T (A Child: Refusal of Adoption Order), Re

An adoption order may be necessary and proportionate where special guardianship does not provide the child with the greatest possible security. The court must assess both options side by side, considering welfare throughout life, legal and psychological security, permanence, present and future risks, the consequences of ending parental legal rights, and the child’s actual family and cultural relationships. Practical continuity of care is not decisive. Generational or family-tree distortion is fact-specific and must not be overplayed. In grave circumstances, adoption may properly secure the child’s placement, remove parental interference, and provide a legal father.

The appellants, the child’s maternal grandmother and step-grandfather, had cared for C since he was two days old under a special guardianship order. C’s mother opposed adoption. She had serious mental-health difficulties, a history of substance misuse, criminal convictions and repeated aggressive or threatening conduct towards the family.

The Family Court at Barnet dismissed the application for an adoption order on 13 February 2020, holding that special guardianship was sufficient and that adoption was neither necessary nor proportionate. The appeal concerned whether the welfare evaluation had omitted material considerations, including security, risk, cultural and family relationships, and the benefit of providing C with a legal father. The Court of Appeal also considered whether to remit the case or make the order itself.

1. Appeal allowed. The Court of Appeal made an adoption order in favour of the grandparents and dispensed with the mother’s consent under Adoption and Children Act 2002, s.51.
2. Fresh evidence was admitted under CPR r.52.21(2). The third limb of the Ladd v Marshall test was satisfied because the evidence was apparently credible, although it did not need to be incontrovertible.
3. An appellate court may ordinarily infer that an experienced family judge has considered routine welfare matters without expressly listing them. Where important and relevant factors are absent from the welfare-analysis sections, however, the court should not infer that they were weighed. The judge must identify all relevant matters, weigh them appropriately and explain the welfare evaluation comprehensively.
4. Adoption and special guardianship must be considered side by side in assessing the child’s welfare throughout life and whether adoption is necessary, proportionate and required because nothing else will do. The assessment must address emotional and psychological security, permanence beyond majority, the past and future impact of parental conduct, the benefits of removing parental legal rights, and the legal consequences of each order. The approach in Re AJ (Adoption Order Or Special Guardianship Order) [2007] EWCA Civ 55, [2007] 1 FLR 507 and Re S (Adoption Order or Special Guardianship Order) [2007] 1 FLR 819 was considered in that context.
5. The judge had overemphasised the alleged skewing of family relationships. That issue was fact-specific and had to be balanced against the family’s cultural norms, C’s lived relationships, the grandparents’ parental role and the fact that adoption would provide him with a legal father. The omissions fundamentally flawed and vitiated the welfare evaluation.
6. The mother’s enduring mental-health problems and aggressive behaviour created a continuing risk to C, the grandparents and the wider family. Adoption would not itself prevent abusive conduct, but it would provide the greatest available legal and psychological security, remove the mother’s legal ability to interfere in C’s life, and secure the placement permanently. The mother’s and C’s Article 8 rights were engaged; applying Yousef v The Netherlands [2003] 1 FLR 210, C’s welfare rights prevailed where they were in tension with the mother’s rights.

• Court of Appeal (Civil Division) allowed the appeal, dispensed with the mother’s consent and made an adoption order: [2020] EWCA Civ 797.
• Family Court at Barnet, HHJ McKinnell, dismissed the grandparents’ application for an adoption order on 13 February 2020.