjoy the custody of H.  Care and control of the child was awarded to Mrs J., but generous rights of access were accorded to Mr E.  In addition there were arrangements for the child to spend alternate Christmases and birthdays with each parent.  Early in 1995, however, Mr E took up employment in the Cayman Islands and agreed arrangements for access obviously ceased to be applicable.

4.        During 1995 various issues were referred to the Greffier Substitute in relation to access and in relation to the wish of Mr and Mrs J to leave the Island to go and live in Guernsey where Mr J had been offered employment.  Since then access has been only sporadically exercised.  We were told by Counsel for Mr E that access had been exercised once in the Cayman Islands, once in the British Virgin Islands, where he is now resident, and once in the United Kingdom. 

5.        Mr E blames Mrs J for putting difficulties in the way of his exercise of access.  Mrs J asserts that Mr E has not shown any real interest in H.  Mr E contends through his Counsel that he has tried to make telephone contact with H, but that those efforts have occasionally been thwarted by Mrs J.  That, of course, is strenuously denied by Mrs J.  However, it is clear and admitted by Mr E that no maintenance has been paid for the benefit of H for the last 5 years.  We were told by his Counsel that this was some form of reprisal for the difficulties or perceived difficulties which he was experiencing about exercising access to H.

6.        The legal tests which we have to apply in considering this application is set out in Article 5 of the Adoption (Jersey) Law 1961 as amended.  The relevant part of that Article provides:

"(1)          An adoption order shall not be made unless in the case of each parent or guardian of the infant the Court is satisfied that -

(a)     he freely, and with full understanding of what is involved, agrees unconditionally to the making of an adoption order, whether or not he knows the identity of the applicants; or

(b)     his agreement to the making of the adoption order should be dispensed with on a ground specified in paragraph (2) of this Article.

(2)          The grounds mentioned in sub-paragraph (b) of paragraph (1) of this Article are that the parent or guardian -

 (b)     is withholding his agreement unreasonably;"

7.        In this case Mr E does not consent to the adoption order being made and the question for us is whether that consent is being unreasonably withheld.  Mr J who presented the case on his own behalf and on behalf of his wife with great skill made six points.  (1)  He said that an adoption order would constitute a formal recognition of H's position as a member of her new family.  (2)  It would remove the threat of injunctions which had in the past disrupted their life.  The last occasion, however, when an injunction was issued was in relation to the proposed move to Guernsey in 1997.  Since that time no threat of an injunction has been made.  (3)  An adoption order would allow the change of name of H to be officially recognised and this would help both in her school and with regard to travel arrangements.  She was known by the surname of Mr and Mrs J in her school but her passport of course had been issued in the surname of her father.  (4)  An adoption order would recognise the financial sacrifices made by Mr and Mrs J following the lack of financial support which had been received from Mr E.  (5)  An adoption order would facilitate the making of appropriate family arrangements and in particular the making of legacies by members of the family of Mr J.  (6)  It was contended that an adoption order would provide H with security in the event of Mrs J's demise. 

8.        It is undoubtedly true that if Mrs J were to die the question of who should have care and control of H would be a matter for this Court whereas if an adoption order were made Mr J would be deemed to have that care and control. 

9.        Advocate Sowden who appeared for Mr E conceded frankly that there had been a failure on the part of her client to maintain his child.  She explained that by reference to the financial difficulties which he had experienced but she also conceded that he had taken this step ill advisedly, as he now understood, because of the difficulties he was experiencing in exercising access to his child.  Advocate Sowden told us that he had resolved to put matters right as soon as he was in a financial position to do so.  Counsel asked the Court - if it was minded to make an Adoption Order - to consider whether a condition of access should be attached to it.  This possibility was considered in a judgment of this Court in In re T (an infant) (1987-8) JLR 677, where Tomes, Deputy Bailiff, stated:

"But we turn to In re M (A Minor). There the Court of Appeal held that, as a general rule, it was highly undesirable that after an adoption order was made, there should be any contact between the child and his natural parents.  This was not an absolute rule and there was clearly jurisdiction to make an adoption order with a condition as to access.  But each case has to be considered on its own merits.  An adoption order is an order vesting the parental rights and duties relating to the child in the adopters.  It would be a great interference with the rights of the adopters to compel them to grant access and that is the reason why an order for adoption with a condition of access should only be granted in very exceptional circumstances."

10.      We have considered very carefully all these matters in the round.  In particular we have taken note of the advice of Mr Davenport, Child Care Officer, who is the guardian ad litem of H that adoption would be in her best interests.  Crucial to this question is the consideration of the child's right of access to her father.  It seems that, notwithstanding the lack of regular contact during the past 5 years or so, and the continuing lack of empathy between her parents, that H holds no fear for her father and is indeed pleased to hear from him when telephone contact is made.  If an adoption order were made the parental rights of Mr E would cease.  Mr J emphasised to us that it was not their intention to prevent access, but we think that the reality is that the negotiations for access arrangements would become even more difficult than they have been in the past. 

11.      We do not think that Mr E has fulfilled the duties of a father.  He ought indeed to be ashamed of his failure to comply with his obligation to maintain H. 

12.      We were told by Mr J that H fully understood the implications of an adoption order.  We cannot accept that contention.  We would be very surprised if a ten year old child, no matter how well balanced and developed, could have the maturity of understanding to appreciate fully all the legal, moral and social implications of such an order being made. 

13.      Our conclusion is that Mr E's consent is not being unreasonably withheld.  This conclusion is one at which, in 4 or 5 years time, given similar circumstances of non-involvement by Mr E, we might not necessarily arrive.  If H were 14 or 15 and had expressed a strong desire to become the adopted child of her mother and step-father, the Court might well take the view that a refusal on the part of Mr E to grant consent was unreasonable.  For the present, however, the interests of H lie, in our judgment, in keeping open, as a matter of law, a channel of communication to her father.  The application is accordingly refused.

Authorities

In re T (an infant) (1987-8) JLR 677.

De Sousa-v-de Sousa & Anor (1985-86) JLR N.8.

Adoption (Amendment No.3) (Jersey) Law 1995.