This is a guest post by Jessica Smith. Jessica is a Trainee Solicitor due to qualify in September 2020 and is aspiring to be a Family Solicitor. She tweets as @JessicaLSmith__
In the recent case of Re T (A Child: Refusal of Adoption Order)  (EWCA Civ 797), the Court of Appeal allowed an appeal by grandparents against a decision of the trial judge not to grant them an adoption order in respect of their grandchild, who had lived with them since birth. The Court of Appeal made an adoption order in their favour without remitting for retrial, dispensing with the mother’s consent. Although special guardianship is the legal framework more typically used to secure a long term placement of a child with extended family, the unusual facts of the case merited the making of an adoption order rather than leaving the existing special guardianship order in place. This post discusses the “unusual” circumstances that led to the Court of Appeal’s decision.
Whilst adoption cases are sadly not uncommon, non-consensual adoption must always be an option of last resort. In Re T, the Court of Appeal exercised its powers under section 52(1)(b) of the Adoption and Children Act 2002 and dispensed with the consent of the child’s birth mother in the making of an adoption order. Whilst this is unremarkable in itself, the case has many facets that make it unusual, including the fact that it involved: the adoption of a child by family members, a request for an adoption order following the making of a special guardianship order, influential black South African cultural values and traditions, the admission of new evidence before the Court of Appeal, and an adoption order being made at the appeal.
The child in the case was 3 years old by the time of the appeal hearing. The Appellants were the child’s maternal grandparents.
The birth mother had not had any contact with the child since the day after his birth, when he began living with the grandparents. The identity of the child’s biological father was not known to anyone.
The grandparents were both of black South African parentage.
The mother had been diagnosed with paranoid schizophrenia and with an emotionally unstable personality disorder. She had a long history of drug abuse and she had a substantial history of criminal convictions for violent offences and using racially abusive language.
In late 2016 the mother was convicted of harassment, which related to her making threats to kill the grandmother. She was sentenced to 12 weeks imprisonment and the court made an indefinite restraining order against her preventing her from making contact with the grandmother.
On 13 February 2017, care proceedings concluded with the judge making a special guardianship order in favour of the grandparents.
On 26 June 2018 the mother was sentenced to 24 months imprisonment for multiple breaches of the restraining order.
Given the mother’s hostility towards the grandparents, and the fact that she had not given up hope of having the child in her care since the making of the SGO, the grandparents sought the legal and psychological security offered by adoption. On 18 September 2018 the grandparents were granted permission to apply for this.
On 13 February 2020 the trial judge (HHJ McKinnell) refused the application for an adoption order in favour of the existing special guardianship order. The grandparents appealed.
On 17 June 2020 the Right Honourable Lady Justice King, the Right Honourable Lady Justice Asplin and Mr Justice Keehan heard the appeal. At the outset of the hearing, the Court of Appeal considered an application made on behalf of the grandparents to admit two new statements in evidence, a joint statement by them and a statement from the mother’s sister. The statements related to events which took place on the day that the judgment was given on the adoption application. The first matter, that the mother had left her psychiatric hospital without permission or the knowledge of the nursing staff, had been made known to the trial judge at the hearing. The second matter related to a telephone call made by the mother to her sister in the late evening of that day, in which the mother made various threats.
Counsel for the grandparents focused on the following principal matters:
- The judge had failed to sufficiently consider the legal and psychological security offered by adoption;
- She had failed to take account of the serious adverse impact of the mother’s aggressive conduct;
- She had failed to consider the potential for, risks of and consequences of such conduct in the future;
- She had failed to consider the benefits for the child of having a legal father via an adoption order;
- She had placed excessive weight on the skewing of family relationships via an adoption order; and
- She had failed to have regard to the cultural approach of the maternal family-to-family titles, roles and relationships which were more fluid and flexible than that traditionally practised in this jurisdiction.
Allowing the grandparents’ appeal, the Court of Appeal made an adoption order in their favour, dispensing with the mother’s consent. It was held that important and relevant welfare factors had not been taken into account by the trial judge and that she had given too much weight to the potentially detrimental consequences for the child and for the mother of terminating their legal relationship.
Under section 1 of the Adoption and Children Act 2002, whenever a court is coming to a decision relating to the adoption of a child, the paramount consideration of the court must be the child’s welfare, throughout his life. The court must also, at all times, bear in mind that any delay in coming to the decision is likely to prejudice the child’s welfare.
Further, section 1(4) of the Adoption and Children Act 2002 sets out a list of considerations, known as the “welfare checklist”, under which the court must have regard to:
- The child’s ascertainable wishes and feelings regarding the decision,
- The child’s particular needs,
- The likely effect on the child throughout his life of ceasing to be a member of the original family,
- The child’s age, sex, background and any other relevant characteristics,
- Any harm which the child has suffered or is at risk of suffering,
- The relationship which the child has with relatives, including:
- The likelihood of any such relationship continuing and the value to the child of its doing so,
- The ability and willingness of any of the child’s relatives to provide the child with a secure environment in which the child can develop, and otherwise to meet the child’s needs,
- The wishes and feelings of any of the child’s relatives regarding the child.
Re T was not a decision about whether the grandparents could care for the child, as that decision had already been taken and the child was in his long-term home. The Court of Appeal needed to decide whether an adoption order was necessary and proportionate, and whether or not it would be in the child’s best interests to remain under an SGO or to be adopted. But, what makes this case “unusual”?
Firstly, this case involved the adoption of a child by family members. Normally, special guardianship is considered sufficient for family members, since this confers superior parental responsibility, but does not end the legal relationship between the child and his/her birth parent(s). A schedule of main differences between adoption orders and special guardianship orders was helpfully appended to the judgment in the case of Re AJ (Adoption Order Or Special Guardianship Order)  (1 FLR 507) and was referred to in Re T. You can find the schedule at the bottom of this post.
Secondly, the applicants were already in possession of a special guardianship order when they requested an adoption order from the Court of Appeal. However, the circumstances in Re T, which included extreme threats and behaviour from the birth mother towards the child, the grandparents and members of the wider family, meant “only an adoption order will provide [the child] with the degree of security he requires in his welfare best interests”.
Thirdly, the way in which the family’s black South African culture influenced the outcome of the case is a particular feature of this case, which may not apply to others. The grandmother explained their cultural approach to family relationships in the following terms: “Within our family culture, titles are assigned based on relationships and position and not solely on age, legal or biological ties. Hence, consistent family members and close family friends have taken ongoing roles as “grandparents”, “uncles”, “aunties” and “cousins”.” Unfortunately, having placed excessive weight on the skewing of family relationships if an adoption order was made, the trial judge seemed blind to the evidence that, in this particular family, given their culture, there would be no such skewing or confusion for the child. Significantly differing from traditional English family structures, the black South African cultural norms meant that, following the child’s adoption, family relationships, enacted roles and titles would remain as they had already been assigned. In fact, they strongly supported the child’s ability to develop his own identity and belonging.
The Court of Appeal agreed that the trial judge also gave excessive weight to the value of maintaining the only remaining legal relationship between the mother and the child, voicing concerns about the child’s “sense of loss which he is likely to feel” once adopted. Additionally, the fact that the mother was “very unwell and vulnerable” only seemed to encourage the trial judge to maintain the legal relationship, suggesting that she was overly concerned by the welfare of the mother, instead of the child. The Court of Appeal particularly condemned that the trial judge did not consider the potential benefits to the child and to the grandparents of removing the mother’s ‘rights’ to the child, because “as is amply demonstrated by past events, the mother justifies her aggressive and threatening actions based on her ‘rights’ to [the child].”
In addition, the Court of Appeal highlighted the limited extent to which the trial judge had referred to a fundamental positive consequence of making an adoption order: that the fatherless child would have a legal father (the grandfather). This should have featured in the welfare analysis, yet the trial judge had again failed to have proper regard to the specific cultural context, and resisted making an order that would result in the child growing up as the legal son of his grandparents because “he was in fact born into a different generation”. Fortunately, the Court of Appeal understood that it could only be positive for the child to “gain a legal father whom will be one of his primary carers and his main male, African/black […] positive role model.”
Fourthly, the admission of new evidence on appeal. Pursuant to Civil Procedure Rule 52.21(2), the Court of Appeal will not generally consider evidence that was not before the lower court. However, the court retains discretion to order new evidence. This discretion will be exercised where it furthers the overriding objective of dealing with the case justly, where the criteria in the case of Ladd v Marshall  (EWCA Civ 1) are satisfied, and where it is a matter of public interest. The Court of Appeal confirmed that the Ladd v Marshall criteria had been satisfied, meaning that the new statements by the grandparents and the mother’s sister (1) could not have been obtained with reasonable diligence, (2) would have had an important influence on the trial, and (3) were credible.
Moreover, the new evidence actually led to findings on appeal in relation to the mother’s enduring and serious mental health problems. The court was satisfied that the mother was abusive, aggressive and threatening towards the grandparents and her sister, such that if the child were ever exposed to her conduct, it would cause him very significant emotional and psychological harm.
The fifth and final unusual feature of the case is that the adoption order was made at the appeal hearing rather than remitting for re-hearing. Faced with the prospect of remitting the application to a different judge (which no doubt would have meant further delay), the court chose to grasp the nettle and make the adoption order itself. Bearing in mind that any delay is likely to prejudice the child’s welfare, and in light of the backlog of cases as a result of the measures taken to control the Covid-19 pandemic, the case would not otherwise have been heard for many, many months.
The case of Re T is certainly interesting as it has distinguishable and unusual facts, which ultimately merited the award of an adoption order in circumstances where a special guardianship order was in place.
The Court of Appeal ultimately favoured the making of an adoption order, the superior benefits of an adoption order being that it: (1) reflected the reality of the child’s life with his grandparents now and throughout the whole of his life; (2) provided the child and the grandparents with the security and reassurance that the child’s future life was securely and permanently with them in fact and in law; (3) severed the mother’s legal relationship with the child, but it removed the mother’s ability to interfere in his life; (4) removed the obligation on the grandparents to seek the mother’s consent for certain steps to be taken in the child’s life; (5) enabled the step-grandfather to be the child’s legal father as well as his emotional, social and psychological father; and (6) sent the clear message to the wider world that the child was lawfully the grandparent’s child.
Whilst the Court of Appeal acknowledged that an adoption order, in and of itself, was unlikely to prevent abusive and threatening future conduct by a birth parent, just as special guardianship orders fail to prevent such conduct, the dangerous behaviour exhibited by the mother in Re T represented a long term continuing risk to both the child and the grandparents, making it an absolute priority in the child’s interests to provide them with as much legal and psychological security as could possibly be achieved.
Schedule (Re AJ)
|SCHEDULE OF MAIN DIFFERENCES BETWEEN|
SPECIAL GUARDIANSHIP ORDERS & ADOPTION
|1. STATUS OF CARER||Special Guardian:|
If related to child retains existing relative status
|Parent for all purposes:|
If related to child existing relative status changes
|2. STATUS OF CHILD||A child living with relatives/carers who remains the child of birth parent||The child of the adoptive parent as if born as a child of the marriage and not the child|
of any other person
therefore adoption includes a vesting of ‘parenthood’
Sec 39(1)&(2)AA 1976/Sec 67 ACA 2002
|3. DURATION OF ORDER||Ceases automatically on reaching 18 if not revoked by court earlier|
?whether also ceases on death
The legal relationship created is therefore time limited and not lifelong
Sec 91(13)CA 1989
The legal relationship is lifelong
Sec 39(1) AA 1976/Sec 67 ACA 2002
|4. EFFECT ON BIRTH PARENT PR||PR retained by birth parent|
SG can impose limitations in use (see 6 below)
Sec 14C(1)&(2) CA 1989
|Birth Parent PR extinguished|
Sec 39(2) AA 1976/Sec 46 ACA 2002
|5. CARER’S PR||PR vests in special guardian/s|
Sec 14C(1)&(2) CA 1989
Subject to limitations (see 6 below)
|PR vested in adopter/s|
S 39(1) AA 1976/49 ACA 2002/S 2 CA 1989
No limitations (but see joint operation* below)
|6. LIMITATION/RESTRICTION OF PR |
(a) removal from jurisdiction
| (a) Up to three months without leave, thereafter only with written consent of all PR holders or leave of court unless court gave general leave on making SG order|
Sec 14C(3)(b)&14C(4)/14B(2)(b) CA 1989
|(a) No restriction|
|(b) change of name||(b) Can not change surname without written consent of all PR holders or order of the court |
|(b) No restriction|
Name change may take place at time of making adoption order or thereafter
|(c) consent to adoption||(c) Consent required from birth parents and special guardians or court must dispense with consent of birth parents and special guardians|
Sec 19,20,52 & 144 ACA 2002/14C(2)(b)CA 1989
|(c) Consent required from adopters only or court must dispense with consent of adopters only|
|(d) medical treatment||(d) May be difficulties where each special guardian agrees but birth parents do not in the following circumstances:|
Sterilisation of a child:
This is the example given in the government guidance to SGO in “Every Child Matters” in
Relation to effect of section 14C(2)(a) – no authority is cited
See Re J  1 FLR 571
Suggests that like sterilisation the consent of all PR holders would be required for this procedure
|(d) No restrictions where each adoptive parent agrees (subject to age/Gillick competence of child) on giving consent for medical treatment|
*However where adoptive parents themselves disagree in these scenarios a court order may be required (see below)
|(d) medical treatment contd||Immunisation:|
See Re C  2FLR 1095
This added contested immunisations to the small group of important decisions where the consent of both parents was required
Life prolonging/Life shortening:
If the above scenarios require consent of all with PR surely it must then extend to issues of whether treatment should be given or withheld in terminal cases
Sec 14C(1)(b) with (2)(a)
Ss1 does not effect the operation of any enactment or rule of law which requires the consent of more than one person with PR in a matter effecting the child
If consent of all PR holders is required for these type of decisions does this then impose a duty upon SG to consult with birth parents in advance and to bring the matter back to court for determination if birth parents indicate an objection?
*Sec 2(7) CA 1989
Where more than one person has PR for a child each may act alone and without the other but nothing in this part shall be taken to affect the operation of any enactment which requires the consent of more than one person in a matter affecting the child
|(e) voluntary accommodation ||(e) If SG objects LA cannot accommodate child unless court order|
If all SGs consent but birth parents object would appear that LA cannot accommodate child unless court order if birth parent willing and able to provide accommodation or arrange for accommodation to be provided
|(e) where adoptive parents agree they can accommodate voluntarily|
|(e) voluntary accommodation contd|
(f) removal from voluntary
(g) consent to marriage under 18
|This is not the case if there is in force a residence order and the residence order holder consents nor if there is a care and control order pursuant to wardship or inherent jurisdiction and the person in whose favour the order is made consents.|
(f) Any person may remove from voluntary accommodation at any time
This is not the case if residence order holder of carer under wardship/inherent jurisdiction agrees to the voluntary accommodation
How is the ‘exclusive’ nature of the SG’s PR intended to operate in these circumstances ?
It appears that the statute requires the consent of all PR holders therefore if SGs consent to accommodation but parents do not the parents can simply remove the child.
Sec 20 (7)(8) &(9) CA 1989
(g) if all SG agree no restriction
the Marriage Act 1949 has been amended to enable SGs to give valid consent where SGO in force (unless also care order in force)
sec 3(1), (1A)(a)&(b)
(f) adoptive parents can remove from voluntary accommodation
(g) if all agree no restriction
|7. DEATH OF CHILD||Special guardian must notify parents with PR|
Sec 14C(5) CA 1989
Special guardians may not be able to arrange for burial/cremation in circumstances where parents wish to undertake such a task if the SGO ends on death
See by way of analogy
R-v-Gwynedd CC ex p B  2FLR
|No requirements for notification|
The rights and duties of legal parents do not end on death therefore would be no such conflict
|8. REVOCATION OF ORDER||Specific statutory provision for birth parents to apply for discharge of SGO with leave of the court, leave not to be granted unless there has been a significant change of circumstances|
Specific statutory provision for court to discharge of its own motion even where no application in any ‘family proceedings’
Sec 14D CA 1989
|No statutory provision for revocation|
In wholly exceptional circumstances court may set aside adoption order, normally limited to where has been a fundamental breach of natural justice. See for example Re K Adoption & Wardship  2FLR 221
|9. FUTURE APPLICATIONS BY |
(c) Prohibited Steps
(d) Specific Issue
(a) Leave required
(b) no automatic restriction
(c) no automatic restriction
(d) no automatic restriction
Sec 10(4, (7A)&(9) CA 1989
A parent is entitled to apply for any section 8 order except residence where is SGO
Sec 10(2)(b), (4), (9)
|10. RESPONDENTS TO FUTURE LEGAL|
PROCEEDINGS RE CHILD
|Birth parents would be respondents in addition to the SGs to any applications in relation to the child for Section 8 orders, EPOs, Care /Supervision Orders, Secure accommodation etc||Only Adopters would be automatic respondents|
|11. MAINTENANCE||Does not operate to extinguish any duty on birth parents to maintain the child||Operates to extinguish any duty on birth parents to maintain the child|
Sec 12(3)(b) AA1976/Sec 46(2)(d)ACA 2002
|12. INTESTACY||Child placed under SGO will not benefit from the rules relating to intestacy if the SGs die intestate||Adopted Child will have rights of intestate succession|