In re G (A Minor) (Adoption: Freeing Order)

A court may revoke a freeing order where adoption is no longer likely within a short period, although the former parent is unfit to exercise sole and unfettered parental responsibility. A wish to resume parental responsibility includes a wish to exercise responsibility which is shared or restricted by a care order.

The powers under the Adoption Act 1976 operate alongside those under the Children Act 1989. Revocation may therefore be conditional upon a care order or another suitable protective order. The controlling consideration remains the child’s welfare. This construction restores appropriate parental rights and avoids leaving the child indefinitely in adoption limbo while preserving necessary public-law protection.

A freeing order under section 18 of the Adoption Act 1976 extinguished the mother’s parental responsibility for M and discharged an existing care order. The anticipated adoption subsequently failed. M had severe emotional and behavioural difficulties, and there was no immediate prospect of another adoptive placement.

The mother applied under section 20 to revoke the freeing order. The judge refused because M could not safely return to her and revocation would initially restore sole parental responsibility. The Court of Appeal, whose decision was reported at [1996] 2 F.L.R. 398, dismissed her appeal. It considered that section 20 permitted only unconditional revocation or refusal.

Before the House, the mother accepted that a care order should be made, and the local authority was prepared to apply for one. The issue was whether revocation could be combined with protective orders under the Children Act 1989.

1. Appeal allowed unanimously. Lord Browne-Wilkinson delivered the leading speech. Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Steyn and Lord Hoffmann agreed with his reasons and proposed order.
2. Per Lord Browne-Wilkinson, section 20 of the Adoption Act 1976 confers a discretion governed by the child’s welfare. The court is not required to revoke merely because the circumstances supporting the original freeing order have ceased. Revocation ordinarily restores sole parental responsibility and does not revive an earlier care order, but those consequences do not exhaust the court’s available powers.
3. The requirement that a former parent wishes to resume parental responsibility does not require a wish to obtain sole and unfettered responsibility. Parental responsibility may be shared and may be restricted by a care order. The Adoption Act 1976 is not an isolated or exhaustive code. Its powers may operate with those under the Children Act 1989, the inherent jurisdiction or other suitable powers.
4. A freeing order is a draconian but necessary means of facilitating an anticipated adoption. It extinguishes the former parent’s ordinary and statutory parental rights. Where adoption ceases to be an immediate prospect, retaining that order indefinitely may leave the child in adoption limbo and may cause injustice or harm. Changed circumstances may also mean that later opposition to adoption would no longer be unreasonable.
5. Where, after one year, no adoption is likely within a short period, the court may revoke the freeing order even though the former parent is unfit to exercise sole responsibility. It may make revocation conditional upon consequential orders sufficient to protect the child’s welfare.
6. M’s welfare would be fully protected because the mother accepted a care order and the local authority was prepared to apply for one. There was no justification for retaining a freeing order when adoption might never occur and was, at most, a long-term hope. The freeing order was revoked, taking effect only upon the making of a care order under section 31 of the Children Act 1989. No order was made as to costs.

1. House of Lords: Allowed the mother’s appeal unanimously and ordered conditional revocation of the freeing order.
2. Court of Appeal: Butler-Sloss and Saville L.JJ. and Douglas Brown J. dismissed the appeal, holding that section 20 did not permit revocation coupled with public-law intervention: [1996] 2 F.L.R. 398.
3. County Court: Judge Willcock Q.C. refused revocation because M could not safely return to the mother and an unconditional revocation would restore sole parental responsibility. He nevertheless ordered limited contact.