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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Re B v C (Surrogacy: Adoption) [2015] EWFC 17 (13 February 2015) URL: https://www.bailii.org/ew/cases/EWFC/HCJ/2015/17.html Cite as: [2015] EWFC 17 |
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Sitting at the Royal Courts of Justice
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
B |
Applicant |
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- and - |
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C |
1st Respondent |
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- and - |
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D |
2nd Respondent |
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- and - |
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A (A Child by Children's Guardian) -and- The Local Authority |
3rd Respondent 4th Respondent |
____________________
C and D in person
Ms Ruth Cabeza (instructed by Graysons LLP Solicitors) for the 3rd Respondent
Ms Nicole Erlen (instructed by the Local Authority) for the 4th Respondents
Hearing date: 13th February 2015
____________________
Crown Copyright ©
Mrs Justice Theis DBE:
Introduction:
Relevant background
Legal Framework
(1) An adoption order may be made on the application of one person who has
attained the age of 21 years and is not married.
....
(4) An adoption order may not be made on an application under this section by the mother or the father of the person to be adopted unless the court is satisfied that—
(a) the other natural parent is dead or cannot be found,
(b) by virtue of section 28 of the Human Fertilisation and Embryology Act 1990 (c. 37), there is no other parent, or
(c) there is some other reason justifying the child's being adopted by the applicant
alone,
and, where the court makes an adoption order on such an application, the court must record that it is satisfied as to the fact mentioned in paragraph (a) or (b) or, in the case of paragraph (c), record the reason.
application by virtue of s 51(1). By virtue of the provisions of the 2008 Act he is not to be treated as being A's father, consequently an adoption order could not be made under s 51(4).
'(1) An application for an adoption order may not be made unless—
(a) if subsection (2) applies, the condition in that subsection is met,
(b )if that subsection does not apply, the condition in whichever is applicable of
subsections (3) to (5) applies.
(2) If —
(a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or
(b) the applicant is a parent of the child,
the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.
(3) If the applicant or one of the applicants is the partner of a parent of the child, the condition is that the child must have had his home with the applicant or, as the case may be, applicants at all times during the period of six months preceding the application.
(4) If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.
(5) In any other case, the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them for not less than three years (whether continuous or not) during the period of five years preceding the application.
(6) But subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.
(7) An adoption order may not be made unless the court is satisfied that sufficient opportunities to see the child with the applicant or, in the case of an application by a couple, both of them together in the home environment have been given—
(a) where the child was placed for adoption with the applicant or applicants by an adoption agency, to that agency,
(b) in any other case, to the local authority within whose area the home is.
(8) In this section and sections 43 and 44(1)—
(a) references to an adoption agency include a Scottish or Northern Irish adoption agency,
(b) references to a child placed for adoption by an adoption agency are to be read accordingly.'
'(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 (c. 41)) 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.'
(1) A person who is neither an adoption agency nor acting in pursuance of an order of the High Court must not take any of the steps mentioned in subsection (2).
(2) The steps are—
(a) asking a person other than an adoption agency to provide a child for adoption,
(b) asking a person other than an adoption agency to provide prospective adopters for a child,
(c) offering to find a child for adoption,
(d) offering a child for adoption to a person other than an adoption agency,
(e) handing over a child to any person other than an adoption agency with a view to the child's adoption by that or another person,
(f) receiving a child handed over to him in contravention of paragraph (e),
(g) entering into an agreement with any person for the adoption of a child, or for the purpose of facilitating the adoption of a child, where no adoption agency is acting on behalf of the child in the adoption,
(h) initiating or taking part in negotiations of which the purpose is the conclusion of an agreement within paragraph (g),
(i) causing another person to take any of the steps mentioned in paragraphs (a) to (h).
(3) Subsection (1) does not apply to a person taking any of the steps mentioned in paragraphs (d), (e), (g), (h) and (i) of subsection (2) if the following condition is met.
(4) The condition is that—
(a) the prospective adopters are parents, relatives or guardians of the child (or one of them is), or
(b) the prospective adopter is the partner of a parent of the child.
Breach of s 92 is a criminal offence under s 93 ACA 2002.
"relative", in relation to a child, means a grandparent, brother, sister, uncle or aunt, whether of the full blood or half-blood or by marriage [or civil partnership]
Welfare
'An adoption order would be the most appropriate order in relation to [A]. [A] clearly has formulated a secure attachment to [B] and seeks him out for reassurance....[B] understands that [A] will need to know about how he was conceived and feels that he will utilise the security of the family structure to support [A] in understanding that he is a very much wanted child. An adoption order would afford [B] the overall parental rights and responsibility and provide permanence for [A] in accordance with the family wishes. This would also strengthen the bond which they already share...
[C] and [D] entered into the arrangements to help [B] have a child on a voluntary basis with the agreement and hope that [B] would be able to become a legal parent to [A]. They are aware that sometimes family relationships breakdown. This is not something they envisage due to their close relationships as a family. [C] and [D] feel confident they will continue to be a part of [A's] life but wish this in a grandparent role and for [B] to be able to continue to parent [A].'
'[C] and [D] fully support [B's] application. The family received counselling via [the clinic] during the process of the surrogacy. They are both of the view that adoption will provide the legal framework and structure for [B] to be the legal father as well as the biological father, with them being supportive grandparents to [A].
[C] and [D] report that they have always regarded [A] as their grandson. The family as a whole have been on a long journey to achieve the much wanted son for [B].
[C] and [D] are aware they will lose their legal parental rights for [A] should the order sought be granted. They are clear this is the appropriate step for [A] should the order sought be granted. They are clear this is the appropriate step for [A] and they do not wish to retain parental responsibility, which should lie with [A's] biological father [B].
Observations of [A] in the care or [B] demonstrates that he expects his needs to be met. [B] responds appropriately with care, affection and confidence to [A's] needs.
The family as a whole are clear and consistent in their view that [A] needs to be aware of his paternity and the circumstances surrounding his birth. Clearly [A] is not of an age to understand the nature of these proceedings. However [B] is committed to explain the circumstances surrounding of [A's] birth to him in an age appropriate manner in the future both to assist with his identity and enable him to understand the lengths the family went to for [A] to be born.'