Down Lisburn Health and Social Services Trust & Anor v. H & Anor (Northern Ireland)

The House of Lords considered whether a court may make an order freeing a child for adoption under article 18 of the Adoption (Northern Ireland) Order 1987 when prospective adopters have not yet been identified and the availability of post-adoption contact with the birth parents is uncertain. The court held that the welfare of the child, as required by article 9, is the paramount consideration and that the child's need for contact with her birth family is a relevant factor when deciding both (a) whether adoption is in the child’s best interests and (b) whether the parents are "withholding their agreement unreasonably" under article 16(2)(b). However, there is no absolute legal requirement to have definitive evidence about post-adoption contact before making a freeing order; the decision depends on the facts and whether the judge has reached a decision within the band of reasonable conclusions. Applying established authorities such as In re W [1971] AC 682 and In re D [1977] AC 602, the majority concluded that the trial judge’s decision fell within the permissible ambit of judgment and should not be overturned on appeal.

This appeal concerned a child, Nina, born in April 2002, who had been placed in foster care because of the mother’s alcoholism and family instability. The Trust sought a freeing order under article 18 of the Adoption (Northern Ireland) Order 1987 because the parents refused to consent to adoption. The trial judge (Gillen J) concluded that adoption was in the child’s best interests and that the parents were unreasonably withholding consent despite the fact that prospective adopters had not at that time been identified and the availability of post-adoption contact was uncertain. The Court of Appeal dismissed the parents' appeal by a majority and the parents appealed to the House of Lords.

Nature of the application: a statutory application by the adoption agency for a freeing order under article 18 of the 1987 Order, seeking to dispense with parental consent on the ground of unreasonable withholding under article 16(2)(b).

Issues framed:

• Whether the court must take into account the child's need for contact with birth parents when deciding whether adoption is in the child’s best interests and when deciding whether parents are unreasonably withholding consent.
• Whether, in law, a freeing order can properly be made absent prior identification of prospective adopters or firm evidence that post-adoption contact will be available.
• Whether the trial judge erred in law or was plainly wrong in concluding that the parents were unreasonably withholding consent.

Reasoning and outcome: The House held that the child’s need for contact with her birth family is a relevant and potentially significant factor under article 9 when considering both best interests and reasonableness of parental withholding. There is no inflexible legal rule requiring prospective adopters to have been identified or post-adoption contact to be guaranteed before a freeing order can be made; the weight to be given to the absence of such evidence depends on the circumstances. Appellate interference is only appropriate where the judge has misdirected himself or reached a conclusion plainly wrong or based on irrelevant factors. The majority concluded the trial judge’s decision was within the band of reasonable judicial conclusions and dismissed the appeal. A strong separate opinion (Baroness Hale) would have allowed the appeal on the basis that the judge had given weight to an irrelevant consideration and had not sufficiently required efforts to find adopters willing to accommodate post-adoption contact.

Appeal dismissed. The House held that (i) the child's need for contact with the birth family is a relevant factor under article 9 and must be taken into account when deciding both whether adoption is in the child's best interests and whether parents are unreasonably withholding consent under article 16(2)(b); (ii) there is no absolute legal prerequisite that prospective adopters be identified or that post-adoption contact be guaranteed before making a freeing order under article 18 — the decision depends on the facts and whether the judge's conclusion falls within the band of reasonable judgments; and (iii) on the facts the trial judge’s decision was within that band and not plainly wrong.

Appeal from the Court of Appeal in Northern Ireland ([2005] NICA 47) where the parents' appeal against the freeing order was dismissed by a majority. Leave to appeal to the House of Lords was granted; the House heard the appeal and dismissed it on 12 July 2006.