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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Seddon v Oldham MBC (Adoption : Human Rights)  EWHC 2609 (Fam) (14 September 2015)
Cite as:  Fam Law 1447,  2 FLR 87,  2 WLR 1013,  EWHC 2609 (Fam),  WLR(D) 388,  Fam 171
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IN THE MATTER OF THE HUMAN RIGHTS ACT 1998
AND IN THE MATTER OF CHILD A
B e f o r e :
| KIRSTY LOUISE SEDDONOLDHAM
|METROPOLITAN BOROUGH COUNCIL
Seddon v Oldham MBC (Adoption: Human Rights)
Lorraine Cavanagh (instructed by Oldham Borough Council) for the Respondent
Hearing date: 19 June 2015
Judgment date: 14 September 2015
Crown Copyright ©
Mr Justice Peter Jackson:
(1) Do rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 (ECHR) survive the making of an adoption order?
(2) Did the coming into force in April 2014 of s. 51A Adoption and Children Act 2002 (ACA 2002), which allows the court to make a post-adoption contact order, create or maintain an Art. 8 right as between a birth parent and an adopted child?
(3) Is s. 51A(4) ACA 2002, which requires a former parent to obtain the permission of the court before applying for contact with an adopted child, incompatible with the ECHR?
(4) Does a post-adoption letterbox service run by a public body give rise to Art. 8 rights as between a birth parent and an adopted child?
(1) The making of an adoption order always brings pre-existing Art. 8 rights as between a birth parent and an adopted child to an end. Those rights arose from and co-existed with the parent-child relationship, which was extinguished by adoption.
(2) s. 51A ACA 2002 does not create or maintain an Art. 8 right as between a birth parent and an adopted child.
(3) s. 52A(4) ACA 2002 is not incompatible with the ECHR.
(4) A public body running a post-adoption letterbox service is obliged under Art. 8 to respect correspondence between a birth parent and an adopted child and adopters, the obligation arising from the nature of the correspondence and not from the former parent-child relationship.
(1) Declarations under the Human Rights Act 1998 (HRA 1998):
(a) That under Art. 8 ECHR she and A have a right to respect for their private and family life and correspondence, notwithstanding the making of the adoption order.
(b) That the Council is a public body exercising a public function within the meaning of ss. 6 and 7 HRA 1998 and can be held accountable when running its post-adoption letterbox service.
(c) That the Council acted unlawfully on one occasion by redacting and refusing to forward her correspondence via its letterbox service, and should be replaced by another service provider.
(d) That s. 51A(4) ACA 2002 is incompatible with the ECHR.
(2) Leave to issue an application for contact under s.51A ACA 2002.
(1) Ms Seddon's claims for declarations are dismissed. Instead I declare that:
(a) All pre-existing Art. 8 rights between Ms Seddon and A were extinguished by A's adoption.
(b) In running its post-adoption contact service, the Council, as it now concedes, is performing a public function.
(c) In redacting or not forwarding correspondence sent via its letterbox service on one occasion the Council's actions were lawful.
(2) Ms Seddon's application for permission to apply for contact is dismissed as being totally without merit.
The care and adoption proceedings
99. … A, as every child, is entitled to a family life in which all her needs will be met. I am afraid mother cannot meet those in the next few months, and it is too long to wait in the forlorn hope that perhaps things will change through a process of further work, notwithstanding the assessment processes of the last twelve months, or through some attempt to address the issues of her past.
100. So I am satisfied that although it is very much a draconian step, it is an overriding necessity in the best interests of A that the court should take this step. Having in effect rehearsed the welfare checklist in the course of the judgment which I have given, essentially mother is not capable, and will not be capable in anything remotely approaching a child of 14 or 15 months of age's timescale, of meeting A's emotional and holistic needs. So with profound sadness, but without hesitation, I approve the care plan.
101. … The Guardian in her evidence did not totally discount direct contact but said it is very dependent on mother's ability to accept the placement and that she is not the parent. … I think Miss Hogan [the social worker] got it right eventually when, leaving aside the issue of indirect contact, which is not really an issue, she looked at the question of possible direct contact. She said this: "The carers are open to indirect contact twice a year. They are open to the possibility of direct contact but would like to hear about the outcome of the professionals' assessment and make their own decision. They are concerned how they would protect A with her unusual name", and of course they now have the modern day curse of social networking sites and the Internet which sometimes get in the way of preservation of confidentiality of placement.
102. That sadly, not just as an issue in this case but as an aspect of a new Local Authority policy which I think is being replicated across the country, in the experience of this court, has given rise to angst amongst adoption professionals. It means the Local Authority has reluctantly concluded that it would not be appropriate to have the conventional indirect contact insofar as that might include photographs. So on the issue of direct contact, the carers have reservations. They have not ruled it out. Miss Hogan herself would have some concerns. Mother said if it was only going to be once a year, what is the point. The real problem is that mother would have to accept the placement, which, as Miss Hogan rightly said in the context of somebody who was emotionally and bitterly opposed to the plan for adoption, would be a big ask.
103. I think the short answer is that today is not a day for decisions in that regard. The carers will have a short term and no doubt, as the dust settles, a long term view. Mother's response to this judgment and to the possibility that she might have to work with professionals if there were to be direct contact would be an important factor. I am pessimistic that it is achievable, given mother's views, but I may be wrong and time will tell. I think that is for the future, although I think the Local Authority at some stage will have to file a very short amended or revised care plan just dealing with the issue of contact, and how it will pan out is something for the future in the light of the carers' views, the mother's perceptions and views, and trying to get it right and work out what is in A's best interests.
35. The issue of contact of course has had to be considered. I return to the judgment I gave in February. The guardian had said that post-adoption direct contact (and I add that the plan is for indirect contact) would be very dependent on the mother's ability to accept the placement and that she is not the parent. I am bound to say that the mother's actions and attitudes since judgment emphasise that the one thing she is not doing is accepting the placement and that she is not going to parent. She cannot accept it. That is a tragedy in the case. However distressing the outcome may be, the mother must move on and it would be, and perhaps will be, very much against her long-term interests and emotional equilibrium if she refuses to move on and fights a hopeless fight against A's removal from her and the court's considered decision, in the light of the most intensive assessments of the mother, not to return A to her.
37. In the three months that have passed, if anything, time is telling us that the mother refuses to accept the judgment. I accept the evidence of Miss Hogan and of course, under section 46(6), I have to consider before making an adoption order whether there should be arrangements for allowing any person contact with the child. I accept the evidence of Miss Hogan today that direct contact would manifestly not be in A's interests and that the mother is confusing her own and the child's interests. She is not accepting adoption is right, or the plan, even if she does not necessarily fully agree with it. Her view of the future is clearly not what the court has determined is best for A and, as things stand, I regret to conclude that any direct contact, given the bitterness and depth of the mother's opposition, will have the potential to unsettle A and/or her carers. It would be very much against A's interests. In any event, the harsh reality is that the carers know what mother's current position is and would, I have no doubt, find it extraordinarily difficult to embrace contact with such an oppositional mother.
(1) In March 2010, her application for permission to appeal against the care and placement orders was heard on notice to the parties by Wall LJ and was dismissed.
(2) In May 2010, a second attempt to appeal those orders was dismissed by Wilson LJ on the papers as being totally without merit.
(3) In September 2010, she sought permission to appeal the decision of HHJ Allweis to dismiss the application for leave to apply for a contact order and his refusal to recuse himself. This application was dismissed by Thorpe LJ in December 2010, who said:
The applicant has put her case this morning to me with conviction, ability and careful preparation. However, it is in reality a hopeless application. The judge has dispatched both applications not just within the ambit of his discretion but plainly as any judge would have dispatched them. There is no role for this court and I refuse the application for permission.
(4) In October 2010, Ms Seddon petitioned the European Court of Human Rights.
(5) In December 2011, she made her first claim under the Human Rights Act 1998. It was in very much the same terms as the present claim. Ms Seddon sought declarations that she retained Art. 8 rights, and also claimed that the Council had acted unlawfully in relation to indirect contact and in not assessing the viability of direct contact. In response, the Council filed a statement from the adoption team which included this narrative:
A's adopters have been very aware of Ms Seddon's involvement of the media including television, radio, newspaper articles and the internet, in publicising her legal action to challenge the adoption. It has been unsettling for them and has caused them some anxiety but they nevertheless remain committed to indirect contact through the letter box arrangement. They do not bear any ill-will towards Ms Seddon and have A's best interests at heart at all times.
In March 2012, those proceedings ended. Charles J, having heard counsel for Ms Seddon (Alison Russell QC) and the Council (Anthony Hayden QC), made no order, with the following recording:
UPON IT BEING RECORDED THAT there is a firm commitment on the part of the adopters to continue with indirect contact in the form of an exchange of information by letterbox once each year; their first letter having been sent on the 7 March 2012.
(6) In July 2012, the European Court of Human Rights in its decision in KS v United Kingdom Application No. 62110/10 declared Ms Seddon's complaints inadmissible. It held that:
 The decision to refuse the applicant's request for direct contact, following the making of the adoption order, was also fully reasoned and justified. The judge concluded, on the basis of the evidence, including his knowledge of the applicant's opposition to the adoption, that it would be contrary to M's need for stability with her new parents to allow the applicant direct contact.
 In view of the foregoing, the Court is satisfied that the various assessments and orders were intended to safeguard the well-being of the applicant's daughter, and were not disproportionate to that aim. In particular there is no evidence in the file to suggest that the national authorities failed to respect the applicant's right to family life because of any preconception that her own childhood had left her unfit to care for her child. The court reiterates that given the importance to be attached to the protection of children and the fostering of secure family environments, it must not rush to substitute its own judgment in place of the authorities who are best placed to assess and respond to the needs of society (see B and L v United Kingdom, no. 36536/02, §36, 13 September 2005). In the circumstances of the case, and particularly taking into account the rights and interest of the child, the Court considers that the measures taken did not exceed the margin of appreciation afforded to the respondent State under Article 8.
Given the research evidence on direct post adoption contact is that this is beneficial or neutral (except in cases where parents undermine the placement), in my view A's lifelong best interests are likely to be compromised by her contact with her mother ceasing for the remainder of her childhood.
From the perspective of A growing up with an inaccurate sense of her true identity, heritage and generic connections; cessation of contact would likely result in disadvantage described by Owusu-Bempah (2007) as the absence of "genealogical connectedness".
The adopters need to appreciate (in a socially-networked virtual world) that it is now almost inconceivable that A and Ms Seddon will not resume contact with each other at some stage during A's adolescent/young adult years.
It is also likely one day that A will read the court papers concerning her history and her adoption. She will learn how vigorously her mother 'fought' to have her returned to her care, and how they were prevented from maintaining contact with each other. This could fuel her resentment and anger towards her adoptive family and be a disturbing experience for A, which could threaten her lifelong wellbeing.
If the adopters are not willing at this stage to promote some agreed level of direct contact between A and her mother during her childhood years (on the basis that Miss Seddon can abide by terms and conditions), the more likely it is that A will eventually reject them in favour of her mother in her teenage/young adult years.
(1) In October 2010, Ms Seddon called the Council's adoption team. She was told that the arrangement was for contact once a year. Ms Seddon was unwilling to sign the Council's letterbox arrangement form.
(2) In November 2010, Ms Seddon called the adoption team and was given advice again about the independent support service she could access via Caritas and a leaflet regarding this service was sent out to her.
(3) In November 2011, Ms Seddon sent her first letter to the letterbox. It was forwarded to the parents and a letter of thanks was sent to Ms Seddon.
(4) In March 2012, the parents wrote to Ms Seddon via the letterbox system and the letter was subsequently forwarded to her.
(5) In September 2012, the parents sent another letter to Ms Seddon through the letterbox system.
(6) In December 2012, Ms Seddon replied via solicitors (Goodman Ray). They sent two letters from Ms Seddon to the letterbox, one directed to the parents and one to A, with copies to the Council's legal department under cover of a legal letter that enclosed the social work report of Dr Dale.
In their letter, Goodman Ray referred to passages in Dr Dale's report. They asked the Council to assess Ms Seddon for suitability for having direct contact and also asked it to send the report to the parents with the request that they agree to direct contact.
(7) The Council did not forward this correspondence in its entirety to the parents, considering that it was not the purpose for which letterbox contact had been set up and that it would be likely to unsettle them. In December 2012, its legal department told Ms Seddon this. (Ms Seddon says she did not receive this letter and some other correspondence from the Council, but nothing now turns on this.)
The Council's letter to Ms Seddon included this passage:
Neither A nor her family live within the area of Oldham Council. It does not have parental responsibility for A. It is not the business of this Authority to be applying any pressure for the adoptive family to agree to direct contact when it is plain that they are not comfortable with it given the number of court hearings and appeals as far as the Court of Appeal and the European Court of Human Rights instigated by your client, none of which have found in your client's favour.
(8) In the same month, Ms Seddon telephoned the adoption team and when she was told that the social work report would not be sent to the parents, she hung up.
(9) In January 2013, the Council forwarded Ms Seddon's letter to A and the parents with some relatively minor redactions. The redacted passages were emotive (for example referring to her rescuing a kitten "that was too young to be away from its mum") and their removal was in my view appropriate. The Council did not forward the letter from Ms Seddon to the parents, or the solicitors' letter, or the social work report. It wrote to Ms Seddon saying what it had done and reminded her to write again in September 2013.
(10) In September 2013, the adoption team received a telephone call from an angry Ms Seddon. She wanted to send cards and presents and asked for a meeting. It was explained that although a meeting could be arranged, the parents wanted to receive a letter and nothing more. Post-adoption support was offered through Caritas.
(11) Later in September 2013, the parents wrote to Ms Seddon and the letter was subsequently forwarded to her.
(12) In October 2013, Ms Seddon met the adoption team manager and arrangements for letters to be sent by email were agreed.
(13) In September 2014, Ms Seddon wrote to the parents and the letter was forwarded by the Council.
(14) In March 2015, the parents wrote to Ms Seddon and the letter was subsequently forwarded to her.
(15) The next exchange of letters will take place in September 2015.
Overview of the litigation
(1) The proceedings and appeals surrounding A's adoption ran between May 2009 and December 2010.
(2) The ECHR proceedings ran between October 2010 and July 2012.
(3) The first HRA proceedings ran between December 2011 and March 2012.
(4) The civil proceedings concerning Ms Seddon's own care ran between April 2010 and September 2014.
(5) These proceedings began in July 2014 and have continued for a year.
Question 1: Do Art. 8 rights survive the making of an adoption order?
Status: s.67 ACA 2002
(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.
The act of adoption has always been regarded in this country as possessing a peculiar finality. This is partly because it affects the status of the person adopted, and indeed adoption modifies the most fundamental of human relationships, that of parent and child. It effects a change intended to be permanent and concerning three parties. The first of these are the natural parents of the adopted person, who by adoption divest themselves of all rights and responsibilities in relation to that person. The second party is the adoptive parents, who assume the rights and responsibilities of parents in relation to the adopted person. And the third party is the subject of the adoption, who ceases in law to be the child of his or her natural parents and becomes the child of the adoptive parents.
Thus, in this context, section 12(6) of the Act of 1976 seems to be intended to enable the court to limit, or impose conditions upon, those parental rights and duties which would otherwise be extinguished in the natural parents. Thus, by imposing a condition relating to access in favour of the natural parents, the court will both qualify the parental rights conferred upon the adopters and leave to that extent unextinguished the parental rights of the natural parents.
Contact: s. 46 ACA 2002
The European Conventions on the Adoption of Children
1. Adoption confers on the adopter in respect of the adopted person the rights and obligations of every kind that a father or mother has in respect of a child born in lawful wedlock. Adoption confers on the adopted person in respect of the adopter the rights and obligations of every kind that a child born in lawful wedlock has in respect of his father or mother.
2. When the rights and obligations referred to in paragraph 1 of this Article are created, any rights and obligations of the same kind existing between the adopted person and his father or mother or any other person or body shall cease to exist.
Upon adoption a child shall become a full member of the family of the adopter(s) and shall have in regard to the adopter(s) and his, her or their family the same rights and obligations as a child of the adopter(s) whose parentage is legally established. The adopter(s) shall have parental responsibility for the child. The adoption shall terminate the legal relationship between the child and his or her father, mother and family of origin.
The European Convention on Human Rights
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.
The question of the existence or the non-existence of 'family life' is essentially a question of fact depending upon the real existence in practice of close personal ties.
"I know I have addressed A as my Daughter throughout this statement, this is because she is and always will be my Daughter, biologically but I would just like to note that I am aware and do accept that she is the Adoptive Parent's Daughter as well."
43. Now given the effect of an adoption order as set out in sections 46 and 67 of the 2002 Act it is very far from obvious, to say the least, that the natural parents can thereafter have any Article 8 rights at all vis-à-vis a child who is no longer their child. … The point, however, has not been fully argued out before us and we therefore say no more about it, except to make clear that even if Judge Corrie was correct in assuming that the natural parents had Article 8 rights capable of being engaged in the application before him (and we do not assume, let alone decide, that they did), those rights would not, in our judgment, have sufficed to tip the balance in their favour.
Question 2: Does s. 51A ACA 2002 create or maintain an Art. 8 right as between a birth parent and an adopted child?
51A Post-adoption contact
(1) This section applies where –
(a) an adoption agency has placed or was authorised to place a child for adoption, and
(b) the court is making or has made an adoption order in respect of the child.
(2) When making the adoption order or at any time afterwards, the court may make an order under this section –
(a) requiring the person in whose favour the adoption order is or has been made to allow the child to visit or stay with the person named in the order under this section, or for the person named in that order and the child otherwise to have contact with each other, or
(b) prohibiting the person named in the order under this section from having contact with the child.
(3) The following people may be named in an order under this section –
(a) any person who (but for the child's adoption) would be related to the child by blood (including half-blood), marriage or civil partnership;
(b) any former guardian of the child;
(c) any person who had parental responsibility for the child immediately before the making of the adoption order;
(d) any person who was entitled to make an application for an order under section 26 in respect of the child (contact with children placed or to be placed for adoption) by virtue of subsection (3)(c), (d) or (e) of that section;
(e) any person with whom the child has lived for a period of at least one year.
(4) An application for an order under this section may be made by –
(a) a person who has applied for the adoption order or in whose favour the adoption order is or has been made,
(b) the child, or
(c) any person who has obtained the court's leave to make the application.
(5) In deciding whether to grant leave under subsection (4)(c), the court must consider –
(a) any risk there might be of the proposed application disrupting the child's life to such an extent that he or she would be harmed by it (within the meaning of the 1989 Act),
(b) the applicant's connection with the child, and
(c) any representations made to the court by –
(i) the child, or
(ii) a person who has applied for the adoption order or in whose favour the adoption order is or has been made.
(6) When making an adoption order, the court may on its own initiative make an order of the type mentioned in subsection (2)(b).
(7) The period of one year mentioned in subsection (3)(e) need not be continuous but must not have begun more than five years before the making of the application.
(8) Where this section applies, an order under section 8 of the 1989 Act may not make provision about contact between the child and any person who may be named in an order under this section.
Question 3: Is s.51A(4) ACA 2002 incompatible with the ECHR?
Question 4: Does a post-adoption letterbox service gives rise to Art. 8 rights as between a birth parent and an adopted child?
assistance, including mediation services, in relation to arrangements for contact between an adoptive child and a natural parent, natural sibling, former guardian or a related person of the adoptive child;
What is the Adoption Letterbox Service?
The Adoption Letterbox Service is a confidential service which allows information to be exchanged between adoptive parents and birth relatives after a child has been adopted. Oldham Adoption Service passes information between adoptive parents and birth families while keeping names and addresses confidential.
What can I send via the letterbox service?
Depending on your letterbox arrangement you can send:
Unfortunately we cannot accept cards, gift vouchers, presents, parcels or photographs.
How often is the letterbox?
This depends on your letterbox arrangement, but it is usually once or twice a year.
Is the letterbox agreement legally binding?
Unless a Contact Order has been made by the court, this is not a legally binding agreement. However we would expect people to maintain arrangements agreed for the benefit of the child. This means you must be realistic about what you can cope with, otherwise this leads to disappointment.
If the information is inappropriate the letterbox administrator will discuss this with you.
You can contact the letterbox administrator for advice at anytime. We are here to help make your arrangement work.
How long does letterbox last?
The letterbox lasts until a child reaches 25 years old. Decisions then need to be made about the future. The wishes, needs and circumstances of the adopted child will need to be the main consideration.
The leaflet then explains the steps that correspondents should take and gives guidance and examples.
Ms Seddon's application for leave to apply for contact under s.51A ACA 2002
We cannot understand why after the court proceedings where a decision was clearly set down by Judge Allweis that direct contact should not take place this issue is constantly being raised.
We feel that while we were expecting to have a heightened level of vigilance as adoptive parents we did not anticipate the level of intrusion we have experienced.
Our worries never go away – we are there to protect A and she should feel safe, we have felt compromised in this.
We wondered if the legal profession could afford us any protection as it seems that all the actions give credence to Kirsty's demands, with little regard to our own feelings and wishes. We just want to know when this will be over for us, so we can begin to function as any other family.
We feel that 'the system' has lost sight of the original reasons that A had been placed for adoption. We remember the neglected starved little girl that A was when she first came to live with us.
There has not been 1 year since we adopted our little girl when we have not had additional or intrusive contacts in relation to Kirsty's requests.
We support the adoption team who are trying to protect our emotional wellbeing in acting in this manner.
We do not want to attend court and would like this new request from Kirsty to be quashed.
(1) Dismiss Ms Seddon's claims under the HRA 1998 and her application under s51A ACA 2002.
(2) Make provision for the claim for recovery of the adoption documents to be transferred to me if it is not resolved by agreement, as I hope it will be.
(3) Provide for Ms Seddon to pay the costs of the Council, to be enforced only if she comes into substantial means (i.e. on lottery terms). While recovery is improbable, the order is appropriate against the background of the Council having incurred, but not claimed, the costs of £140,000 that it incurred in successfully defending Ms Seddon's civil action in 2012. Unless further submissions are made, the order will be on the standard basis.
(4) The Council has given forewarning that it may seek a civil restraint order against Ms Seddon. If it does, I will give any necessary directions. As matters stand, I direct that any further litigation of any kind issued by or on behalf of Ms Seddon concerning the Council or A or her parents shall be referred to me for directions or determination upon issue. That may be sufficient to meet the concern that must be felt about this litigation history.