The Prospective Adopters v FB & Ors

In determining whether adoption is required, the court must treat the child’s lifelong welfare as paramount and conduct a holistic, rigorous comparison of every realistically available option. Adoption is an exceptional and draconian order. It may be made only where the stringent statutory test is satisfied and no less interventionist order will secure the child’s welfare. A previous placement order remains valid unless set aside; an alleged failure to hear relevant family members does not make it void. The court must consider post-adoption contact separately. Direct contact should not ordinarily be imposed against the wishes of prospective adopters where it would threaten the stability of the placement. In Wales, the Rights of Children and Young Persons Measure (Wales) 2011 does not incorporate the Convention on the Rights of the Child into Welsh family law.

The prospective adopters sought an adoption order for E, a two-year-old child placed with them since January 2014. E’s mother had been granted permission to oppose the application and sought his return, alternatively direct shared care or contact. His father opposed adoption, and E’s teenage half-sister was joined as a party seeking a continuing relationship with him.

The earlier care and placement orders made by HHJ Edwards on 27 September 2013 had not been appealed. The issues were whether circumstances had changed, whether E’s welfare required the mother’s consent to be dispensed with, whether alleged failures to obtain the siblings’ views affected the earlier placement order, and whether direct or indirect post-adoption contact should be ordered.

1. Adoption order made. E’s welfare throughout his life was paramount under section 1 of the Adoption and Children Act 2002. The court considered the statutory welfare checklist, the full range of available orders and whether adoption would be better for E than making no order.
2. Under section 52(1), consent could be dispensed with only if E’s welfare required it. “Required” imposed an imperative and stringent test. Adoption was a draconian, last-resort order, and the court had to prefer a less interventionist solution unless cogent reasons justified adoption.
3. The court applied the holistic and rigorous approach required by Re B-S (Children) [2013] EWCA Civ 965. Each realistic option had to be analysed in detail, including its advantages, disadvantages and risks, and then compared with the competing options. The present placement had lasted for more than half E’s life, and removal would cause devastating and long-term harm. The mother’s improvements were genuine but untested, repeated earlier patterns, and came too late for E’s timescales. The father remained a serious risk if E returned to the mother.
4. The earlier placement order was valid and remained in force. A failure of natural justice might make an order voidable or capable of being set aside, but did not make it a nullity automatically. Any deficiency concerning the siblings’ views had been cured by the mother’s permission to oppose, the full evidence at the adoption hearing and the joinder of the sibling.
5. The Rights of Children and Young Persons Measure (Wales) 2011 imposed duties on Welsh Ministers in the exercise of their functions. It did not incorporate the Convention on the Rights of the Child into Welsh family law, and the court was required to apply the Adoption and Children Act 2002.
6. Direct or shared-care contact was inconsistent with adoption in this case. Post-adoption contact had to serve E’s interests, and direct contact was exceptionally unusual. The mother’s failure to accept the placement created a real risk to its stability. Only indirect letterbox contact, in accordance with the existing care plan, was ordered or approved.