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Cite as: [1997] EWCA Civ 2859

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L (A minor) [1997] EWCA Civ 2859 (28th November, 1997)

IN THE SUPREME COURT OF JUDICATURE CCFMF 97/0856/F
IN THE COURT OF APPEAL (CIVIL DIVISION) CCFMF 97/0938/F
ON APPEAL FROM LINCOLN COUNTY COURT (HIS HONOUR JUDGE O'ROURKE)
AND GREAT GRIMSBY COUNTY COURT (HIS HONOUR JUDGE HUTCHINSON)


Royal Courts of Justice
Strand
London WC2

Friday, 28 November 1997

B e f o r e:

LADY JUSTICE BUTLER-SLOSS
LORD JUSTICE WARD
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L (A MINOR)

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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 831 3183
Official Shorthand Writers to the Court)

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MR ANDREW MCFARLANE (Instructed by Atkins Hope, Croydon, CR9 1SD) appeared on behalf of the Appellant
MR PETER NATHAN (Instructed by Martin & Haigh, North Lincolnshire, DN16 6NS) appeared on behalf of the Respondent


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J U D G M E N T
(As approved by the Court )
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©Crown Copyright


LADY JUSTICE BUTLER-SLOSS: This is an appeal by a father from the order of His Honour Judge O'Rourke made in the County Court on 14 May 1997 whereby the first half of an adoption application was dealt with, that is to say the question principally of whether the father had unreasonably withheld his consent to the adoption of his daughter by the mother and the stepfather. It is, as step-parent cases go, a very sad case and one in which I certainly feel a lot of sympathy for the father.

He married the mother on 22 December 1984. The one child of that marriage, J., was born on 31 March 1985, so she is now twelve and a half. The parents separated in August 1985, only some five months or so after the birth of J. There were attempts at contact and so on, but that was unsatisfactory. For the first three years of J.'s life she had no contact with her father at all.
The decree absolute of dissolution of marriage was in July 1989 and prior to that the father made further applications for contact. The mother was opposed to it. The father has had for a number of years a considerable alcohol problem and that was a serious problem which he only managed to overcome, and it is greatly to his credit that he has done so, some three years ago.
The mother married her present husband in 1989 and the father made further applications for contact in 1990. By this stage the mother, who had retained an unhappy recollection of the marriage with her first husband (the father) was by then opposed to the father coming back into the life of the little girl and indeed into her life. She saw the stepfather as taking the father's place, as undoubtedly he was, and she saw no place for the natural father in her future life. The father made several applications, which were entertained by the court sympathetically, and supervised contact was arranged, since the father had not of course seen this little girl, and she was by then five years old. However, those supervised contacts were frustrated in effect by the opposition of the mother and only took place on two or three occasions. But one result did occur. At the behest of the Judge, the daughter was told that this man who she was seeing was her natural father. The last time she saw him was in August 1990. So that is seven years ago.
He attempted from 1991 onwards to have indirect contact with his daughter by way of letter, postcard, present and so on, and the girl has made it very clear that that sort of indirect contact was not welcome to her. I fear that was partly at least due to the approach of the mother.

In July 1991 her half sister, E., was born and consequently they became a family of four: mother, stepfather, half sister and J.

In March 1994 the mother and stepfather initiated the application to adopt J. In July 1996 the father made another application for contact and that was consolidated with the application to adopt and the two matters came before His Honour Judge O'Rourke. Prior to that Judge Hutchinson was asked to give directions in relation to the calling of expert evidence to deal with the problem of contact and, in particular, the matter which has been of the greatest concern to this father, and very understandably, that the girl has a negative view of him. It is sad for any father to have a daughter with a negative view; it is particularly sad for a father who does not deserve it. This must be something which has been of the greatest concern, dismay and, indeed, distress to this father that his daughter holds this, what the Judge found to be, distorted and incorrect view of her father, particularly since successive judges have considered that he was entirely suitable to see his daughter and to have a relationship with her. So the father through his lawyers sought the opportunity to involve a distinguished child psychiatrist in advising whether or not something could be done to improve the negative image and also to try and reintroduce contact. The second of course was likely to be incompatible with the idea of adoption. Judge Hutchinson asked the pertinent question in the directions as to "What was the point of it in a case such as this?" and having considered it with some care he came to the conclusion there was no useful purpose to be served, particularly since it was not suggested that the psychiatrist should see J. and therefore his advice was inevitably going to be given on the papers and would be defective in being able to give advice in the round. That refusal by Judge Hutchinson to allow an expert child psychiatrist to see the papers and give advice is the first of the two appeals to this court.

The second appeal is in relation to the decision of Judge O'Rourke that the father was unreasonably withholding his consent. There seems little doubt that, subject to whether or not anything can be done about the image that the girl still holds of her natural father, anything that provided for the security and safety and happiness of this child was likely to be that which would come within section 6 of the Adoption Act, that is to say her long-term welfare. It would seem fairly clear from the approach of Judge O'Rourke and all the papers which my Lord and I have seen that there is much to commend from a welfare point of view the idea that she should be adopted into this new family. One major thing that this girl says is that she wants to be the same as her half sister and her half sister is fully a member of a family with her mother and father and J. does not feel quite the same. She has sought successfully to have her name changed from that of the natural father to that of the stepfather and she wants to be seen as fully a member of this new family.

Perhaps what is in some ways rather sadder in this case is that she not only has a negative view of her father, but according to the Guardian ad Litem, at paragraph 5.1:

"[She] is an intelligent, mature and thoughtful young lady. She has a good relationship with both her mother and step-father and impresses as happy, settled and relaxed at home in the company of her family. J. gets on well with her half-sister, E., although at times she admits she is a ´pain'."

That sounds a perfectly normal sisterly approach. But it is 5.3 which is rather sad:

"J. very much wants to be adopted and is quite frightened that her birth father will try and stop this happening. She has an age appropriate understanding of the meaning of adoption. She feels that she loves her step-father very much and that she wishes to be a full member of the present family group. Although she does not know her birth father, J. feels scared of him and remembers having nightmares that he would come and take her away. She continues to view her birth father in a very negative manner and is adamant that she wants nothing to do with him."

That latter part of her worries about her father are unjustified and it is important that she should understand that they are unjustified and it is particularly important that she should understand that he recognises her need to be adopted. The Guardian ad Litem also said in paragraph 8.3 that she did not doubt the degree of love that the father feels for his daughter nor did she underestimate his deep sense of disappointment that he has missed out on so much of J.'s childhood years. Then, in particular, she says of the father:

"These beliefs, whilst very understandable, cannot become a reality against J. expressed wishes."

Those are very wise words from the Guardian. She went on to say:

"She would be devastated if an adoption order was not granted;..."

When the application to adopt was made social services had to be informed. There is also a Schedule 2 report from the social worker which makes it clear at page 48 that:

"J. has very strong and positive views that she wishes to be adopted. I have discussed this openly and independently with her and she is clear in her understanding of what this means for her... J. will become unsettled and unsure when alternatives to adoption are discussed."

Later on in the same report (page 66):

"J. is clear and concise in her wishes and feelings that adoption is what she wants. This opinion is, I believe, a well informed one and has not been made through undue pressure from anyone else. J. ... has been resolute in her commitment towards being adopted."

The other point that I wanted to raise on this is that at the last page of the bundle, page 110, there is a letter in the handwriting of the Guardian ad Litem, but written at the dictation of J, in which she says:

"I am sick of the adoption being delayed because I just want to be adopted.
I want my step dad and my mum to have full responsibility for me because I love them both."

She does not want her birth father to have that responsibility "because he is not part of my life". She wants her name changed legally. She does not want to have indirect contact.

"... but I know [she said] if I ever do [that is want contact] I can ´open the door' and contact my birth father. I know that my mum and step dad will help me with that."

The Judge faced with this problem and the very acute problem of a girl who had an overwhelming desire to be adopted came to the conclusion that it was in the best interests of this child that she should be adopted and also that the father was unreasonably withholding his consent. But in coming to that view he expressed his view of the father (at the bottom of page 6 of his judgment): "... it is quite clear that he has had his troubles and suffered from the serious illness of alcoholism, but I entirely accept his evidence that for over three years he has been completely free of that trouble. He seems to me to be an intelligent, sensitive and sensible man with a genuine feeling of affection towards the daughter he has never really known, and I accept that he does have what he considers to be the best interests of J. at heart in making this application and in opposing the adoption order. There is nothing in his character as revealed to me, having seen him today, which would make him an unsuitable person per se either to have contact with his daughter or indeed to be some sort of figure in her life."
But of course the Judge in making those observations was not only relying upon the reports, he was relying in particular upon his assessment of the father whom he had seen in the witness-box. It is important for me sitting in the Court of Appeal to underline the views of the Judge, because he saw and heard this witness, the father, and to remind everyone, and particularly the daughter, J., that her father was seen by the Judge to be

"an intelligent, sensitive and sensible man with a genuine feeling of affection towards the daughter he has never really known."

But the Judge found that the family unit was a strong and permanent one and would provide a suitable environment for the child to continue to grow up in. The Judge, as I have already said, found that this daughter had a distorted and rather black view as to her father's personality and the sort of man that he is. He came to the conclusion that he should dispense with consent.

The father has appealed to this court not only on the order of Judge Hutchinson, with which I have already dealt, but also on the decision of the judge to dispense with his consent and what is perhaps the most important part of this is that he wishes her to understand that he is not as she sees him.

The father has had the good fortune to be represented by an expert in the adoption field and also counsel and solicitors who are sensitive to the underlying background to these cases as well as to a very great knowledge of the law. This father has heard what this court has had to say about the case, because both my Lord and I are more concerned with the overall welfare of this child, if that can be dealt with, than with looking at the technical rights and wrongs of this case. It is clear that the judge, who in my view took a great deal of trouble over this case, might be criticised for the way in which he has expressed himself on the issues of law with which any judge in an adoption case has to grapple and it is possible that the father would be able to point to areas of his judgment in which it might be said he either took too much account of something or too little account of it in the context of the Adoption Act 1976. But insofar as one looks at the overall position of this child, it is clear that she has a very real need to be adopted. She has a very real need to feel secure and safe in the home in which she lives. She has this utterly erroneous idea that somehow or other her father will come and take her away from where she is. It seems to me that the most important thing for this girl, over and above what may be the rights and wrongs of adoption, is to have an utter feeling of security.

The father, with the assistance of Mr McFarlane and the solicitors, has come to understand that the best thing that he can do for his daughter is to let her have what she wants. It will have cost him a considerable amount of anxiety and, no doubt, no little distress not to pursue his appeal against the finding of the Judge that he had unreasonably withheld his consent. The fact that he has been able to do so is another pointer to the fact that he is clearly a suitable person for J. to know and that he has something to offer her over and above the security and the love of the family in which she is settled. When she has come to terms with the fact that she can now be adopted; she can now do what it is she really wants to do, and legally have the name of her stepfather; feel in exactly the same position and have the same status as her sister, E., if she is a sensitive girl and a mature girl she ought to think very carefully of the man who has been prepared to let her go for her sake but who stands in the wings, who loves her, would like to, if he was allowed, to play a part in her future life, is and will always remain her biological father, a nice man, a sensitive man, a sensible man, and a man from whom she could gain a great deal. I hope that J., even if she cannot now, will nonetheless reflect upon the fact that in going into full membership, as she will see it, of the stepfather family she must not lose completely something that could be very valuable to her, that is to say some connection, however peripheral, with her natural father and his family. She needs to know that her mother's view of her natural father is coloured by her mother's experiences, now thirteen years ago, and that her mother's view of her father is not the last word on the father. She is getting to an age where she is becoming old enough to form her own conclusions as to whether the grown-ups always get it right. She is getting old enough to understand that even those whom she loves very much may not necessarily be right in every matter on which they express an opinion and that she has the right to disagree and she has the right to think for herself that she may benefit from a contact with somebody about whom her mother has given her an unfairly negative view.

It is very much to the credit of this father that he is prepared to let her now be adopted and not to stand in her way and J. ought to give credit to her natural father for having done that. Insofar as her mother may not give her natural father credit, J. ought to reflect as to whether that is something on which her mother may not be as wise as she might be in other matters.

The appeal in respect therefore of the withholding of consent is no longer pursued for the reasons which I have already given. Consequently J. will go forward to be adopted on the second limb of this adoption application. The natural father will not be present at that part of the hearing but he would like, and it would seem to me entirely appropriate, to write a letter, a suitable letter, which will be sent to the judge so that the judge may read it, may give it to J. and may help J. to read it. It is a matter for the judge how he does this. But I think J. must be told in neutral surroundings, and I cannot think of more neutral surroundings than in the judge's chambers, of the fact that this father has not pursued his appeal and has looked to the welfare of his daughter rather than fighting the case any further. The father would also wish to give J. a photograph. I think it would be entirely appropriate that J. should give her father a photograph. That would not of course be given to him personally; she does not want to see him. It should, however, be provided that J. could let her father have a photograph. If she was mature enough and sensitive enough to write him even one sentence with the photograph, she would be doing him a good turn and it would be very nice if she could see her way to doing it. But in any event she ought to provide him with a photograph.

The other application with which the judge dealt and to which I have not referred is an application by the father which was part of these proceedings, consolidated with them, in relation to contact. Counsel have agreed that there should be a very limited form of contact which would be set out in an agreed memorandum to be provided to this court which includes the photograph from the father to J. and with the hope of the photograph from J. to the father and the letter that the father is to send to the judge for the judge to transmit to J. I also hope that the judge will discuss with J. such parts of his judgment and indeed of the judgments that my Lord and I give which deal with the father and which the judge thinks are appropriate for her to know about.

The appeal will be allowed to the extent that there will be the contact which is now agreed between counsel and thereafter there should be added to the section 8 contact order that any further contact should be that initiated by J. That will provide a peg for future contact, but it will also keep alive an application on which the natural father may, if he feels impelled to, come back to the court. But I do say to him that I think he would be unwise to do so unless there is a radical change of circumstance. But he is at least being given the opportunity to be heard without going through the leave process.

The other matter that arises is the question of addresses. The father who lives in London knows the address of the girl in the East of England and he has made no move whatever to go and see her. That is again very sensible forbearance. He is concerned that if the new family move at some time he might lose contact. It would seem to me appropriate that if he moves or if J.'s new family move that there should be somebody who would keep the addresses so that J., if she wishes to be in touch with her father during her teenage years, would know that she would have the ability to find out where he was.

I just say again, because I think it is important, that J. must have enough information from what has happened in this court and before the judge for her to form her own view as to what has happened and to understand that her natural father will always be there wanting to play a part in her life, wanting to do so for her sake and to show that he has something to contribute to her. She must realise also that although she is adopted into a happy family unit she is biologically part of another family and that she can benefit from the roots that she has in that other family as well as in the family unit into which she will be adopted.

I would therefore allow the appeal to the very limited extent of the contact arrangements which counsel are going to hand into the court.

LORD JUSTICE WARD: I agree, but I desire to add a few words of my own in the light of the unusual course this case has taken.

When sitting as a judge of first instance, faced with the really awful decision of dispensing with a good parent's consent, I was always struck by the unbounded happiness that I knew the adoption order would bring to one of the parties and to the deep distress it would cause to the other. The inevitability of such conflicting emotions and reactions being shown is something which each of the parties to this application must take very much to heart. When I say "the parties to this application" I mean not only the adopters and the father but also J. herself, for she is at the centre of it.
To a very great extent I believe that this father has begun today, perhaps with a great deal of prompting from this court, to see how much happiness adoption would bring to his daughter. His decision to give his daughter what she wants, even when it means in a sense giving her away, is shown by the fact that he withdraws his appeal against the finding of the judge that his consent was unreasonably withheld. I praise him for taking that step. It is, in my judgment, a courageous step because it flies in the face of his every instinct to protect not just for himself but more importantly, as he sees it, for J. the family relationship that exists between them. Many children in these troubled days are well able to accept that they can be members of two families and I can therefore sympathise with the father in his struggle to preserve that link. But he is prepared to relinquish it and it is important that J. understands that his release is perhaps the greatest act of love that he can today show her. I hope, and I believe, that she is both intelligent enough herself and sensitive enough to be able to at least begin to understand the difficulties of her father's position.

He will, I believe, attempt to explain his feelings to her in a short letter. I hope she will respond to him. Those two magic little words "thank you" are it seems to me the minimum that she is to be able to say, hard though it will be, and I appreciate that, for her to put pen to paper at all. It will require an equal act of courage on her part to take that step to respond to her father's step taken here today.

I happen to believe, on the evidence of the letter she dictated to the Guardian ad Litem, that she does not in fact shut her father totally from her mind. She says she keeps open the possibility of beginning to make some contact with him at some time in the future. It will not surprise me if she does so. But as she reflects upon that and about him she must bear in mind what the judge, who heard the parties in the court below and who had the best opportunity to form a view about them, said of her father. His findings need to be emphasised. I quote them again, although my Lady has already read them:

"He seems to me to be an intelligent, sensitive and sensible man with a genuine feeling of affection towards the daughter he has never really known..."

Those words must be taken on board by J. In the judgment of this court, which having my Lady in its constitution is a court of great experience and, speaking only of her, of wisdom, it is essential that J. begins to believe that her father may not be quite the frightening, horrible person she has been brought up to believe that he is.

In the equation of adoption, the adopters represent the third of the parties to the application. I well understand the position of the male adopter who has stood as this girl's father and who wishes to formalise that position. He is to be applauded for the good care he has given her. I can sympathise with the mother, and I hope she will gain a sense of the sympathy I have for her, in the misery that an unhappy marriage to the father would have caused her, not just then but in the years that have followed, but it is not as wife that I address her, but as mother. As the mother she has parental responsibility and her responsibility to J. is to remember, as J. grows up and approaches her thirteenth birthday and those terrible teenage years, that J. is entitled to be treated as a young adult and is entitled therefore to make up her own mind, especially about the vital matter of who she, J., is. The immutable fact is that she is one half her father. If she can begin to see her father in a better light she will, I can assure this anxious mother, in fact be able to see herself in a better light. If there are any doubts about this, J. will have an opportunity to discuss it with the Guardian ad Litem who I am certain will endorse all that I say. The mother will fail her daughter if she does not give her freedom of action and freedom to find her father in time.

I doubt very much whether the mother would have expected this man whom she detests so much to have capitulated as he has done today. She therefore ought to recognise in quiet still moments of the night that this is in fact evidence of change in the man that she would never have believed was possible but it is the change which the judge has found.

I add my thanks to solicitors and counsel who have effected this compromise and I end reflecting that tonight there will be a huge celebration in the adopters' household but I hope that there will also be some sense of compassion for the father and some beginnings of a reconciliation that can only work ultimately to the best advantage of this girl.

LORD JUSTICE BUTLER-SLOSS: The appeal therefore is allowed to the extent of the contact only. There will be no order as to costs, save legal aid taxation of both parties. I think that our judgments should be provided at public expense to the judge and to the parties.

I would like just to make two further points. One is, following from what my Lord has said, that we are grateful to Mr Nathan for the way that he and those instructing him on behalf of the adopters have behaved in this case and we would hope that they would assist in perhaps indicating to the mother, in particular, and perhaps the stepfather that there might be a degree of generosity in their approach, since they have now achieved that which they had set their hearts on, so that they can assist their daughter to a proper understanding of what the natural father has done for her today. We would be particularly grateful for the assistance of the Guardian ad Litem between now and the period of adoption. It seems to me that we ought to have a copy of our judgments provided to the Guardian ad Litem so that she could also have a chance to talk to J. about what has happened.

We will dismiss the appeal against the order of Judge Hutchinson and allow the appeal against the order of Judge O'Rourke purely and simply to the extent of the contact.


Order: Draft minute of order to be supplied by counsel; identification direction.


© 1997 Crown Copyright


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