M J (A Child) & Anor v Newport City Council (Local Authority)

In choosing between adoption and special guardianship, the court must select the order which, in all the circumstances, best meets the child’s welfare needs throughout life. There is no presumption that special guardianship is the preferred order for a placement within the wider family, nor a requirement to choose the least interventionist order if that would derogate from welfare paramountcy.

The no-order principle in the 1989 Act concerns whether an order is better than no order. Where an order is plainly necessary, proportionality may permit consideration of comparative intervention, but cannot displace welfare. Adoption may therefore be justified where special guardianship cannot provide the particular child with sufficient long-term security and stability.

The mother appealed against Recorder O’Leary’s order that her son, MJ, be adopted by his maternal half-aunt, SJ. MJ had been placed with SJ under a care order after the mother relapsed during rehabilitation from alcohol and drug dependency.

The mother accepted that she could not care for MJ and withdrew her applications to discharge the care order and for contact. The remaining issue was whether MJ should remain with SJ under a special guardianship order or be adopted by her. The recorder found that MJ was vulnerable, securely attached to SJ, and required the additional certainty and clarity provided by adoption. The appeal challenged the exercise of that discretion.

1. Appeal dismissed. The recorder was entitled to conclude that adoption by the maternal half-aunt, rather than special guardianship, best met MJ’s welfare needs. Applying the appellate principles in G v G, her discretionary assessment was not flawed and was not plainly wrong.

2. The recorder had misstated the legal approach in two respects, but neither error vitiated her decision. First, special guardianship is not a preferred option in a family placement which can be displaced only by cogent reasons. The correct approach is to decide which available order, in all the circumstances, best meets the child’s welfare needs. Secondly, the court is not required to select the least interventionist order where that would derogate from welfare paramountcy.

3. Section 1(5) of the 1989 Act requires an order under that Act only where it is better for the child than making no order. It did not require the recorder to prefer special guardianship over adoption when an order was plainly necessary. Comparative intervention may be relevant to proportionality, but cannot constrain the welfare decision.

4. The recorder was also correct that an application for a residence order required permission under section 10(7A) of the 1989 Act; her broader statement that a parent could make section 8 applications without leave was inaccurate.

5. On the particular facts, the child’s vulnerability, secure attachment to SJ, the mother’s earlier changes of position, and the need for lasting stability entitled the recorder to find that special guardianship would be insufficient. Once that welfare conclusion was open to her, dispensing with the mother’s agreement to adoption under section 52 of the 2002 Act followed.

• Court of Appeal (Civil Division): dismissed the mother’s appeal against the adoption order.
• Newport County Court: Recorder O’Leary made an order on 3 November 2006 for MJ’s adoption by his maternal half-aunt.