Re S (A Child)

In deciding whether a parent is unreasonably withholding consent to a freeing order under section 16(1)(b) of the Adoption Act 1976, the court must assess the parent’s present circumstances and what the parent may realistically offer the child. The child’s welfare, the disruption of an existing placement and the loss of an adoption opportunity are important considerations, but none is automatically conclusive. Where the first-instance judge has directed himself correctly, heard the evidence and reached a rational discretionary conclusion, the Court of Appeal should not interfere merely because it might have attached different weight to the competing factors.

The local authority obtained a care order in respect of C, whose teenage mother had previously been unable to care for her. The care plan contemplated adoption, and contact was reduced. The mother later underwent a substantial change in circumstances, formed a stable relationship and obtained employment. She opposed the local authority’s application for a freeing order but appeared without representation before His Honour Judge O’Rourke in the Leicester County Court Family Division.

The judge refused the application, finding that the local authority had not shown that the mother’s withholding of consent was unreasonable. The local authority and guardian ad litem appealed, contending that insufficient weight had been given to C’s welfare, the existing placement and the risks of relying on the mother’s changed circumstances.

1. Appeal dismissed. The question under section 16(1)(b) of the Adoption Act 1976 was whether the local authority had discharged the burden of showing that the mother was unreasonably withholding her consent to the freeing order.
2. The judge was entitled, and required, to assess what the mother had achieved and what she could offer C, notwithstanding that no application had then been made to discharge the care order or restore her active role in C’s life. Her changed circumstances and the evidence of her partner were therefore relevant to the statutory question.
3. The judge had considered the local authority’s arguments, including the importance of preserving the adoption placement and the prospective adopters’ care. Those matters were important, but they were not conclusive. The statutory inquiry was not determined solely by the advantages of adoption or by the disruption and uncertainty which might follow refusal of the freeing order.
4. The conclusion was one which another judge might not have reached and might be regarded as surprising. Nevertheless, the judge had directed himself by reference to the relevant authorities, assessed the witnesses and reached a rational discretionary conclusion. An appellate court should not intervene merely because it would have given greater weight to one consideration or less weight to another. No sufficient misdirection or other error justifying intervention had been shown.
5. The application was refused. A certificate was granted for legal aid assessment of the parties’ costs.

• Court of Appeal (Civil Division) dismissed the local authority’s appeal from the refusal of the freeing-order application.
• Leicester County Court Family Division, His Honour Judge O’Rourke, refused the local authority’s application for a freeing order on 18 January 2001.