Re B (A Child)

In adoption proceedings, the court must assess welfare on the child’s actual circumstances at the date of decision. It must weigh the rights and interests of all family members and parties, while treating the child’s welfare as the first, or paramount, consideration.

A child’s firmly expressed wishes may properly receive close attention. This does not confuse welfare with wishes where the judge has considered welfare generally. An appellate challenge to an adoption order should be made before the child’s formal meeting with the judge, so that a stay can be considered; delay may materially diminish the prospect of success.

The mother and her husband applied to adopt S, aged ten. Her natural father cross-applied for parental responsibility and contact. Judge Mettyear dismissed the father’s applications on 14 May 2001 and concluded that adoption was required by S’s welfare. Another county court judge made the adoption order shortly afterwards.

The father sought permission to appeal about a month later. He argued that the judge had given excessive weight to S’s wish to have no relationship with him and had wrongly allowed adoption to sever their natural tie. The central issue was whether the county court had erred in its welfare assessment.

1. Permission to appeal was refused. Lord Justice Thorpe held that the county court had applied the welfare test in section 6 of the Adoption Act 1976. The judge had considered welfare generally, not merely S’s wishes.

2. The correct approach, consistently with Soderback v Sweden [1999] 1 FLR 250, was to weigh the rights and interests of every family member and party. The child’s interests remained the first, or paramount, consideration. Although the mother’s interception of the father’s communications was unreasonable and unfair to him, the judge had to decide the case as it stood, rather than as it might have stood if events had been handled differently.

3. S’s emphatic wish to be adopted and to have no relationship with her father could properly be given close attention in that assessment. Sir Martin Nourse agreed that the judge had not confused welfare with wishes and had been entitled to make the adoption order.

4. The court distinguished Re B (Adoption by one natural parent to exclusion of other) [2001] 1 FLR 589. That case concerned adoption by one natural parent to exclude the other, leaving the child with one parent. This adoption consolidated S’s place in a new family, which also included a young half-sibling.

5. Thorpe LJ added obiter practice guidance. A party seeking to challenge an adoption order should act before the child’s formal meeting with the county court judge, allowing a stay to be considered. The father had not done so, and the completed change of status diminished his prospects. The court noted, without deciding the foundation of the order, that the county court had directed indirect post-adoption contact.

• Court of Appeal (Civil Division): refused the father permission to appeal from the adoption order and the dismissal of his applications for contact and parental responsibility.

• Kingston upon Hull County Court: Judge Mettyear dismissed the father’s applications on 14 May 2001 and concluded that adoption should be ordered. Another county court judge subsequently made the adoption order.