B (a Child) v RP & Ors

A sole adoption application by a natural parent requires two separate questions: where the child should live, and which legal order should regulate that arrangement. Even where placement with the applicant is plainly beneficial, adoption should be made only where it promotes the child’s welfare throughout childhood and there is a reason justifying exclusion of the other natural parent.

Adoption Act 1976 section 15(3) does not impose an “exceptional” or “special circumstances” test, but the reason must justify removing the other parent from parental responsibility and the child’s wider legal family and lineage. Adoption is a serious interference with Article 8 rights and must be necessary and proportionate. Where residence and other protective orders provide adequate security, sole adoption may be disproportionate.

The father of a child born to unmarried parents had cared for her continuously from infancy and had parental responsibility under the Children Act 1989. The mother supported his care, consented to adoption, and wished to have only indirect contact.

Bracewell J made a sole adoption order under the Adoption Act 1976, finding that the mother’s rejection of the child, consent and intended absence justified excluding her. The Official Solicitor, acting as guardian ad litem, appealed. The central issues were whether adoption promoted the child’s welfare throughout childhood and whether there was a reason justifying exclusion of the mother under section 15(3).

1. Appeal allowed. The adoption order was set aside. Subject to further representations, a residence order in favour of the father until the child reached majority was substituted, together with powers concerning a passport and travel and an order under section 91(14) of the Children Act 1989.
2. Per Lady Justice Hale, the court must distinguish between the child’s placement and the legal order governing that placement. The first question was plainly answered in favour of the father. The second required careful comparison of adoption with the available orders securing the child’s home.
3. Section 15(3) of the Adoption Act 1976 requires some reason justifying exclusion of the other natural parent. It does not require “exceptional” or “special” circumstances. The relevant comparison is with other sole adoption applications by natural parents, and the reason must justify removing the parent from parental responsibility and from the child’s legal family and lineage. Bracewell J had therefore applied too strict a test insofar as she required exceptional circumstances.
4. An adoption order removes one half of the child’s legal family. It interferes with family life under Article 8 of the Convention. The interference must be lawful, pursue a legitimate aim and be necessary and proportionate. The more drastic the interference, the greater the justification required.
5. In this case, the child already had a secure home and full legal relationship with her father. Residence, specific issue and prohibited-steps orders, passport arrangements, guardianship provisions and section 91(14) protection could provide additional security without extinguishing the mother’s residual legal relationship. Sole adoption was therefore disproportionate to the child’s needs.
6. Dame Elizabeth Butler-Sloss, President, agreed and added that courts and local authorities should ordinarily consider joining an unmarried natural father to adoption proceedings and informing him of decisions affecting the child, subject to cases involving risks such as violence or danger to the mother.

• Court of Appeal (Civil Division): appeal from an adoption order made by Bracewell J in the Family Division of the High Court on 29 June 2000. The Court of Appeal allowed the appeal and set aside the adoption order.