G (A Minor), In re

The House of Lords considered the scope of section 20 of the Adoption Act 1976 as amended by the Children Act 1989 and whether a freeing order made under section 18 can be revoked where the parent seeking revocation cannot safely be given sole and unfettered parental responsibility but undertakes that, upon revocation, the local authority will obtain a care order under the Children Act 1989. The court held that section 20 is discretionary, must be construed in the context of the wider statutory regime governing children, and does not prohibit revocation where the welfare of the child can be protected by consequential orders under the Children Act 1989 (for example, a care order). The Lords allowed the appeal and ordered revocation of the freeing order, conditional on a care order being made under section 31 of the Children Act 1989.

This appeal arose from an application under section 20 of the Adoption Act 1976 to revoke a freeing order made under section 18. The child, M, had been placed for adoption after a freeing order in 1993 but the prospective adopters later declined to proceed; thereafter adoption did not materialise and the child required specialist residential schooling. The mother applied to revoke the freeing order more than 12 months after it was made and accepted that if revocation were granted she would not oppose the local authority applying for a care order under the Children Act 1989.

Procedural history:

• Freeing order made by His Honour Judge Willcock Q.C. on 11 November 1993.
• Mother applied under section 20 in December 1994; Judge Willcock refused revocation in October 1995, making limited contact orders instead.
• Court of Appeal ([1996] 2 F.L.R. 398) refused to revoke, construing section 20 as allowing only unconditional revocation which would vest sole parental responsibility in the parent, and held that the statute did not permit conditional revocation linked to a care order.
• Appeal to the House of Lords.

Issues framed:

1. Whether section 20 of the Adoption Act 1976 permits revocation of a freeing order where revocation would not result in the parent having sole and unfettered parental responsibility because a care order under the Children Act 1989 would be obtained.
2. Whether the Adoption Act 1976 must be read as a self-contained code precluding concurrent use of the Children Act 1989 powers to protect the child following revocation.

Reasoning: The House of Lords emphasised that parental responsibility is a concept common to both Acts and that section 20 is discretionary and must be construed in context. The court rejected the view that the Adoption Act 1976 operates as a complete code insulated from the Children Act 1989. Revocation restores the parent to parental status but does not automatically revive earlier care orders; this does not preclude the exercise of Children Act powers consequentially. Where welfare can be secured by a care order, the court has jurisdiction to make revocation conditional on such orders. Applying those principles, because the mother accepted a care order and the local authority undertook to apply, the Lords allowed revocation to take effect only upon the making of a care order under section 31 of the Children Act 1989.

Appeal allowed. The House of Lords held that section 20 of the Adoption Act 1976 is discretionary and must be read in the context of the Children Act 1989; the court has jurisdiction to revoke a freeing order even where the parent cannot safely be given sole parental responsibility provided that the child's welfare can be protected by consequential orders (for example a care order under section 31 of the Children Act 1989). The freeing order was ordered revoked, to take effect only upon the making of a care order.

Freeing order made by His Honour Judge Willcock Q.C. (11 November 1993). Judge Willcock refused the mother's section 20 application in October 1995. The Court of Appeal (Butler-Sloss and Saville L.JJ. and Douglas Brown J.) refused revocation ([1996] 2 F.L.R. 398). The House of Lords allowed the appeal ([1997] UKHL 16).