Neutral Citation No:  NIFam 1
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
This judgment has been anonymised given that it involves a child. Nothing must be published which would identify the child or the family in any way. The name given to the child in this judgment is not the real name of the child.
(i) That the learned trial judge erred in failing to take into account that the evidence was limited about the intensive psychological support that the mother required/had a lack of evidence to support the finding that it would take many years to complete.
(ii) The learned trial judge erred in his application of the Supreme Court decision of Re B.
(iii) The learned trial judge erred in failing to give consideration to significant improvements and motivation on behalf of the mother.
(iv) The learned trial judge erred in his finding given that it argued that it was disproportionate.
"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."
Article 16 of the 1987 Order states that:
"16.—(1) An adoption order shall not be made unless—
(a) The child is free for adoption.
(b) In the case of each parent or guardian of the child the court is satisfied that—
(i) He freely, and with full understanding of what is involved, agrees –
(ii) His agreement to the making of the adoption order should be dispensed with on a ground specified in paragraph (2).
(2) The grounds mentioned in paragraph (1)(b)(ii) are that the parent or guardian—
(b) is withholding his agreement unreasonably."
The child must also be subject to a care order. There was no issue taken with that requirement and there was also no issue taken with the fact that the child is likely to be placed for adoption given that the child is with concurrent carers who may become adopters.
"Making the freeing order, the judge had to decide that the mother was withholding her agreement unreasonably. This question had to be answered according to an objective standard. The characteristics of the notional reasonable parent have been expounded on many occasions. The views of such a parent will not necessarily coincide with the judge's views as to what the child's welfare requires. As Lord Hailsham of St Marylebone LC said in Re W:
'Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as reasonable.'
Furthermore, although the reasonable parent will give great weight to the welfare of the child, there are other interests of herself and her family which she may legitimately take into account… The same question may be raised in a demythologised form by the judge asking himself whether, having regard to the evidence and applying the current values of our society, the advantages of adoption for the welfare of the child appear sufficiently strong to justify overriding the views and interests of the objecting parent or parents. The reasonable parent is only a piece of machinery invented to provide the answer to this question."
"It is in the very nature of adoption that no real prospects of rehabilitation or family reunification exists and that it is instead in the child's best interest that she be placed permanently in a new family. Article 8 does not require the domestic authorities make endless attempts of family reunification; it only requires that they take all necessary steps that reasonably be demanded to facilitate the reunion of the child and his or her parents … Equally the court has observed that, when a considerable period of time has passed since the child was originally taken into public care, the interests of a child not to have his or her de facto family situation changed again may override the interests of the parents to have their family reunited."
"The court reiterates that in cases concerning the placing of a child for adoption, which entails the permanent severance of family ties, the best interests of the child are paramount. In identifying the child's best interests in a particular case, two considerations must be borne in mind: first, it is in the child's best interests that his ties with his family be maintained except in cases where the family is proved particularly unfit; and secondly, it is in the child's best interests to ensure his development in a safe and secure environment. It is clear from the foregoing that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, where appropriate, to rebuild the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing. However if the maintenance of family ties would harm the child's health and development, a parent is not entitled under Article 8 to insist that such ties be maintained."