S & C (Children)

In adoption proceedings, the judge must evaluate children’s wishes and feelings carefully, especially where an older child is involved and the evidence is conflicting. The judge must address all material written and oral evidence and make findings on credibility and reliability. A brief judgment that omits significant evidence and fails to resolve a central evidential conflict is inadequate and may require the decision to be set aside and the application retried. The child’s welfare throughout childhood remains the court’s first consideration. Where adoption clearly provides permanence, security and stability, and the natural parent’s consent is recorded, those benefits may justify making the order despite the loss of the biological parental link.

Mr and Mrs C applied to adopt five children living in their household. The Brighton County Court refused the adoption applications and made joint residence orders in their favour. The judge relied substantially on the guardian’s assessment of the children’s wishes and feelings, but did not address contrary local-authority reports or the applicants’ oral evidence.

On appeal, the central issue was whether the judge had properly evaluated the evidence about the children’s wishes and feelings, particularly in relation to the older children. The position of T was considered separately because the relevant adults agreed that an adoption order should be made and the local authority was neutral.

The appeal was allowed unanimously. Lord Justice Thorpe gave the leading judgment, with Lord Justice Scott Baker and Lord Justice Maurice Kay agreeing.

1. Older children. The judge had to deal carefully with the children’s wishes and feelings, taking account of their differing ages and giving particular weight to the position of the nearly 14-year-old child. The evidence was materially divided: the local authority’s schedule 2 reports and the applicants’ oral evidence supported adoption, while the guardian considered that the children wanted security in the applicants’ home while retaining their relationship with their mother.
2. The lower court’s judgment was inadequate. It omitted any reference to the schedule 2 reports and the applicants’ evidence, made no findings about credibility or reliability, and failed to confront the fundamental conflict in the evidence. The deficiency concerned a factor of great importance and was not cured by the fact that the children’s wishes and feelings were only one factor in the statutory assessment.
3. The conclusion in relation to the older children was therefore set aside. Their applications were remitted for retrial before another judge, preferably the designated judge if available. The court noted that interim orders might need to remain in force during the interval.
4. T. The court’s first consideration was T’s welfare throughout childhood. The permanence, security and stability provided by adoption plainly promoted that welfare. The loss of the biological parental and family link was the principal contrary consideration, but the relevant adults agreed to that consequence and it did not outweigh the benefits. The adoption order was accordingly made. The court hoped that arrangements for post-adoption contact would be agreed and incorporated in the order.

1. Court of Appeal (Civil Division) — The appeal was allowed. The applications concerning the older children were remitted for retrial before another judge, and an adoption order was made in relation to T: [2006] EWCA Civ 1822.
2. Brighton County Court — HHJ Norrie refused the adoption applications and made joint residence orders in favour of Mr and Mrs C.