G (A Child)

A parent’s claim for a declaration of incompatibility does not automatically require adoption proceedings, or an application for leave to oppose adoption, to be transferred to the High Court or adjourned. The court must assess the claim’s merits, the likely effect on the duration of the substantive proceedings, and the consequences for the child’s welfare. Transfer or adjournment may be appropriate where the claim has a sufficient prospect of success and could affect the substantive decision. Where the claim is speculative, delay would harm the child, and the parent has no realistic prospect of opposing adoption, the substantive proceedings may properly continue under section 47(5) of the Adoption and Children Act 2002.

The father appealed after the Family Court sitting at Chelmsford dismissed his application for leave to oppose an adoption order under section 47(5) of the Adoption and Children Act 2002. He had issued a Part 8 claim under the Human Rights Act 1998, alleging that sections 24 and 47 of the 2002 Act were incompatible with the ECHR. He argued that the adoption proceedings and his application for leave had to be transferred to the High Court, or stayed pending determination of the declaration claim. Permission to appeal was granted only on those procedural grounds. The central issue was whether the pending declaration claim required transfer or adjournment before the adoption application could be determined.

The appeal was dismissed. Moylan LJ gave the judgment of the court, and Cobb J agreed.

1. The court distinguished between Convention-right arguments deployed within substantive family proceedings, claims under the Human Rights Act 1998 seeking remedies other than a declaration of incompatibility, and a claim for such a declaration. Under section 4(5), declarations can be made only by the courts specified there, including the High Court and not the Family Court. The court noted, but did not resolve, an apparent conflict with paragraph 3.1 of Family Procedure Rules 2010 PD29B.

2. The authorities concerning human rights claims in family proceedings were general guidance and were not specifically directed to declarations of incompatibility. They had to be adapted to the circumstances of the case. A judge considering transfer or adjournment should assess the likely impact on the duration of the substantive proceedings, the child’s welfare, and the merits of the declaration claim. The merits matter because there must be a sufficient prospect of success to create a real prospect that determination of the claim could affect the substantive proceedings.

3. There was no mandatory requirement to transfer the adoption proceedings to the High Court or to stay or adjourn them pending the declaration claim. The same evaluative exercise applied to the father’s section 47(5) application. The judge was entitled to consider the merits of the Part 8 claim and the welfare consequences of delay.

4. The judge had correctly concluded that the declaration claim was speculative, having regard to the observations in Re CB (A Child) (No. 2) (Adoption Proceedings: Vienna Convention) [2016] 1 FLR 1286. She was also entitled to conclude that delay would be positively damaging to the child and that the father had no prospect of successfully opposing adoption. In those circumstances, refusing transfer and adjournment was correct; it would have been wrong to order otherwise.

5. The court added that a declaration claim concerning the Children Act 1989 or the Adoption and Children Act 2002 would rarely be likely to require postponement of care or adoption proceedings. This was a general observation rather than a necessary ground of decision.

• Court of Appeal (Civil Division): The father’s appeal was dismissed. The court held that neither transfer nor adjournment was required pending his declaration claim: [2017] EWCA Civ 2638.
• Family Court sitting at Chelmsford: On 30 March 2017, Her Honour Judge Roberts refused to transfer or adjourn the adoption proceedings and dismissed the father’s application for leave to oppose adoption.