The recent matter of Re L (A Child: Step-Parent Adoption) [2021] EWCA Civ 801 concerned an appeal by a child’s natural father against an adoption order which had been made in favour of the child’s step-father (the mother’s partner, though not yet married).
Factual Background
The child, L, was born in 2009. The Mother did not inform the Father of her pregnancy, and it was only through DNA testing after the child was born that it was confirmed that he was the child’s biological father. He had not been named on the birth certificate.
In 2012 the Father applied for a CAO. It was apparent that L thought Mr B, the mother’s partner, was his father. In April 2013 a contact order was made for the Father. During the first set of proceedings, the Mother and Mr B separated. The Father became volatile and abusive towards the Mother and was made subject to a community order in October 2013.
In October 2014 the Father applied for a declaration of parentage which was granted in 2015. An order was also made for L to spend every other weekend with the Father and alternate Thursdays.
In 2015 the Mother began her relationship with the step-father.
In September 2016 contact ceased whilst the Father travelled to Albania and it was suggested there had been a 9 week gap in contact. The last contact L had with the Father was September 2016 after he refused to spend time with him.
Decision
The court noted in its judgment that the step-father has become L’s “psychological father” [22]. The CG who had been appointed in this case confirmed that L was the driving force behind the application to be adopt and that was the context for the step-father making his application in December 2019.
L spoke to the Judge on 8th December 2020 and stated:
“My birth dad is officially still my dad. If the adoption is granted, then [the stepfather] would officially be my dad'. He would have all the roles of my dad. The judge pointed out to L that it was a big step for the father no longer to be officially related. L responded by saying that he did not want anything to do with the father who he said was 'unpredictable, and I was upset at school and home when seeing him'” [22].
The Father opposed the order on the basis that L has a good mum and dad but he considered that there was no reason for taking his rights away, considering that to be wrong [24].
The court noted that s.47 Adoption and Children Act 2002 (ACA) applied, and that the court had power under s.52(1)(f) ACA to dispense with parental consent if the welfare of the child requires the consent to be dispensed with.
It was noted that whilst adoption has the effect of depriving the Father of PR, the step-father could have gained PR himself after marrying the Mother by applying for an order under s.4A Children Act 1989 (CA) [39].
The court referred to the case of Re P (A Child) [2014] EWCA Civ 1174; [2015] 1 FLR 1327, in which McFarlane J commented in relation to step-parent adoptions in this jurisdiction that:
“Where an adoption application is made by a step-parent, the approach of the ECtHR in Söderbäck v Sweden should be applied according to the facts of each case. In doing so the following central points from the judgment in Söderbäck are likely to be important:
- There is a distinction to be drawn between adoption in the context of compulsory, permanent placement outside the family against the wishes of parents (for example as in Johansen v Norway) and a step-parent adoption where, by definition, the child is remaining in the care of one or other of his parents;
- Factors which are likely to reduce the degree of interference with the Art 8 rights of the child and the non-consenting parent ['Parent B'], and thereby make it more likely that adoption is a proportionate measure are:
- Where Parent B has not had the care of the child or otherwise asserted his or her responsibility for the child;
- Where Parent B has had only infrequent or no contact with the child;
- Where there is a particularly well established family unit in the home of the parent and step-parent in which 'de facto' family ties have existed for a significant period.”
It was suggested that Briggs LJ’s comments (as he then was) in the case of Re P summed up the present situation through L’s eyes that “nothing short of adoption makes the adoptive father the child’s ‘Dad’ in the fullest sense” [47].
The court conducted a proportionality exercise in line with the Söderbäck case, and the judge concluded that an adoption order was “the only order that will give L the best chance of a happy and secure future as part of a loving family” [56].
The Court of Appeal found that there was no fault with the judge’s application of the statutory requirements and adoption welfare checklist, but that the judge’s failure to specifically refer to the approach in Re P did not undermine the order she had made [59-60].
King LJ did also note that the requirements of s.46(6) ACA, although not confirmed in the order that they had been considered, had indeed been taken into consideration by the trial judge within the judgment, and therefore the order could also not be set aside for that reason [62], and had the exercise not been carried out, the outcome would nevertheless have been the same [64].
