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Adoption or Special Guardianship? The Impact of Re S, Re AJ and Re M-J

David Bedingfield analyses the impact on adoption proceedings of the Court of Appeal's recent decisions in Re S, Re AJ and Re M-J.


David Bedingfield, 4 Paper Buildings

The historical background to adoption
The concept of adoption, or the irrevocable ending of a child's legal relationship with his birth parents and the beginning of a new legal relationship with the child's adopters, has a troubled history in every legal system that has sought to provide for it.(1) Civil law inherited the Roman concepts of adoptio and adrogatio, and succession rights for descendents became inextricably a part of the legal cultures of those countries. Certain relatives under the civil law are entitled to a legitima portio, or a share of a deceased person's property, a legal concept that does not square with the irrevocable termination of parental rights. It became a part of Roman law that adoption was only permitted in order to provide an heir to the childless. Adopters under Roman law were required to be past child-bearing age and the adoptee was required to be an adult.(2) Islamic law as well does not provide for a complete termination of parent/child ties. Instead, the concept of Kafalah has been developed to provide a legal basis in Islamic law for a substitute family to provide primary care for a child.(3)

The concept of adoption under the common law has a no less controversial and confused history. The modern practice of adoption can perhaps be said to have begun in Massachusetts, in the USA, which enacted an adoption act in 1851. The concept did not gain immediate popularity in other states, however, and in fact adoption was rarely used in Massachusetts for the next half-century. The first adoption act in England and Wales, enacted in 1926, came only after five previous attempts at passing an adoption act had failed. The Hopkinson Report of 1921 set out the dilemma faced by lawmakers: the common law did not provide an appropriate legal solution for children who lived with substitute families. Informal arrangements had become more and more prevalent as a rural society transformed itself into an urban, more diffuse culture and the industrial revolution inevitably transformed intergenerational relationships. The Adoption of Children Act 1926 provided that courts might make adoption orders without parental consent, though as Professor Stephen Cretney has pointed out, the power to dispense with consent was interpreted very narrowly.(4) The Act did not ensure the child's full integration into the adoptive family. Only in 1949 were adoptive children given inheritance rights.

Professor Cretney and others have shown that during the next half century after the Adoption of Children Act 1926 adoption changed from a private or amateur activity to a professional service offered by adoption agencies staffed by trained social workers. The protection of children became the paramount consideration, rather than simply providing a service for childless couples. The Adoption of Children Act 1949 provided that placement of children for adoption would thenceforth be supervised by local authorities.

The changing face of adoption
The last quarter of the 20th century saw a radical change in this country in the nature and character of adoption. Single mothers no longer faced an overwhelmingly negative social stigma; welfare benefits for one-parent families meant that it was economically viable (if just barely) for an unmarried mother to keep her child; and, finally, the legalisation of abortion meant that many if not most unwanted pregnancies were terminated. All of this meant that by the 1990's very few infants in England and Wales were available for placement for adoption.

But from 1949, and the beginning of an adoption system that is driven by social workers and an effort to protect children, an increasing number of older children were removed from the care of abusive parents and made available for adoption. The legal concept of adoption began to be seen as a blunt tool that often did not fit the needs of individual children. A middle ground was sought for children who needed substitute families but who also would benefit from continued contact with their birth families.

The Houghton Committee, appointed in 1972 to consider the increasingly confused law of adoption, recommended that an alternative legal institution ("custodianship") be created to provide legal security for those providing long-term family care for a child.(5) The Children Act 1975 introduced custodianship as a legal concept, but sadly the provision was only brought into force in 1988 and promptly fell into legal obscurity.

The advent of the Special Guardianship Order
Two studies by two different governments — one in 1992, the other in the White Paper of December 2000 — both recommended there be a middle ground created between the absolute termination of parental/child ties and the maintaining of parental rights. The 2000 White Paper introduced the concept of Special Guardianship. The authors of the White Paper anticipated that the order would "give the carer clear responsibility for all aspects of caring for the child or young person, and for making the decisions to do with their upbringing. The child or young person will no longer be looked after by the council." The new order would "provide a firm foundation on which to build a lifelong permanent relationship between the carer and the child or young person," while at the same time "preserving the legal link between the child or young person and their birth family." It was also anticipated that the new order would "be accompanied by proper access to a full range of support services, including, where appropriate, financial support."

The Adoption and Children Act 2002 brought into being the new concept of a Special Guardianship Order. The Act's provisions were brought into effect on 31 December 2005. Some 14 months later we now have from the Court of Appeal the first appellate consideration of special guardianship orders, as well as detailed commentary from the Court regarding whether the new provisions successfully transform the recommendations of the White Paper into a viable legal structure. According to the Court, the results are somewhat mixed.

The Court of Appeal judgments
The Court of Appeal on 6 February 2007 handed down three separate judgments, not connected save for presenting similar issues (primarily, the difference between an adoption order and a special guardianship order)(6). In the case of
Re S (A Child) [2007] EWCA Civ 54 (CA), Lord Justice Wall explained the Court's decision to hand down the judgments together. Wall LJ stated that each of the three appeals was heard by a different bench and on different dates. Only one member of the court (Wall LJ) sat on each constitution. Because this was the first time that the question of adoption vs. special guardianship has reached the Court of Appeal, all five members of the court involved in the three appeals took the view that the cases presented an excellent opportunity for the court to consider the underlying principles to be applied in considering SGO's, and to give guidance to courts of first instance on the proper approach in these cases.(7) All three judgments are therefore to be considered judgments by the Court of Appeal. Re S, in particular, requires close reading by all advocates.

Wall LJ sets out in Re S in detail the provisions of the White Paper and the resultant provisions of the Adoption and Children Act 2002. Wall LJ identified four specific issues present in the three cases before the Court:

1) whether SGO's should be confined to existing family relationships;
2) the need, under a Special Guardianship Order, for leave of court before a parents seeks to apply for a section 8 order;
3) the dispensing with parental consent to adoption;
4) whether it is ever appropriate for a court to impose a Special Guardianship Order on a party who states that this order is not in the child's or carer's best interest.

Wall LJ notes that the White Paper gives helpful illustrations of some circumstances in which SGO's would be useful:

1) The case of older children who do not wish to be legally separated from their birth families;
2) the situation where a child is being cared for on a permanent basis of members of the child's wider family;
3) the case of a child from a particular ethnic or religious community where cultural difficulties with adoption make adoption orders less likely to be honoured;
4) the situation where an unaccompanied asylum-seeking child needs a secure, permanent home, but maintains strong attachments to a family abroad.

Wall LJ notes that "the statutory provisions draw strong and clear distinctions between the status of children who are adopted, and those who are subject to lesser orders, including special guardianship."(8) Section 1 of the 2002 requires the court to address the question of the child's welfare throughout the child's life. In Wall LJ's view, the consequences of this are significant.

Section 14C(1) was inserted into the Children Act 1989 by virtue of the Adoption and Children Act 2002. The provision gives to special guardians exclusive parental authority, but the entitlement is subject to a number of limitations. The fundamental differences between the status and powers of adopters and special guardians, according to Wall LJ, must be borne in mind when the court is applying the welfare checklist under both section 1(3) of the 1989 Act and section 1 of the 2002 Act.

Wall LJ made three other crucial points here:

1) the carefully constructed regime for SGO's, including the requirement of notice, the role of the court, and the report from the local authority, demonstrates the care required before a court makes a special guardianship order;
2) nothing in the statutory provisions limits the making of SGO's to a given set of circumstances, and courts must decide each case on its particular facts (making the normal common law comparison of fact situations in appeals particularly useless);
3) the key question the court must answer will be whether an adoption order or special guardianship order better serves the welfare of the child whose future is at issue.

Wall LJ then set out requirements for courts considering these issues:

1) a court must give full reasons for making one order rather than the other;
2) trial judges must be given a broad discretion to exercise their judgment regarding which order is appropriate, and therefore appeals will be discouraged;
3) in most cases the issue will not be the placement of the child, but the nature of the order required; therefore there is little need to go through the exercise of considering the no order principle;
4) for the same reason (the child will have already been placed), the delay principle is not as important as in other cases where placement remains at issue.

Wall LJ notes that the SGO regime's primary distinction is that it is "less intrusive" than adoption. It involves a "less fundamental interference with existing legal relationships." This analysis of course also fits well with the exercise required of all courts after enactment of the Human Rights Act 1998. The court must consider, in cases where the Article 8 right to family life is at issue, whether the interference with family life is a proportionate response to the harm the child faces. Wall LJ notes that in choosing between adoption and special guardianship, Article 8, ". . . is unlikely to add anything to the considerations contained in the respective welfare checklists. . . However, in some cases, the fact that the welfare objective can be achieved with less disruption of existing family relationships can properly be regarded as helping tip the balance." (9)

Wall LJ discussed the "skewing or distorting" of family relationships inevitably caused by adoption in a situations where there are pre-existing family relationships. A birth parent after an adoption retains no legal rights. The birth parent cannot apply to a court for any order regarding the child under the Children Act 1989 without leave of court. Under a special guardianship order, however, leave is only required by a birth parent if that parent seeks to apply for a residence order or a discharge of the special guardianship order. An application for further contact, or an application for a specific issue order regarding the exercise of parental responsibility, does not require leave. Wall LJ notes that of course courts might utilise s 91(14) of the Children Act 1989 to impose a leave requirement, but this provision is rarely used and there is a low burden imposed on the applicant, who must only show "an arguable case with some chance of success." (10)

Wall LJ notes the seeming anomaly of a statutory regime that is supposed to provide security but allows a birth parent untrammelled access to the courts with applications that may interfere with the exercise of PR by the special guardian. As Wall LJ states, "the need to invoke section 91(14) to protect special guardians and children from the anxiety imposed by the prospect of future litigation is a possible weakness in the scheme."

Nevertheless, as Wall LJ states, ". . . it must be accepted that special guardianship does not always provide the same permanency of protection as adoption. In our judgment, this is a factor, which in a finely balanced case, could well tip the scales in favour of adoption." (11)

Wall LJ and the court were clear that the new provisions brought into effect do give the court power to make a special guardianship order of its own motion, where no party has actively sought to apply for the order. The court must first, however, order and then consider carefully a report by the local authority. The requirement for the report is mandatory; it is unlawful for the court to make a special guardianship order without first considering the report made by the local authority. The contents of the report must follow the guidance set out in the relevant statutory instrument. (12)

But the consequences of the imposition of the order on an unwilling party must be given close and careful considering by the trial judge. As Wall LJ put it, "The jurisdictional position is very clear: the court has the power to impose a special guardianship order on an unwilling party to the proceedings. Whether or not it should do so will depend upon the facts of the individual case, including the nature of the refuser's case and its inter-relationship with the welfare of the particular child."

The facts of the three cases before the court are perhaps not as important as the Court of Appeal's approach to the cases and Wall LJ's analysis of the new Act's provisions. As Wall LJ notes, most cases require the court to make two decisions: With whom should the child live? What order should govern the outcome?

S (A Child)
In S (A Child), what impressed the trial judge was the close relationship between the proposed carer of the child and the child's birth mother.(The two were unrelated.) The mother was not deemed able to care permanently for the child, who required "more than good enough parenting." The experts agreed that the foster carer (who sought adoption) could provide this care; the mother could not.

The question presented was whether adoption or special guardianship should now govern the placement. The trial judge (HHJ Kushner QC) first determined that on the facts of the case, the child's welfare did not require adoption. Therefore there was no need to go forward under the 1976 Act to determine whether the mother was withholding her consent unreasonably. The trial judge carefully considered the factual circumstances of the case, noting the close relationship between mother and foster carer, the special difficulties posed by this child and her requirements for "more than good enough parenting," and the need to provide some security to the foster carer while not completely terminating parental ties. HHJ Kushner opted for making a special guardianship order, coupled with a section 91(14) order restricting the mother's right to make an application for contact or for specific issue orders.

On appeal, the focus was whether it was right in principle to impose a special guardianship order on a carer whose application is for adoption. The argument was also made that SGO's should be limited to those situations identified in the White Paper — that is, "wider family" placements, or placements of older children, or placements within a religious or ethnic culture that frowns on adoption, or the placement of asylum-seeking children with strong ties to families abroad. HHJ Kushner rejected that submission, as did the Court of Appeal. There are no limitations placed on judges considering whether to make the special guardianship. Instead, as always, the best interests of the child will be the paramount consideration by the judge, who should of course consider carefully the welfare checklist under s.1(3) of the Children Act 1989.

The Court in particular noted that HHJ Kushner had been entitled, on the facts, to consider that the child's welfare was best served by the making of a special guardianship order. Therefore no analysis of the reasonableness of the mother withholding her consent for adoption would be required.

The Court did hold, however, that a trial judge must order the local authority to prepare a report before making a special guardianship order, and must consider that report before the order is made.

Re AJ (A Child)
In the case of
Re AJ (A Child) [2007] EWCA Civ 55, the trial judge made the child AJ subject to an adoption order in favour of his paternal aunt and uncle. The case was heard under the provisions of the Adoption Act 1976. The issue on appeal was whether the court should have made a special guardianship order rather than an adoption order.

The child at issue had been placed with his paternal aunt and uncle shortly after birth. AJ's parents were involved in numerous criminal offences, and the father had been violent to the child's mother. Those problems remained apparent to all at the time of final hearing. Placement with the aunt and uncle, in other words, was not really at issue. A final care order had been made in September, 2002, with the care plan including permanent placement with aunt and uncle. The plan was for long-term fostering, with regular contact to mother and father. The parents were not consistently attending contact, and in 2004 the local authority sought to change its care plan to adoption. The aunt and uncle issued an adoption for adoption in August, 2005 (before the effective date of the 2002 Act).

The trial judge focused in his judgment on the fact that the aunt and uncle knew that the parents had a right under the provisions of a special guardianship order to make applications to court for further contact, or for specific issue orders. When the parents' consent would be necessary, the aunt in particular feared there would be little cooperation. For this reasons, the aunt stated in evidence that she would prefer the child remain under a care order than be made subject to a special guardianship order. In the former case, at least the local authority could both finance any litigation and act as a buffer to keep the parents at bay.

For those reasons, in particular, the trial judge was convinced that an adoption order would be preferable. The Court of Appeal did not disturb the judge's findings or the resultant order.

M-J (A Child)
The case of M-J (A Child) [2007] EWCA Civ 56 involved a child born in June, 2003. The child's mother accepted she could not care for the child. The child was placed with the mother's half-sister. In November, 2006, an order for adoption was made in favour of the aunt by the Newport (Gwent) County Court. The child's mother sought appeal, arguing that a special guardianship order should have been made.

In this case, just as in AJ, the placement of the child was not really at issue. The mother had a long history of abusing narcotics. She accepted she could not care for her child. The local authority had sought rehabilitation of the child with the mother, but in 2005 the mother again began using narcotics and the plan was abandoned. Shortly thereafter, the mother's half sister, supported by the local authority, sought an order for adoption.

This application was made under the 2002 Act. The recorder who heard the matter regarded it important that the aunt had long offered the child a permanent home, and had insisted throughout that the placement be governed by adoption rather than a less intrusive order. The relationship of the mother with the child's aunt had become fraught, in part because of the mother's relapse, in part because the mother changed her mind regarding whether an adoption order should be made. The recorder found that in fact the mother really never accepted that adoption was in the child's best interest. The recorder noted that the mother was "a highly intelligent and highly impulsive woman who displayed little insight in her evidence until the very end of the consequences of removal of M-J from [the aunt's'] care. . . It was clear in her evidence that this mother sees herself very much as a victim, and much of her evidence focused on her own feelings of rejection and isolation from her family."

The mother argued that the court should make a special guardianship orders, and should make a s 91(14) order to give to the aunt the security that she desired. The recorder refused to do that, and instead made an adoption order. The recorder reasoned as follows: ". . . the fact remains that those orders do not give total security or extinguish permanently the parental responsibility of the mother." The recorder was concerned that in fact the mother really harboured a desire to reclaim the child at some point in the future. This in the recorder's view tipped the balance in favour of adoption.

The Court of Appeal dismissed the mother's appeal. Wall LJ, for the court, noted that the recorder had considered carefully the mother's submissions regarding the "skewing of family relationships" that would be caused by the making of the adoption order, and had reached the conclusion that the need for security and permanence outweighed those considerations. On the facts, and given the wide measure of discretion that must be given a trial judge, the court of appeal could not say the trial judge was wrong.

Matters arising from the cases
Several matters are made clear by the three cases:

1) Appeal in a finely balanced case where the trial judge has considered carefully the arguments for and against a special guardianship order, and considered carefully the welfare of the child, will almost inevitably fail;
2) There are no legal presumptions regarding when it is appropriate to make a special guardianship order; instead, the welfare checklist must be analysed and the court should make the order that is in the best interests of the child;
3) The local authority report is a crucial and central part of the statutory scheme, and a report is required in every case where a court is considering whether to make a special guardianship order;
4) The relationship between the carer and the birth parent will often play a determinative role in the court's considerations, in particular with regard to whether the further security afforded the carer by adoption is necessary.
5) A court making a special guardianship order should at least consider whether it is also necessary to make an order under s 91(14) of the Children Act 1989.

With regard to the section 91(14) order, it is of course NOT a legal presumption that the court must make the limiting order. But it will likely be argued that where legal security can be given to the carer by the making of a section 91(14) order, the trial judge must at least set out the reasons why the judge rejected these submissions and instead made an adoption order.

The Court of Appeal also specifically refused to give guidance in these three cases regarding the consideration by trial judges of the birth parents' refusal to give consent to adoption under the 2002 Act. Further consideration of this issue must await a case where the issue was crucial to the outcome.

(1) See, generally, Barbara Tizard, Adoption: A Second Chance (Open Books 1977).
(2) Women could not be adrogated populi auctoritate, because they could not take part in the proceedings of the comitia. Adrogation was intended to keep a Roman family alive by providing for its continuance in the male line of descent. See R.W. Lee, The Elements of Roman Law (4th Ed) (Sweet & Maxwell 1956), p. 71. See Tizard, pp 3-8. Until recently, most European countries required adoptive parents to be childless and more than 50 years of age.
(3) See Pearl and Menski, Muslim Family Law (3rd Ed 1998), p 410. See Cretney, Masson and Bailey-Harris, Principles of Family Law (7th Ed 2002), p 792.
(4) See Cretney, Family Law in the 20th Century (2003).
(5) See Cretney, op cit, pp 705-706
(6) See Re S (A Child) [2007] EWCA Civ 54; Re AJ (A Child) [2007] EWCA Civ 55; Re: MJ (A Child) [2007] EWCA Civ 56.
(7) See Re S(A Child) [2007] EWCA Civ 54, at 55, Wall LJ.
(8) See Wall LJ's judgement, para 44.
(9) See Wall LJ's judgment, para 49.
(10) See re P [2000] Fam 15, at 38, Butler Sloss LJ
(11) See Wall LJ's judgment at para 68.
(12) See Special Guardianship Regulations 2005, SI 2005 No. 1109, in particular Regulation 21, which sets out the matters to be dealt with in all reports for the court.

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