Family Law

Family Law Newsletter #5408.12.21

Guidance / Updates

Second reading of the bill to ban child marriage in England and Wales has been passed

Statistics released for children looked after in England including adoption: 2020 to 2021

Order No.10.1 (non-molestation order) amended to include the respondent’s date of birth

Case Summaries

YP (Adoption of 18-Year-Old) [2021] 3168 (Fam)

In the High Court of Justice (Family Justice): Mrs Justice Arbuthnot

This case concerns an adoption application which was issued a day before the child’s 18th birthday, by a partner or close friend of the child’s birth mother.

The factual background of the case is as follows. The applicant (A) applied for an adoption in respect of the second respond, YP, who is now aged 18. The application, essentially a stepparent adoption order, was issued the day before his 18th birthday. A is the partner or close friend of YP’s birth mother (R). The birth father (X) does not have parental responsibility for YP, is not an automatic party to these proceedings and therefore, his consent to the Adoption Order is not required.

The local authority provided two reports in respect of the adoption order application, with differing outcomes. The first raised concerns about YP’s loss of his relationship with the paternal family which may be occasioned by an adoption order. Following the departure of the report writer from the employment of the local authority, a second report was provided. This report recommended an adoption order.

YP was joined to proceedings and instructed a legal team directly, a Cafcass reporting officer provided a report following an interview with A, R and YP. No welfare concerns preventing an adoption order were raised.

The issues in this case are four-fold, each addressed by the judge in turn:

(1) Whether the pre-conditions for the making of an adoption order are satisfied;

(2) Whether A is the partner of R within the definition of the Adoption and Children Act 2002 (ACA 2002);

(3) Whether YP has had his ‘home’ with A ‘at all times’ during the 6 months preceding the application. If not, the criterium in section 42(3) ACA 2002 is not met and an adoption order cannot be made;

(4) If the pre-conditions are met, the Court must consider whether it is in YP’s best interests to make an adoption order.

Before addressing the issues, the judge considered the evidence at hand [17]-[54]. YP stated that the order was very important to him, reflecting the reality of his life on the ground [37]. YP was described as a ‘mature and well-mannered young man’, able to articulate his views and feelings, with no concerns about his behaviour, nor emotional well-being [40]. YP expressed his feelings that the order would not affect what was a ‘limited relationship’ with X [46]. He then stated that his relationship with his paternal family was ‘good’ and R said this would be unaffected by the order; however, R did not want the paternal family to be contacted about the adoption [47].

Concerns were raised in the first local authority report as to whether the adoption order would afford any benefit to YP beyond being in line with his wishes and feelings [48-49]. A concern was also raised that A had two adult children of his own which YP did not know about. Such concerns were mitigated in the subsequent report. The report-maker, Ms K, still noted the importance of a striking a balance between YP’s rights to inheritance and the loss of a relationship with X and the paternal family, but considered the balance weighed in favour of an adoption order [54].

Contact with X proved a challenge; however, X recognised that YP was an adult and he saw the adoption order as being about inheritance [56]. X was given an opportunity to take part in these proceedings but did not do so [58].

The judge then briefly summarised submissions [59]-[68]. Notably, there was a submission that ‘home’ was to be given a ‘wide and purposive interpretation’ [60] following the recent case of Re A (A child: Surrogacy: s54 criteria) [2020] EWHC 1426 (Fam) at [58].

The four issues were then addressed in turn.

The Judge addressed the first and second issues together, namely whether the pre-conditions for making of an adoption order are satisfied and whether A is the partner of R within the definition of ACA 2002. In doing so, the Judge outlined the preliminaries to adoption found in sections 42-45 ACA 2002, and the rules for making adoption orders at 46-51[69]-[76]. The Judge acknowledged that due to A and R not being married, it was necessary to consider the definition of ‘the partner of a parent of the person to be adopted’ in section 51(2) ACA 2002 [77]. The Court concluded that the weight of evidence demonstrated that A and R are in an ‘enduring relationship’ and they consider themselves to be a family unit [83].

Moving to the third and most contentious issue: whether YP has had his ‘home’ with A ‘at all times’ during the 6 months preceding the application. The Judge noted that A must satisfy the condition under section 42(3) ACA 2002 [85]. She then considered that A, R and YP are one family unit despite being based in different countries. A and R are jointly bringing YP up, with both being involved in giving guidance and advice, and making decisions about him [100]. In addressing the issue of what constitutes a ‘home’, the Judge stated that this will never be seen merely in a physical or geographical context but where there is an emotional connection which is just as important [103].

The Court noted that the close and loving relationship between A and YP finds its expression in the home in London where the family comes together as one unit in one place. YP considers the flat in London as his main home [103]. YP also considers A to be his father [105]. The Judge concluded this issue, giving ‘home’ a wide and flexible definition and finding that YP had his home with A at all times during the 6 months preceding the application [112]-[113].

The Judge stated that the application for an adoption order met the criteria set out in ACA 2002 [114]. This links to the final issue that, if the pre-conditions are met, which they are, the Court must consider whether it is in YP’s best interests to make an adoption order [115]. In doing so, the Judge sought the assistance of both allocated social workers and a Cafcass reporting officer, who have considered what is in YP’s best interest throughout his life [116]. The social workers had opposing views. The first, opposing the application, raised issues about the risk to YP of losing his relationship with X and the paternal family. The second social worker recommended that the adoption order was made. The Cafcass reporting officer agreed with the latter [118]-[120].

The Judge stated that she gave particular weight to YP’s wishes and feelings [121]. She acknowledged that YP wanted the father-son relationship that he has had with A for almost all of his life to be legally recognised, and understood the consequences of doing so [121]. The Judge was tasked with considering the complex dynamic of YP’s relationship with X, his paternal family and the external concerns of A’s adult children [121]-[125].

The Court balanced YP’s strongly held wishes against X’s occasional and superficial relationship with his son. She noted that the interference with X’s right to a family life with YP is proportionate and in YP’s best interests [126].

The Court made an adoption order, ensuring that the de facto strong and enduring relationship between A and YP is recognised legally [127].

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2021/3168.html

F and M [2021] EWHC 3133

In the High Court of Justice (Family Division): The Honourable Mr Justice Hayden

The case concerned protection against self-incrimination and whether this extended to private law proceedings.

The fact-finding hearing, heard in January 2021, concerned allegations made by the Mother (M) of abuse by the Father (F), in two separate relationships, which the judge has found to be coercive and controlling. F’s behaviour was strikingly similar in both relationships [1]. The findings were briefly summarised and included that F controlled M throughout their relationship, F had raped M probably more than once and F’s behaviour is sadistic [3].

In this hearing, orders were sought by both F and M. On the one hand, F sought a Child Arrangements Order to spend time with the children and a Specific Issue Order to change the name of the younger child. On the other hand, M sought a Specific Issue Order divesting F of parental responsibility, permission for disclosure of documents filed within the proceedings to the police and to the Home Office and disclosure of documents from F’s immigration solicitor, identifying his failed application to remain in the United Kingdom [2]. In this case, F is the applicant and M is the respondent.

The core issue of this case is that it is argued by F that the Court should make a prospective determination that nothing should be disclosed to the police in respect of any written statements made by F in which he makes any admission in respect of the findings, including any admissions made in oral evidence [13]. A number of submissions were offered in support of F’s application, but the central argument was that F should be afforded similar protection against self-incrimination as a parent in public law proceedings, pursuant to section 98 of the Children Act 1989.

The Judge went onto to consider section 98, which does not apply to private law children proceedings (Part II) but is solely confined to public law proceedings (Part IV and Part V). The Judge noted that in every sphere of decision taking, be that public or private, where the welfare and safety of the children is concerned, honesty, frankness and candour with the Court and professionals is essential [24].

The Judge moved to consider the judgment of Hedley J in D v M [2003] 1 FLR 647, whereby he stated that the weight afforded to frankness in private law proceedings might lead it to being afforded greater significance when a Court was considering disclosing material to the police [25].

Applying this, the Judge stated that the absence of protection afforded by Section 98 (2) CA 1989 in private law proceedings might lead to a Judge placing greater emphasis upon frankness when determining a disclosure application, but it does not follow inevitably [26]. However, it could not be ignored that Parliament granted the protection of Section 98 to public law care proceedings but not to private law cases. The Judge noted that there are sound reasons for this distinction [33], stating that it exists not for the protection of the parent but to promote the best interests of the child which remains the paramount consideration throughout [37].

The Judge concluded his judgment by stating that Parliament has confined the ambit of Section 98 CA 1989 deliberately. There is no ambit for judges to extend a provision beyond that which Parliament has intended. He considered that the relief sought is over ambitious and requires a reconstruction of the legislation which is inconsistent with the framework of the Children Act 1989 nor consistent with its central philosophy [38].

The Judge declined to make the orders sought on behalf of the Applicant F for the reasons outlined above [38].

Full judgment available at: https://www.bailii.org/ew/cases/EWHC/Fam/2021/3133.html

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