L (A Child: Step-Parent Adoption)

In a step-parent adoption, proportionality must reflect the materially lower interference with family life than in a stranger adoption. The nothing else will do formulation does not apply as an independent last-resort test. The court must instead assess welfare and proportionality in context, including the non-consenting parent’s care and contact, and the stability of the child’s de facto family with the step-parent.

Before making an adoption order, section 46(6) of the Adoption and Children Act 2002 requires the court to consider contact arrangements. That consideration should be clearly recorded. An order need not be set aside where the judgment nevertheless demonstrates that the mandatory issue was substantively considered.

The natural father appealed against an adoption order made by the Family Court at Chelmsford on 21 December 2020. The order enabled L, aged 11, to be adopted by his mother’s long-term partner. The mother, step-father, social worker, Children’s Guardian and L supported adoption; the father, who had parental responsibility, opposed it.

The father had not seen L since September 2016. The judge found that contact had been distressing and that L regarded the step-father as his psychological father. On appeal, the father contended that the judge had not been referred to Re P, Söderbäck v Sweden, or section 46(6) of the Adoption and Children Act 2002. The central questions were whether those omissions invalidated the adoption order and whether contact had been sufficiently considered.

1. Appeal dismissed. The judge correctly applied the statutory welfare requirements and the adoption welfare checklist. Her conclusion that adoption served L’s welfare and was proportionate was supported by the social worker, the Children’s Guardian and L’s clearly expressed wishes.

2. The judge had applied the more stringent nothing else will do approach associated with Re B. That was not the correct test for a step-parent adoption. Under Re P and Söderbäck v Sweden, the interference with Article 8 rights is qualitatively less severe where the child remains with a parent and an established de facto family. The necessary inquiry is proportionality in the particular context, not whether adoption is a last resort.

3. The relevant considerations included that the father had never cared for L, had had no contact since 2016 and had not sought to resume it, and that the step-father was L’s psychological father within a stable family unit. Since the judge’s conclusion satisfied the stricter test she had applied, the failure to refer expressly to the lower threshold in [2014] EWCA Civ 1174 did not undermine the order.

4. Section 46(6) of the Adoption and Children Act 2002 imposed a mandatory duty to consider contact arrangements and the parties’ views before making the order. The court held that the judge had, just sufficiently, addressed all the relevant matters, although not under a separate heading. The proper practice is to deal expressly with contact in the judgment or a recital. On the findings, no contact arrangement would have been appropriate in any event.

• Court of Appeal (Civil Division): dismissed the father’s appeal and upheld the adoption order: [2021] EWCA Civ 801.
• Family Court sitting at Chelmsford: HHJ Dawson made an adoption order on 21 December 2020 permitting L’s adoption by his mother’s partner.