Family Law Newsletter #4907.07.21
Issue #49 of Spire Barristers' Family Law Newsletter: edited by Chloe Lee and Philippa Pudney; news and Case Reviews by Francesca Massarella. Francesca is due to begin pupillage at Spire Barristers in September 2021.
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L (A Child: Step-Parent Adoption)  EWCA Civ 801
In the Court of Appeal (Civil Division): Lady Justice King, Lord Justice Baker & Lord Justice Males
-An appeal against an adoption order made by the child’s natural father in circumstances where the adoption order was made in favour of the child’s mother’s partner.
The appeal concerned L, aged 11. He was born in 2009. The mother did not tell the father that she was pregnant as she was in a relationship somebody else, Mr B. When L was born, Mr B was registered as his father and given his surname. When L was 3, the father asked for a DNA test because he resembled the father physically, and it was confirmed that L was his son.
In August 2012, Social Services became involved due to concerns about L’s emotional wellbeing and an alleged abusive relationship between his parents. There were significant concerns regarding L having contact with his father as he still believed his father was Mr B which resulted in confusion for the child. A contact order was made in April 2013 in favour of the father, with attempts to slowly introduce the child to his father and support their relationship. That contact was fraught with difficulties. Mr B and the mother separated at around the same time. The mother subsequently saw more of the father, but this was an abusive relationship, resulting in a community order made against the father following criminal proceedings as a result of his behaviour towards the mother.
In March 2015, the father was granted parental responsibility for L and a Child Arrangements Order was made for L to live with his mother and spend time with his father. The mother and the stepfather (as he was referred to in the judgment) began a relationship in 2015 and had a child together in 2017. They are now engaged and have bought a house together. In summer 2016, the father wished to take L to Albania for 2 weeks. The mother said 1 week would be sufficient but the father did not accept the compromise and went alone. He did not contact L again for 9 weeks until he arrived at school one evening to collect him.
Following this, L told his mother, stepfather and teachers that he did not wish to see his father anymore and would not go on any further contact visits. At the time of these proceedings, L had not seen his father for 4 years and 6 months and the father had not made any attempt to enforce the contact order. It was L’s wish that his stepfather adopt him, which prompted the application made in December 2019.
The Children’s Guardian was of the opinion that adoption would be in L’s best interests because it was in line with L’s wishes and feelings, as he was concerned about his father coming back into his life. The father opposed the making of the adoption order because he wanted to continue to have “his rights”.
At  the Court set out the context of the application, which was made under s.47 Adoption and Children Act (ACA) 2002. This specifies that an adoption order cannot be made if the child has a parent or guardian unless the parent or guardian consents to the adoption order or the consent can be properly dispensed with. Consent can only be dispensed with when the parent or guardian lacks capacity to consent or the welfare of the child requires it. The child’s welfare is the Court’s paramount consideration and the Court must have regard to the “welfare checklist.” At , it was also noted that before making an adoption order the Court must consider whether arrangements for contact with the child should be made or should continue. Under s.51(2) ACA 2002, the partner of a parent can adopt a child. They do not need to be married.
The case of Re P (A Child)  EWCA Civ 1174 was referenced at . In that case, McFarlane J cited the case of Söderbäck v Sweden  1 FLR 250 and concluded that the approach in that case should be applied to all adoption applications made by stepparents. There were 2 key points from that judgment to be applied:
1. A distinction is drawn between adoption involving compulsory, permanent placement outside of the family and stepparent adoption; and
2. Factors which are likely to reduce the degree of interference with Article 8 rights of the child and the non-consenting parent (“Parent B”) are; where Parent B has not had care of the child, where parent B has had only infrequent or no contact with the child, and where there is a well-established family unit in the home of the parent and step-parent.
The importance of both of these cases was summarised at  as Lady Justice King stated that they ‘serve to emphasise that there is an important qualitative difference in the degree of interference with the Article 8 rights of a child and any non-consenting parent as between so called stranger adoptions on the one hand and step-parent adoptions on the other.’ The latter was considered easier to justify in the Court arena as it involves lesser interference.
The issue on appeal was whether the adoption order ought to be set aside because the previous Judge did not have her attention drawn to Re P (A Child) or Söderbäck. At  Lady Justice King concluded that ‘it is undoubtably the case that the task facing both the Judge and this Court would have been more straightforward had the Judge been referred to Re P.’
However, she also determined that this did not mean that the adoption order previously made should be set aside. Indeed, at , Lady Justice King held that ‘no fault can be found with the Judge’s application of the statutory requirements relevant to the application which included consideration of the adoption welfare checklist.’ The Judge had applied a more rigorous test of ‘nothing else will do’ before concluding that the adoption order was in L’s best interests. Therefore, there was no basis to interfere with the Judge’s welfare-based decision as the same conclusion would have been reached had the relevant case law been highlighted for the Judge at first instance.
The appeal was accordingly dismissed. It was also made clear that there should be no arrangements made for contact.
Full judgment is available at: https://www.bailii.org/ew/cases/EWCA/Civ/2021/801.html
M v D (Family Law Act 1996: Meaning of “Associated Person”)  EWHC 1351 (Fam)
In the High Court (Family Division): The Honourable Mr Justice MacDonald
-A case concerning the definition of “associated persons” in the Family Law Act 1996 within the context of a non-molestation order.
The appellant made a without notice application for a non-molestation order pursuant to s.42(2) Family Law Act 1996 (FLA) against the respondent, her sister’s stepson (her “step-nephew”), alleging that the respondent had been verbally abusive and threatening towards her. In particular, the appellant cited that the threats included rape, murder and acid attacks, made by means of telephone calls, social media posts and in person.
The initial application was dismissed on the basis that the parties were not “associated persons” within the definition given in s.62(d) FLA 1996. The ground of appeal in the appeal Court was that the learned Judge erred in law when he found that the appellant and the respondent were not associated persons. In this assertion, the appellant relied on two key submissions:
1. 63(1)(a) 1996 Act expressly includes other types of step-relatives and therefore the term ‘nephew’ should have been read as including ‘step-nephew’. Further, on behalf of the appellant, it was argued that the learned Judge failed to acknowledge that a nephew could be acquired by marriage; and
2. In any event, the term ‘relative’ in s.62(3)(d) should have been construed as including step-nephew or nephew-in-law in circumstances where a ‘purposive construction of the statute is required’, taking into consideration the context of the ‘ever-expanding complexities of modern family dynamics.’
At  the Court set out the relevant law to be applied, namely that s.42 FLA 1996 provides the Court with the jurisdiction to make a non-molestation order against an associated person, which is defined in s.62(3)(d) FLA 1996 as including any ‘relatives.’ S.63 gives an interpretation of ‘relative’ as meaning, ‘(a) the father, mother, stepfather, stepmother, son, daughter, stepson, stepdaughter, grandmother, grandfather, grandson or granddaughter of that person or of that person’s spouse, former spouse, civil partner or former civil partner, or (b) the brother, sister, uncle, aunt, niece, nephew or first cousin (whether of the full blood or of the half blood or by marriage or civil partnership) of that person or of that person’s spouse, former spouse, civil partner or former civil partner.’ At , the Court also referred to s.76(7) of the Serious Crime Act 2015, which adopts the definition of ‘relative’ used in s.63(1) FLA when defining the offence of controlling or coercive behaviour in an intimate or family relationship.
At , Mr Justice MacDonald cited the case of Grieves v Rawley (1852) 10 Hare 63 to illustrate that whilst historically the term nephew has been held to mean the son of a brother or sister, as time passed on the terms have taken different meanings. In that case, the terms ‘niece’ and ‘nephew’ were also held to encompass the children of a person’s half-brothers and sisters.
The case of Pepper v Hart  AC 593 was also referenced at , to demonstrate that the Court should now adopt a purposive approach when interpreting statute in order to give a fact the true purpose of legislation. Furthermore, at  the Law Commission Report (Law Com No. 207) on Family Law Domestic Violence and Occupation of the Family Home 1992, was cited, which concluded that a broader approach to providing protection from domestic abuse by means of a non-molestation order was merited.
At , Mr Justice MacDonald concluded that the appeal ought to be dismissed for the following reasons:
1. Whilst the appellant’s arguments were considered to be well-founded, at , it was held that ‘it is however plain on the face of the statute that step-nephews are not expressly provided for as a category in s.63(1) FLA… indeed whilst stepfather, stepmother, stepson, and stepdaughter are expressly provided for by the statute, the category of ‘step-nephew’ is omitted under the definition of ‘relative’. Mr Justice MacDonald found two difficulties with the appellant’s argument that the express provision for certain step-relatives allows the Court to read in the term ‘nephew’, specifically:
a. The fact that Parliament expressly provided for some step-relatives to come within the definition of relative for the purpose of identifying an associated person indicates that the omission from the statute of step-nephew was deliberate, not an oversight; and
b. There is a difficulty in using the list of persons in s.61(3)(a) as an aid to interpreting the list of persons in s.61(3)(b) because they deal with different degrees of familial relationship.
2. Furthermore, Mr Justice MacDonald was concerned that it was possible to continue almost ad infinitum to identify relatives of a given applicant for relief under the Family Law Act 1996. He concluded that a line needed to be drawn somewhere.
At , Mr Justice MacDonald concluded by stating that ‘whilst I accept the need to adopt a purposive interpretation to the Family Law Act 1996, for the reasons I have set out I am satisfied that the respondent is plainly incapable of being brought within the meaning of associated person under s.62(2) of the 1996 Act, even on a purposive interpretation.’
Accordingly, the appeal was dismissed.
Full judgment is available at: https://www.bailii.org/ew/cases/EWHC/Fam/2021/1351.html