P (A Child)

In a step-parent adoption, the court must apply the statutory welfare and consent requirements in their particular factual context. Proportionality is central. The proposition that adoption is justified only where nothing else will do arose in the context of compulsory adoption outside the birth family. It does not impose a uniform threshold upon every adoption.

The court must evaluate the degree of interference with family life, including the substance of the non-consenting parent’s relationship with the child. Adoption may be required where it formalises a longstanding de facto family unit and only adoption can confer the full, lifelong status of parent.

A stepfather applied to adopt his partner’s two children. The children had lived with him and their mother as a settled family for seven years and strongly wished to be adopted. Their respective fathers had played no active parental role for many years. One father had parental responsibility, so his consent had to be given or dispensed with.

HHJ Gareth Jones dismissed both applications. He treated the word “requires” in section 52 of the Adoption and Children Act 2002 as establishing a uniformly high hurdle and concluded that other means of obtaining parental responsibility were sufficient.

The central issue on appeal was how the welfare, consent and proportionality requirements governing adoption apply in the distinct context of a step-parent adoption.

1. Appeal allowed and adoption orders made. The judge materially erred in his assessment of proportionality and in his application of the statutory requirements. The children’s welfare required adoption and, for the child whose father held parental responsibility, required the father’s consent to be dispensed with.

2. Proportionality is central both to evaluating lifelong welfare and to dispensing with parental consent. The welfare and consent provisions apply equally to public-law and step-parent adoptions, but their application depends upon the context and the degree of interference with family life. The “nothing else will do” formulation associated with Re B, [2013] UKSC 33, concerns compulsory adoption outside the family against parental wishes. A step-parent adoption that formalises an existing family unit ordinarily lies elsewhere on the spectrum of interference.

3. The approach in Söderbäck v Sweden, [1999] 1 FLR 250, should be applied according to the facts. Relevant considerations include whether the non-consenting parent has cared for the child or asserted parental responsibility, the frequency of contact, and the strength and duration of the de facto family ties between the child, parent and step-parent.

4. The word “requires” in section 52(1)(b) of the Adoption and Children Act 2002 retains its imperative connotation, but it creates no enhanced welfare test or hurdle of identical height in every case. The court must apply the statutory language, including the lifelong welfare checklist, carefully to the facts and assess what is proportionate in that context. It need not find that the child would suffer significant prejudice without adoption.

5. The making of an adoption order concerns legal status, rather than merely practical childcare arrangements. Alternative orders conferring parental responsibility do not reproduce adoption’s lifelong recognition of the step-parent as a full parent. Here, adoption aligned the legal relationships with the settled family reality, made the children full siblings in law and achieved their firm wishes. The loss of the inactive fathers’ legal relationships was modest and proportionate.

6. Briggs LJ agreed, emphasising that adoption alone embodied the stepfather’s lifelong commitment as a full parent rather than a status dependent upon his relationship with the mother. Moore-Bick LJ also agreed with McFarlane LJ’s reasons.

1. Court of Appeal (Civil Division): The appeal was allowed and adoption orders were made: [2014] EWCA Civ 1174.
2. Wrexham County Court: HHJ Gareth Jones dismissed the stepfather’s applications to adopt both children on 29 January 2014.