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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> C (A Child) v XYZ County Council & Anor  EWCA Civ 1206 (23 November 2007)
Cite as:  Fam 54,  3 WLR 445,  EWCA Civ 1206
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COURT OF APPEAL (CIVIL DIVISION)
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE LAWRENCE COLLINS
|Re. C (A child)
|- and -
Mr Martin Todd (instructed by XYZ Legal Services) for the
Miss Judith Rowe QC (instructed by the Messrs CD) for the Second Respondent
Hearing date : 7 November 2007
Crown Copyright ©
Lady Justice Arden :
"The local authority has no choice. They are under a duty to inform themselves of as much information about the background of the extended family as they are able to do."
(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),(b) the child's particular needs,(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,(e) any harm (within the meaning of the Children Act 1989 which the child has suffered or is at risk of suffering,(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—(i) the likelihood of any such relationship continuing and the value to the child of its doing so,(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(5) In placing the child for adoption, the adoption agency must give due consideration to the child's religious persuasion, racial origin and cultural and linguistic background.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the Children Act 1989); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes—
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances.
(8) For the purposes of this section—
(a) references to relationships are not confined to legal relationships,(b) references to a relative, in relation to a child, include the child's mother and father. "
"…[O]bviously it will be in the interests of this child to be placed within the family… the reality is -- as we all know nowadays -- that when children are adopted they come to a time in their lives when they do enquire about their parentage and it would be cruel in the extreme to prevent this child having as much knowledge as possible about her background in the event that she is adopted, even if that information comes without the consent of the mother but as a result of the authorities informing themselves of the relevant information.
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others."
Lord Justice Lawrence Collins:
"By guaranteeing the right to respect for family life, Art.8 presupposes the existence of a family, [citing Marckx v Belgium, ; Johnson v United Kingdom (1999) 27 EHRR 296, at ] although this condition would not appear to be fulfilled in the present case in the absence of cohabitation or any sufficiently close de facto ties between the applicants and their respective adoptive daughters either before or after the adoption orders were made. However, in the opinion of the Court, this does not mean that all intended family life falls entirely outside the ambit of Art.8. The Court has already considered in this context that this provision could also encompass the potential relationship that might develop, for example, between a natural father and a child born outside marriage [citing Nylund v Finland] or the relationship that arises from a marriage that is not a sham, even if a family life has not yet been fully established."
Lord Justice Thorpe
"Make an application to a High Court Judge to request guidance on whether extended family members should be approached.
Mother may change her mind in relation to caring for her daughter. It is unclear as to whether she wishes to take up any contact."
"Interim care order to enable the Local Authority to share parental responsibility.
Transfer to High Court to enable a High Court Judge to consider whether the Local Authority should contact extended family members against mother's consent."
"The Local Authority be at liberty to disclose after twenty-one days namely after 19th October 2007, the existence and identity of E M C (dob 9/7/07) along with any relevant information regarding her, to the extended maternal family and if identifiable the putative father and any extended paternal family, the mother's objections having been carefully considered but overruled in the interests of the subject child."
"26. Quite clearly this has made significant changes to the emphasis upon on how these matters are approached and there is now a duty to make those enquiries and it seems to me that the law is now quite straightforward. The Local Authority have no choice, they are under a duty to inform themselves of as much information about the background of the extended family as they are able to do. It may well be that somebody suitable is in a position to come forward and offer a home for this child and if so then obviously it will be in the interests of this child to be placed within the family. Of course before that were done the mother's wishes would be taken into account in relation to any placement, but the reality is the consideration needs to take place.
27. When one looks at the likely effect on the child throughout her life one has to concentrate on the child and not the mother's wishes and the reality is – as we all know nowadays – that when children are adopted they come to a time in their life when they do enquire about their parentage and it would be cruel in the extreme to prevent this child having as much knowledge as possible about her background in the event that she is adopted, even if that information comes without the consent of the mother but as a result of the authorities informing themselves of the appropriate information."
(a) To identify the father or to inform him of the birth of E.
(b) To introduce E to her grandparents or to assess them as potential carers for E.
(c) I would further direct the Local Authority to meet the maternal grandparents to discuss with them their letter of the 29th October 2007 and to explain to them the outcome of this appeal.