S (Child as Parent: Adoption: Consent), Court of Appeal - Family Division, November 02, 2017, [2017] EWHC 2729 (Fam)

Issuing Organization:Family Division
Actores:S (Child as Parent: Adoption: Consent)
Resolution Date:November 02, 2017
 
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Neutral Citation Number: [2017] EWHC 2729 (Fam)

Case No: LS261/17 and LS307/17

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Royal Courts of Justice

Strand

London WC2A 2LL

Date: 2/11/2017

Before :

THE HONOURABLE MR JUSTICE COBB

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Re S (Child as parent: Adoption: Consent)

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Bridget Dolan QC and Brett Davies (instructed by Local Authority solicitor) for the Local Authority

Shaun Spencer (instructed by Ramsdens, Solicitors) for S (by a Litigation Friend appointed by Cafcass)

Lorraine Cavanagh (instructed by Switalskis, Solicitors) for T (by a Children's Guardian)

Hearing dates: 24 October 2017

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The Honourable Mr Justice Cobb :

Introduction

  1. An adoption order, involving the permanent severance of all family ties of a child, is one of the most significant of all court orders available in the law of England and Wales. Some, albeit relatively few, adoption orders are made with the consent of the birth parents; in the majority of applications for adoption orders, the court will need to consider whether the welfare of the child requires that parental consent be dispensed with. All parties in this case hope that the adoption of the 3-month old baby (`T') with whom I am concerned may proceed with the consent of the birth mother (`S'); she wishes to give her consent, but issue has arisen as to her competence to do so.

  2. S is a young person; she is under 16 years of age. S suffers from developmental delay and learning disabilities. Approximately 12 weeks ago, S gave birth to a baby (T). T was delivered by caesarean section under general anaesthetic. The putative father of the baby is an adult.

  3. S wishes nothing to do with the baby, T. She has not seen T. She has not named T. She did not want to know the gender of T, but has recently discovered this by accident; S then wanted to know T's given name. S does not want the father to have anything to do with T. T was placed with foster-to-adopt carers directly from the hospital, accommodated under section 20 Children Act 1989 (`CA 1989') with S's agreement. S wishes for T to be adopted, as soon as possible. Since the birth, S herself has been received into foster care, pursuant to an order under Part IV CA 1989.

  4. In September 2017, the Local Authority issued an application in the Family Division of the High Court pursuant to rule 14.21 and Part 19 Family Procedure Rules 2010 (`FPR 2010') seeking my directions in relation to adoption procedure; specifically, it sought (a) my authority not to notify the putative father of T's existence, and (b) directions in relation to obtaining S's consent to the placement of T for adoption and/or the adoption of T. As it happens, the putative father had (unbeknown to the Local Authority) been advised by the police of the existence of T, and so the issue at (a) above fell away. Following discussion at court at a directions hearing on 12 October 2017, the Local Authority issued an application for a placement order, in order that the Court could consider the widest range of case management and other powers in relation to the consent of S to the placement of the baby and/or adoption. That application was issued on 17 October 2017; I listed the case for argument on the issue of S's consent, and related matters, on 24 October 2017.

  5. All parties agree that the ultimate outcome of the current legal process is overwhelmingly likely to be the adoption of T. The route by which that objective is reached is more contentious.

  6. The central issue for determination is S's competence to consent to the placement of T for adoption, and T's adoption; in the event of S's incompetence on this issue, I am asked to consider the route by which T's legal status can be secured. That issue, and the associated issues arising on these facts, have been broken down as follows (taking them in the chronological and I believe logical sequence in which they arise):

    i) By what test does the court assess generally the competence of a child as a decision-maker?

    ii) Can a child parent give consent to accommodation of their child (under section 20 Children Act 1989), even if assessed to lack competence in other domains, including litigation competence in associated / simultaneous adoption or placement proceedings?

    iii) What is the test for establishing the competence of a child parent to consent to the placement and/or adoption of their baby?

    iv) Should steps be taken to help the child parent to reach a competent decision?

    v) In what factual circumstances is the section 31(2) CA 1989 `threshold' likely to be met in relation to a relinquished baby, so as to found jurisdiction for the making of a placement order under section 21(2)(b) ACA 2002?

    vi) Where a placement order is refused on the basis that the grounds in section 21(2) of the ACA 2002 are not established, and where there is also no valid consent to adoption, either because the child parent is not competent, or she declines to give consent, how does the court proceed towards adoption for the baby?

    Statutory scheme under the Adoption and Children Act 2002 (`ACA 2002')

  7. Section 18 of the ACA 2002 provides the jurisdiction for an adoption agency to place a child for adoption.

  8. Section 19 provides the arrangements for the giving of consent to placement for adoption:

    Section 19: Placing children with parental consent

    ``(1) Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child--

    (a) being placed for adoption with prospective adopters identified in the consent, or

    (b) being placed for adoption with any prospective adopters who may be chosen by the agency,

    and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.

    (2) Consent to a child being placed for adoption with prospective adopters identified in the consent may be combined with consent to the child subsequently being placed for adoption with any prospective adopters who may be chosen by the agency in circumstances where the child is removed from or returned by the identified prospective adopters.

    (3) ...

    (4) ...

    (5) This section is subject to section 52 (parental etc. consent).''

  9. In relation to consent to adoption, the relevant provision is section 20 ACA 2002:

    Section 20: Advance consent to adoption

    ``(1) A parent or guardian of a child who consents to the child being placed for adoption by an adoption agency under section 19 may, at the same or any subsequent time, consent to the making of a future adoption order.

    (2) Consent under this section--

    (a) where the parent or guardian has consented to the child being placed for adoption with prospective adopters identified in the consent, may be consent to adoption by them, or

    (b) may be consent to adoption by any prospective adopters who may be chosen by the agency.

    (3) A person may withdraw any consent given under this section.

    (4) A person who gives consent under this section may, at the same or any subsequent time, by notice given to the adoption agency--

    (a) state that he does not wish to be informed of any application for an adoption order, or

    (b) withdraw such a statement.

    (5) ....

    (6) This section is subject to section 52 (parental etc. consent)''.

  10. It will be seen that the foregoing provisions refer to the `consent' provision of section 52 ACA 2002. This provides:

    Section 52: Parental etc. consent

    ``(1) The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless the court is satisfied that--

    (a) the parent or guardian cannot be found or [lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent], or

    (b) the welfare of the child requires the consent to be dispensed with.

    (2) The following provisions apply to references in this Chapter to any parent or guardian of a child giving or withdrawing--

    (a) consent to the placement of a child for adoption, or

    (b) consent to the making of an adoption order (including a future adoption order).

    (3) Any consent given by the mother to the making of an adoption order is ineffective if it is given less than six weeks after the child's birth.

    (4) The withdrawal of any consent to the placement of a child for adoption, or of any consent given under section 20, is ineffective if it is given after an application for an adoption order is made.

    (5) ``Consent'' means consent given unconditionally and with full understanding of what is involved; but a person may consent to adoption without knowing the identity of the persons in whose favour the order will be made.

    (6) ``Parent'' (except in subsections (9) and (10) below) means a parent having parental responsibility.

    (7) Consent under section 19 or 20 must be given in the form prescribed by rules, and the rules may prescribe forms in which a person giving consent under any other provision of this Part may do so (if he wishes).

    (8) Consent given under section 19 or 20 must be withdrawn--

    (a) in the form prescribed by rules, or

    (b) by notice given to the agency.

    (9) ...

    (10) ...''

  11. Where parents have given a valid consent to placement for adoption -- unconditionally and with full understanding of what is involved -- the local authority will be `authorised' to place the child for adoption. In such circumstances, there is no obligation or power to apply for or make a placement order under section 21 of the ACA 2002; this was the outcome of the case of JL in Re JL and AO [2016] EWHC 440 (Fam). If a placement order is sought, the relevant provision is section 21:-

    Section 21: Placement orders

    ``(1) A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.

    (2) The court may not make a placement order in respect of a child unless--

    (a) the child is subject to a care order,

    (b) the court is satisfied that the conditions...

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