G (Children), Re

In care proceedings where children are subject to care orders and the approved care plan is adoption, the unresolved question of post-adoption contact does not necessarily make freeing orders premature. The court must assess the overall picture, including the children’s long-term interests, family and sibling relationships, the need for a settled permanent placement, expert evidence and the prospective adopters’ position. Adoptive parents’ parental responsibility carries substantial weight, while future contact may be reconsidered if circumstances change. A decision to free children before adopters are identified can therefore fall within the judge’s discretion. In a child case without a stay, where adoption is actively pursued, appeal time limits should be strictly observed. Subsequent placement may also make further litigation contrary to the children’s interests.

Swindon County Court, His Honour Judge Wade, made care orders for two girls and approved a plan for adoption. On 14 May 2004 he made freeing orders under the Adoption Act 1976 and dispensed with both parents’ agreement on the ground that it was unreasonably withheld. Permission to appeal was refused below.

The children’s guardian and their mother renewed applications to the Court of Appeal for permission to appeal and an extension of time. By the hearing, prospective adopters had been approved and the children had been placed with them. The guardian argued that freeing was premature while parental and sibling contact remained beneficial, and that contact should instead be considered in adoption proceedings. The court also considered arguments concerning separate representation of the siblings and Articles 6 and 8 of the ECHR.

Lord Justice Wall gave the leading judgment. Lord Justices Neuberger and Keene agreed with his reasons.

1. Permission and extension. The applications for permission to appeal and for an extension of time were refused. The appeal lacked sufficient merit, and the delay was not justified.
2. Freeing orders. It was not an error to make freeing orders before prospective adopters had been identified merely because post-adoption contact remained an issue. The children were in care under care orders, the care plan was adoption, and adoption had been supported in the care proceedings. The guardian’s submission that freeing should always await a specific adoptive placement went too far.
3. Assessment of the children’s interests. The judge was required to consider the overall picture and the children’s long-term interests. That included the need for secure and permanent placements, family and sibling ties, the likely effect of continuing direct contact on settling and bonding, the expert evidence and the prospective adopters’ position. The judge was entitled to prefer the psychologist’s evidence and to conclude that the decision to free the children was open to him as a matter of fact and discretion.
4. Contact. Once adoption takes place, the adopters become the children’s parents and exclusively hold parental responsibility. Their position must receive substantial weight. On the facts, indirect letter-box contact, with direct contact to be reconsidered if circumstances changed, was the realistic course. Similar considerations applied to contact between the siblings. A parent retained a possible route to seek permission to apply for contact after adoption.
5. Changed circumstances and time limits. Subsequent placement meant that setting aside the freeing orders would probably lead only to adoption proceedings with the same result, while causing delay, expense and further stress. In a child case without a stay, where the children were in care under an adoption plan and the local authority was actively seeking adopters, appeal time limits had to be strictly observed.
6. Representation. Separate representation of the other siblings in the freeing proceedings was neither necessary nor desirable where the judge had heard the contested care proceedings concerning the whole family and the guardian had represented all the children.

1. Court of Appeal (Civil Division): On 20 August 2004, refused permission to appeal and refused an extension of time.
2. Swindon County Court: On 14 May 2004, His Honour Judge Wade made freeing orders for the two children and dispensed with parental agreement on the ground that it was unreasonably withheld. Permission to appeal was refused.