Tuesday, 4 December 2007

Re C v XYZ County Council [2007] EWCA Civ 1206

This robust judgment deals with the nature of the duty on a local authority to make enquiries into a child’s family where an adoption is in prospect. The conclusion is essentially that despite its wording, s1(4) of the Adoption and Children Act 2002 (“ACA02”) does NOT impose an absolute duty to make enquiries into the capacities and feelings of the families of the child where the welfare of the child dictates otherwise.

The child was the result of a one-night stand between a 19 year old woman and a person she would not name and with whom she had no continuing relationship. The woman lived independently, worked, and had left home at 17 following a fight with her mother. She resisted the idea she was pregnant; sought medical assistance only when in labour; did not want the child; and did not feel that it would be in the child’s interests to be cared for by her family nor by the father’s. She sought for the child to be adopted. Thorpe LJ emphasised how very unusual this situation was, and noted that it had not been encountered by any of the professionals who dealt with it.

It seems that because it did not know how to conduct proceedings, the local authority sought an interim care order, the thrust of the care plan being to hold the position whilst guidance was sought from the High Court as to what to do next. Thorpe LJ criticised this course – albeit very lightly and with sympathy for the local authority’s dilemma – on the unarguable basis that the threshold criteria were not made out where the only parent involved was not proposing to play any part in the life of the child, that child having been taken from the hospital by foster carers of whose care no criticism was due. He also noted that the pursuit of an ICO, however understandable a) introduced delay; b) obscured the availability of the fast-track adoption procedure under s19 of the ACA02 and; c) probably misled the local authority and the guardian for the child as to the nature of the investigations they had to make into the birth family.

In any event, the HHJ Taylor before whom the matter came, considered the Act and in particular the welfare checklist which appears in s1 thereof.

s1(4) provides that the ‘court or adoption agency MUST (my emphasis) have regard to... (c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family ... (f) the relationship which the child has with relatives... including... (ii) 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; (iii) the wishes and feelings of any of the child’s relatives... regarding the child.

Nowhere does the statute expressly provide that the compulsory words of s1(4) are subject to any exceptions and HHJ Taylor concluded that in contrast with the more discretionary approach allowed by the rules prior to the ACA02, the law was now plain and simple: the local authority was obliged to make enquiries into the extended families’ ability and preparedness to care. (He also reconciled this with principle, suggesting that otherwise the child would never be able to trace her family, but that was rejected on a factual basis by Thorpe LJ)

The Court of Appeal overturned HHJ Taylor. At paragraph 76 Thorpe LJ asserted:

In my judgment the Local Authority and court still has to exercise a discretion in what Miss Hamilton QC, counsel for the mother, has called the secret birth case as to whether to place the new born on the fast track to adoption under Section 19 or to explore a family placement.

He did not further explain why that might be so, though he had previously said that he agreed with Arden LJ who gave the first judgement.

Her reasoning , though long, does not to the writer’s mind bear much scrutiny. It is;

1. the appearance of the word ‘paramount’ in s1(2), i.e. that the interests of the child are paramount, means that as a matter of statutory interpretation, all other provisions in s1 of the Act have effect subject to s1(2) (paragraph 14);
2. though the court must have regard to the matters listed in s1(4) it is not obliged to act upon them (paragraph 16);
3. the Act does not prescribe the weight to be given to any of the matters listed in s1(4) so;
4. the weight to be given to them will be dictated by the paramount consideration in s1(2) (both paragraph 17);
5. the Act [containing the word ‘must’] is not prescriptive (also paragraph 17)

The writer’s difficulty with this is that Arden LJ has elided the gathering of the information with the treatment of it. She is entirely right to indicate in terms that the court can ignore the information that has been collected under s1(4), but she does not explain how the absolute statutory requirement to acquire that information can simply be ignored. That said, it will be a very rare case indeed in which counsel will have an opportunity to distinguish the judgment on this basis.

In conclusion then, the Court of Appeal has determined that the words of s1(4) do not mean what they say, and that there will be circumstances where a local authority is not obliged to seek the views of families of potentially adoptive children.

Inevitably this case touched on ECHR rights, the court finding it unnecessary in the light of its conclusion to discuss in any depth the mother’s right to privacy. In relation to the father’s right to family life, the court dealt with this peremptorily at paragraphs 31 and 32. As he did not have a relationship with the child or with the mother and had not expressed any wish so to do, no right existed.

The mother’s parents right is dealt with in the exceedingly dense second sentence in paragraph 39. That suggests that their right to a family life with the child – they DO have one – is not breached by not being told about the child since by preventing them from knowing, the court will have decided that the child’s welfare so dictated. With respect, this should perhaps read that their right IS breached, but that that breach is justified and proportionate by reference to the child’s welfare.

Finally, there are a couple of loose comments which I anticipate might be employed by local authorities or guardians to oppose family placements and promote adoption. These appear at paragraphs 15, 42 and 43 but in the writer’s view cannot be relied upon for what they appear to say.

Arden LJ at paragraph 15 wrote;

s1 does not privilege the birth family over adoptive parents simply because they are the birth family.

Later she wrote;

42. The local authority goes on to say that the ordinary rule should be that the near family and father should be identified and informed unless the court is satisfied that such enquiries would be inappropriate. The local authority submits that there is a growing trend towards involving the natural family and the father in such cases. It is no doubt true to say that there are a substantial number of cases where a child who would otherwise be placed for adoption is offered long term care by a member of the family.

43. I do not consider that this court should require a preference to be given as a matter of policy to the natural family of a child. S 1 does not impose any such policy. Rather, it requires the interests of the child to be considered. That must mean the child as an individual. In some cases, the birth tie will be very important, especially where the child is of an age to understand what is happening or where there are ethnic or cultural or religious reasons for keeping the child in the birth family. Where a child has never lived with her birth family, and is too young to understand what is going on, that argument must be weaker. In my judgment, in a case such as this, it is (absent any application by any member of the family, which succeeds) overtaken by the need to find the child a permanent home as soon as that can be done.

It is this last paragraph which contains the proper analysis. Case law would tend to suggest that in ALL cases the birth tie is important, not because of the interests of the family but because of the interests of the child to have its identity reflected in the family in which it grows up. So whereas what Arden LJ wrote in paragraph 15 is literally true, it would be wrong to argue that there is no trend in favour of birth families in adoption cases. Perhaps all the Court of Appeal should have said is that that trend will not be followed where it threatens the welfare of the child or introduces delay (s1(2) and 1(3)).