F (Children)

Where adoption proceedings under the Adoption and Children Act 2002 concern children freed for adoption under the Adoption Act 1976, the transitional provisions preserve the 1976 Act procedure unless the 2002 Act or the Family Procedure (Adoption) Rules 2005 requires otherwise. Birth parents whose parental responsibility was extinguished by a freeing order have no right to notice of the final adoption hearing. The adoption agency’s continuing duty to provide limited information remains. A discretion to require attendance must be exercised judicially and for good reason. The court left open when such attendance might be appropriate in other cases. Splitting final hearings may be proper in suitable cases under the 2002 Act.

Prospective adopters of two brothers appealed against an order of His Honour Judge Rylance requiring the children’s birth parents to receive notice of the adoption application and final hearing, and permitting them to file evidence and attend. The children had been freed for adoption under section 18 of the Adoption Act 1976 in January 2005. Adoption proceedings were commenced under the Adoption and Children Act 2002 in March 2006, after the new Act had come into force.

The central issue was whether the transitional provisions preserved the former procedural position, or whether the 2002 Act and the Family Procedure (Adoption) Rules 2005 required notice or participation by birth parents whose parental responsibility had ended.

The appeal was allowed. The order requiring notice to the children’s birth parents was set aside. The adoption proceedings were to proceed to a final hearing as soon as possible without notice to them.

1. Paragraph 7(1) of Schedule 4 to the Adoption and Children Act 2002 means what it says. Where adoption proceedings under the 2002 Act concern a child freed for adoption under section 18 of the Adoption Act 1976, the procedure under the 1976 Act continues unless the 2002 Act or the Family Procedure (Adoption) Rules 2005 requires otherwise. The fact that the 2002 Act abolished freeing orders did not alter that transitional position.
2. The freeing orders extinguished the birth parents’ parental responsibility and reduced their status to that of former parents. Section 19 of the 1976 Act continued to apply. Its duty was limited to informing them, after the prescribed period, whether an adoption order had been made and, if not, whether the children were living with persons with whom they had been placed for adoption. The agency had complied with that duty and had made appropriate contact arrangements.
3. Paragraph 7(3) of Schedule 4 treated the third condition in section 47(6) of the 2002 Act as satisfied. Consequently, sections 47(3) and 47(5) did not apply to this application. The birth parents therefore had no procedural right to oppose, attend or make further representations at the adoption hearing.
4. The construction of rule 32(4) of the 2005 Rules was left for a case in which it directly arose. Even assuming that it gave the court an unfettered discretion to direct any person to attend, that discretion had to be exercised judicially on the facts of the individual case and for good reason. On these facts, no judge could properly have required the birth parents to attend.
5. The court made brief observations that splitting final adoption hearings may be wholly correct in appropriate cases under the 2002 Act, particularly where it prevents unwanted contact between birth parents and prospective adopters. That practice was unnecessary in this transitional case. The court declined to give wider guidance on when a birth parent without parental responsibility should be directed to attend.

• Court of Appeal (Civil Division): Appeal allowed. The order made below was set aside, and the adoption proceedings were directed to proceed without notice of the final hearing to the children’s birth parents.
• Guildford County Court: His Honour Judge Rylance ordered that the birth parents be given notice of the adoption application and hearing, and permitted them to file statements and attend if they wished.