S (Child as Parent: Adoption: Consent)

A child under 16 may be competent to consent to accommodation, placement for adoption or adoption. Competence is decision-specific and child-specific. The Gillick test is assisted by relevant concepts from the Mental Capacity Act 2005, but the threshold must not be set artificially high.

The child must understand, retain and weigh sufficient salient information, and communicate the decision. Competence to decide is distinct from the later exercise of decision-making, when consent must be fully informed. Age-appropriate assistance must be provided. In relinquished-baby cases, whether the care-order threshold is met depends on the facts; responsible and planned relinquishment will not ordinarily establish it.

The local authority sought directions concerning the adoption of T, a three-month-old baby, whose birth mother S was under 16, had developmental delay and learning disabilities, and wished to consent to adoption. The applications concerned the father’s notification, S’s competence, the need for a placement order and the route to adoption if valid consent or a placement order could not be obtained.

T had been placed with foster-to-adopt carers under section 20 of the Children Act 1989. The central questions were the test for S’s competence, the information she needed to understand, whether the section 31(2) threshold was met, and how adoption could proceed if she lacked competence or declined consent.

1. Competence. The Gillick test applied. A child must have sufficient understanding and intelligence to understand fully what is proposed. Competence is decision-specific, child-specific and assessed on current evidence. The court may use relevant concepts from the Mental Capacity Act 2005, while recognising that the Act does not directly govern children under 16.
2. The child must understand the nature and implications of the decision and its implementation, understand the implications of not pursuing it, retain the information long enough to decide, weigh the information, reach a decision and communicate it. Litigation incompetence does not determine subject-matter incompetence.
3. Section 20 accommodation. Although section 20 of the Children Act 1989 refers to objection rather than consent, informed parental agreement should ordinarily be obtained. The relevant information is that the child will stay with someone selected by the local authority, that the parent may request the child’s return, and that the parent may see the child. S was competent to agree to T’s accommodation.
4. Adoption consent. The competence threshold concerns sufficient understanding of salient information, not every peripheral statutory or procedural detail. The salient matters include adoption’s permanence, the creation of new legal parenthood, loss of parental rights and ordinary contact, the involvement of others in decisions about the child, the likely inability to choose adopters, the stages of adoption and the limited opportunity to change one’s mind.
5. Competence to make the decision must be distinguished from the exercise of that decision. Before consent is exercised, the child must freely and fully understand the essential implications recorded in the prescribed consent material. The information should be explained in age-appropriate language, without requiring comprehension of its precise legal wording.
6. All practicable steps must be taken to assist the child. This may include simple language, visual aids and more than one short session. Such assistance promotes the child’s autonomous decision-making under article 8 of the European Convention on Human Rights.
7. Threshold and route to adoption. Whether section 31(2) of the Children Act 1989 is met in a relinquished-baby case is fact-sensitive. Planned and responsible relinquishment is materially different from abandonment or a dereliction of parental responsibility. The judge provisionally considered that the threshold was not met on these facts, but did not formally determine the issue.
8. If consent is invalid and section 21 grounds are not established, the court cannot consent on behalf of an incapacitated parent. The section 44 route under the Adoption and Children Act 2002, with consent addressed under section 47, might provide a route to adoption. Further argument was directed on the precise procedure. The competence assessment was to be completed urgently.

First-instance decision. The High Court gave guidance on competence, threshold and possible adoption routes, but adjourned the final procedural question pending a specific assessment of S’s competence.