L (A Child: Step-Parent Adoption): Incorrect approach not grounds to set aside step-parent adoption

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I think all of the adoptions I dealt with in the years that I was practising were step-parent adoptions. The usual scenario, obviously, was that the mother had formed a relationship with another man, who she had married, and the natural father was nowhere to be seen. Of course, efforts were made to contact him, but these usually came to nothing. I don't recall dealing with any cases in which he objected to the adoption.

I was therefore interested to come across the judgment in L (A Child: Step-Parent Adoption) this morning, which concerned a father's (as I shall call him) appeal against a step-parent adoption (well, strictly, it was not (yet) a step-parent adoption as the mother was only engaged to the 'step-parent - nevertheless I shall call the mother's fiancé the 'step-parent', as did Lady Justice King, giving the leading judgment of the Court of Appeal).

For the purpose of this post I am going to keep the facts of the case short. It concerned a boy born to unmarried parents in 2009. The boy and the father had contact between about 2012 (when the father first found out about the boy's existence) and 2016, when contact broke down. The father was granted parental responsibility in 2015.

There has been no contact since 2016, and we are told that there is no prospect of it being in the boy's best interests for it to be resumed in the foreseeable future.

In 2015 the mother began a relationship with the step-father. They became engaged, and hope to marry later this year. We are told that the step-father has become boy's 'psychological father', and that the boy indicated that he did not want anything more to do with the father.

In December 2019 the step-father applied to adopt. The father, representing himself, opposed the adoption. Both the adoption social worker and the Children's Guardian were strongly of the view that adoption was in the boy's interests. The judge agreed, and the adoption order was made.

The father appealed. The issue, as King LJ explained, was as follows:

"...whether the adoption order should now be set aside in circumstances where the judge did not have her attention drawn to and did not therefore refer in her ex tempore judgment to: (i) the leading domestic case on step-parent adoptions Re P (a Child) ... or the European case of Söderbäck v Sweden ... or (ii) the provisions of s.46(6) Adoption and Children Act 2002"

As King LJ went on to explain:

"...the combination of Söderbäck and Re P serve to emphasise that there is an important qualitative difference in the degree of interference with the Article 8 rights of a child and any non-consenting parent as between so called stranger adoptions on the one hand and step-parent adoptions on the other.

"The critical difference as between stranger adoptions and step-parent adoptions was summed up by McFarlane LJ [in Re P] when he said that a stranger adoption is only justified when 'nothing else will do' whereas step-parent adoption involves a lower degree of interference and may be more readily justified."

And s.46(6) states that:

"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 the views of the parties to the proceedings."

As to the two cases, King LJ concluded that:

"No fault can be found with the judge's application of the statutory requirements relevant to the application which included consideration of the adoption welfare checklist. The judge was unaware that the ECtHR and McFarlane LJ had prescribed a lower test in cases where the application for adoption is made by a step-parent rather than by a stranger. As a consequence, the judge applied the more stringent Re B, 'nothing else will do' test before concluding that an order for adoption was in [the boy's] best interests and that the making of the order was proportionate in Article 8 terms. In my judgment there is nothing in the judge's judgment which would have rendered it susceptible to a successful appeal by reference to the Re B test. It follows that given that the greater must include the lesser, there can be no basis for interfering with the judge's welfare based decision, a decision which was wholly in line with the objective evidence of the social worker and Children's Guardian and accorded with [the boy's] strongly expressed wishes.

"It follows in my judgment that the judge's failure specifically to refer to the approach in Re P does not on analysis undermine the order she made."

As to s.46(6), King LJ concluded that there was "just enough in the judgment to satisfy me that the court fulfilled its obligation under s.46(6) ACA".

Accordingly, the appeal should be dismissed, although King LJ left this warning:

"In reaching that conclusion I am not endorsing the approach seen in this judgment. A parent who is having their consent set aside and an adoption order made despite their opposition, is entitled to have the issue of contact properly considered and specifically dealt with, either in the judgment itself or in a recital, whichever is more appropriate on the facts of the case."