AJ (Child)

Special guardianship has not displaced adoption as the appropriate order for permanent wider-family placements. The choice must be determined by the welfare of the particular child on the particular facts, through careful judicial discretion.

Adoption may be necessary where only it can provide the child and carers with sufficient security against disruption. Permission requirements for later applications do not necessarily remove that threat, especially where birth parents have regular contact. Under the Adoption Act 1976, consent is unreasonably withheld where a hypothetical reasonable parent would treat the child’s welfare and need for permanent, secure placement as decisive. Adoption need not distort family relationships where the child understands his identity and retains appropriate contact with his birth parents.

The parents of AJ appealed from an order made by His Honour Judge Wyn Richards in Swansea County Court on 9 August 2006. The judge dispensed with their consent to AJ’s adoption by his paternal aunt and uncle under the Adoption Act 1976, and directed that AJ remain in his existing placement pending the adoption application.

The appeal concerned whether a special guardianship order under the Children Act 1989, as introduced by the Adoption and Children Act 2002, was a preferable or sufficient alternative; whether adoption was proportionate under Article 8; whether future applications could be controlled; and whether the parents’ refusal of consent was unreasonable.

1. Appeal dismissed. The court treated the case as an appeal against the exercise of a welfare discretion. The principles in G v G (Minors Custody Appeal) [1985] FLR 894 and Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230 applied. The appellate court should not interfere merely because it might have preferred another conclusion. Intervention requires a decision outside the generous ambit of reasonable disagreement and plainly wrong.
2. Special guardianship orders have not replaced adoption in permanent wider-family placements. The court adopted the general approach stated in Re S [2007] EWCA Civ 54: each case depends on the welfare of the particular child, the particular facts and the careful exercise of judicial discretion.
3. On the facts, AJ and his carers needed assurance that the placement could not be disturbed. A special guardianship order could not provide that assurance. The realistic possibility of applications by the parents, and the disruptive effect of those applications, remained material even though permission might be required for some applications. Section 91(14) of the Children Act 1989 could regulate proceedings but could not remove the threat of disruption where the parents had regular contact.
4. The judge was entitled to find that adoption would safeguard and promote AJ’s welfare throughout childhood under section 6 of the Adoption Act 1976. Applying the approach in Re W (an infant) [1972] AC 682, and as interpreted in Re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260, a reasonable parent in the parents’ position would recognise that AJ required a permanent and secure placement and would agree to adoption. Their refusal was therefore unreasonable under section 16(2)(b).
5. The risk of distortion of family relationships was fact-specific and should not be overstated. AJ knew who his birth parents were and why he lived with his aunt and uncle. Adoption was compatible with continuing direct contact and did not create a material distortion merely because cousins would grow up as brothers.
6. The question whether a special guardianship order could be imposed against the wishes of prospective special guardians did not arise. The trial judge’s observations on that issue were obiter. The appeal was accordingly dismissed.

• Court of Appeal (Civil Division): Permission to appeal was granted and the appeal was dismissed. [2007] EWCA Civ 55
• Swansea County Court: His Honour Judge Wyn Richards dispensed with the parents’ consent to adoption and directed that AJ remain in his existing placement pending the adoption application.