Down Lisburn Health and Social Services Trust and another (AP) (Respondents) v. H (AP) and another (AP) (Appellants) (Northern Ireland)

In proceedings to free a child for adoption, the possible availability of post-adoption contact is relevant but is not a legal precondition to dispensing with parental agreement. Its importance depends on the child and the evidence.

A parent withholds agreement unreasonably where an objective, hypothetical reasonable parent, placed in that parent’s actual circumstances and giving great weight to the child’s welfare, would agree to adoption. The court must allow for a band of reasonable parental decisions.

An appellate court may interfere with the trial judge’s evaluative decision only where it is plainly wrong, proceeds upon an error of principle or takes account of an incorrect factor.

The Trust sought an order under article 18 of the Adoption (Northern Ireland) Order 1987 freeing a four-year-old child for adoption without her parents’ agreement. The child required a permanent placement because of the serious risk that her mother would relapse into alcohol abuse. She nevertheless had a significant attachment to her birth parents, and expert evidence favoured some continuing contact.

Gillen J held that adoption was in the child’s best interests and that the parents were withholding agreement unreasonably. He made the freeing order although adopters had not then been identified and post-adoption contact remained uncertain. The Court of Appeal, by a majority, dismissed the parents’ appeal: [2005] NICA 47.

The House considered whether the judge could properly dispense with agreement before it was known whether post-adoption contact would be available, and whether he had substituted his own view for the range of decisions open to a hypothetical reasonable parent.

1. Appeal dismissed by a majority of four to one. Lord Carswell delivered the leading speech. Lord Nicholls, Lord Rodger and Lord Walker agreed with his reasoning. Baroness Hale dissented.

2. Per Lord Carswell, the availability of post-adoption contact was a relevant factor when deciding whether to dispense with parental agreement and make a freeing order. The need for evidence about contact varied from case to case. Such evidence was not, however, a legal condition precedent or indispensable requirement. Treating it as such would wrongly elevate an evidential consideration into a rule of law.

3. The judge had to consider contact and all other relevant circumstances. If he had sufficient evidence, made no material error or misdirection, and reached a decision within the permissible evaluative bounds, the decision could be displaced only if plainly wrong. The evidence permitted the conclusion that the pressing need for a secure adoptive placement outweighed the uncertainty about future contact.

4. Under article 16(2) of the Adoption (Northern Ireland) Order 1987, reasonableness is assessed objectively. The court places the hypothetical reasonable parent in the actual parent’s circumstances, while attributing a capacity for reasonable judgment. Such a parent gives great weight to the child’s welfare but may also consider legitimate parental and family interests. More than one decision may fall within the band of reasonable parental responses.

5. Applying G v G [1985] 1 WLR 647, an appellate court may not reverse an evaluative family decision merely because it would have reached another result. The trial judge’s decision must be plainly wrong, disclose an error in the method of evaluation or depend upon an incorrect factor. Gillen J had correctly directed himself and remained within the bounds of reasonable judgment.

6. The interference with family life was proportionate to the legitimate aim of protecting the child’s welfare and therefore complied with article 8 of the Convention. A court may find an interference proportionate even where the public authority did not expressly recognise that article 8 was engaged.

7. Lord Carswell cautioned that post-adoption contact must be assessed in the child’s particular circumstances. The birth parents’ attitude was critical, and contact required monitoring, counselling and support so that it promoted rather than undermined the stability of the adoption.

8. Baroness Hale would have allowed the appeal. In her view, the judge had relied on an irrelevant possibility of parental misbehaviour and had failed adequately to consider the unresolved contact arrangements. A reasonable parent could have withheld agreement until genuine efforts had been made to find adopters willing to accommodate beneficial contact.

1. House of Lords: By a majority of four to one, dismissed the parents’ appeal and affirmed the freeing order: [2006] UKHL 36.

2. Court of Appeal in Northern Ireland: By a majority, dismissed the parents’ appeal from Gillen J. Sheil LJ dissented: [2005] NICA 47.

3. High Court: Gillen J dispensed with the parents’ agreement and made an order freeing the child for adoption. No neutral citation is stated in the judgment.