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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 >> B (A Child), Re [2001] EWCA Civ 1642 (24 October 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1642.html Cite as: [2001] EWCA Civ 1642

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE KINGSTON UPON HULL COUNTY COURT
(His Honour Judge Mettyear)

		Royal Courts of Justice Strand London WC2
		Wednesday, 24th October 2001

1. LORD JUSTICE THORPE: Judge Mettyear, on 11th May 2001, heard evidence and submissions in cross applications relating to a child, S, who is ten years of age. There was an application by S's mother and her mother's husband to adopt S. The competing applications were those of her father, Mr Y, for parental responsibility and contact orders. The judge reserved judgment over the weekend, saying that he wanted to think about the case and look again at the documents. He gave his reserved judgment in Hull on 14th May and, because Hull is geographically convenient to the parties and because Judge Mettyear was returning to sit in York, he arranged for another judge of the court, Judge Cracknell, to make the adoption order in Hull later that week if Judge Cracknell was satisfied that the order should go. On 14th May Judge Mettyear dismissed Mr Y's applications for contact and parental responsibility.
2. The making of the adoption order in the County Court is very important. Universally the judges of the County Court receive the newly constituted family, meet the adopting parents and the child and try and ensure that the occasion is a significant and memorable one, not only the adults, but also for the child, so as to form a happy beginning to the newly constituted family.
3. It was a month later, on 19th June, that Mr Y's application for permission to appeal was filed in this court. The points that were taken in the applications settled by Mr Haigh were obviously of some weight. Accordingly, an order was made directing an oral hearing on notice, with the appeal to follow if permission were to be granted.
4. This morning we have had the advantage of skeleton arguments from Mr Haigh for the father, Mr Nicholls for the adoptive parents and Mrs Pope for the guardian ad litem.
5. The principal point taken by Mr Haigh must be explained by a short statement of the relevant history. S was born in 1991 during the course of the relationship between the parents, who were never married. Their relationship broke down in acrimony and violence, after which there were a number of applications to the court and orders made, none of which I need record this morning. The mother married her current husband in June 1998. Almost immediately thereafter the father withdrew his then current application for contact. His motives for doing so seem to have been entirely creditable. He had decided to withdraw pressure from the newly constituted family. He was in any event just about to embark on an academic year at Ruskin College, Oxford. The application for adoption was filed on 1st July 1999 and it seems to have been progressed unfortunately slowly. The schedule II report was not filed for 18 months and it was not until 5th February 2001 that the court appointed the guardian ad litem. On 20th February the father issued his cross-applications for contact and parental responsibility, and that then constituted the case decided by the judge on 11th May.
6. By the time the case came for hearing the father had had no direct contact with S for approximately three years. During that period he had been maintaining regular indirect contact in the form of cards, letters and presents. He had no reason to believe that those were not being received and appreciated by his daughter. However, the schedule II report revealed that:

"... [S] is unaware of [the indirect contact] as her mother has intercepted the post on all but one occasion [when S] spontaneously deposited the card in the dustbin."

7. In the guardian's report, filed some three months later, there was a different story. At paragraph 9.8 she recorded:

"In relation to the cards and presents [Mr Y] has sent [S] over the past three years, [the mother] assures me that she did pass the presents on to [S].

Seemingly, in her oral evidence she told the judge that she had intercepted the communications, but that she had recently admitted that interception to S. That last point was apparently not tested further during the course of her cross-examination.

The judge obviously had considerable sympathy for the father in these circumstances. Of the mother's act in intercepting the communications he said:

"In my view the mother's decision was unreasonable and unfortunate. I cannot accept that sensitive handling of the reaction of [S] would not have overcome the problems that she seems to have displayed, without the need for the mother taking the draconian step of cutting the father off from all contact with his own daughter. Even if she was justified in withholding the letters, cards and presents, and I do not believe she was, the least she should have done was to inform the father about what was happening."

8. Later in his judgment he said that he had not found the case an easy one. He continued:

"My feeling is that had [S] been told early on that her father loved her and wanted to be part of her life, albeit not directly at that stage, and that therefore an Adoption Order was not appropriate, but that all or very nearly all that she wanted from such an order could be achieved in other ways, e.g., by a Residence Order and if necessary a change of name by deed poll, my belief is that if she had been told those things, there is a very good chance that she would have accepted it. In my view, such a result would have produced fairness and would have been desirable."

9. In relation to those observations, the judge on each occasion reminded himself that he had to deal with what had happened and not with what should have happened. On the basis of what had happened, he looked to S's vehement desire to be adopted and her equally vehement desire to have no relationship with her natural father. He was reminded by the advocate for the guardian that the test that he had to apply under section 6 of the Adoption Act 1976 was the welfare of the child as first consideration throughout her childhood. Applying that test, he held that the adoption order was almost inevitable. He expressed his regrets, saying:

"... as I indicated earlier I personally regret that to be the case. Certainly I do not believe that it does justice to the father."

10. He went on, unusually, to direct that there should be indirect contact post-adoption on three occasions a year. I am not myself quite clear as to the foundation of that ancillary order. Mr Y's status within the adoption proceedings was tenuous since he was not to be regarded as a parent pursuant to the terms of section 72(1) of the Adoption Act 1976. However, it is quite clear that the parties have accepted the judge's ancillary direction as being of binding effect.
11. Mr Haigh, for the father, says that this is an error of principle in the judge since the tie between child and father is of the greatest strength and is not to be cut off unless the circumstances fully justify the conclusion and unless the welfare considerations really outstandingly demand it. He relies on a recent decision of this court, Re B (Adoption by one natural parent to exclusion of other) [2001] 1 FLR 589.
12. Mr Nicholls, in response, makes a number of points, all of which are, in my view, sound. He says that it is perfectly plain that the judge applied welfare considerations generally and did not only look to the child's wishes. Secondly, he points out that the child's status was changed on 18th May of this year and the impact on the child of removing that status change six months later by an appellate court would need very sound foundation. Thirdly, he makes the general and incontrovertible point that judges must decide cases on the facts and circumstances as they are at the date of judgment and not on speculation as to what they might have been had the past developed differently. Finally, he says that there is an important distinction between the present case and that of Re B. Re B was founded upon an attempt by one parent to exclude the other by the process of adoption, so that at the end the child would be left with a single parent rather than two. Here the purpose and intention of the application is to consolidate the child within a new family, to which a child has been born between the date of the order and the date of this hearing; that is to say, S has a very young step-sister.
13. I am in no doubt at all that Mr Nicholls' submissions prevail. He rightly draws attention to the decision of the European Court of Human Rights in Soderback v Sweden [1999] 1 FLR 250. The correct approach is undoubtedly to have regard to the rights and interests of each member of the family and each of the parties to the case. Those rights and interests must be weighed and balanced one against the other, always putting the interests of the child as first or, as we would say, paramount.
14. I would only add finally the importance of a general recognition within the professions of the disappointment argument. This court has in the past emphasised that, as a matter of practice, if a party to proceedings in the County Court that culminate in an adoption order wishes to challenge that in this court, the challenge must be laid prior to the vital meeting between the child and the judge, so that the County Court or, it may be, this Court can consider whether a stay should be imposed prior to that all-important meeting. No such step was taken in this case and it has undoubtedly diminished the father's prospects of success in his application. I only add that injustice to an adult party is sometimes the consequence of making the welfare of the child the court's paramount consideration.
15. So despite Mr Haigh's skilful submissions, I am not persuaded that permission should be granted in this case and I would accordingly refuse the application.
16. SIR MARTIN NOURSE: I agree that the application should be dismissed for the reasons given by my Lord. I express the essence of my view in my own words.
17. The judge said that he had not found the case as easy as the social workers and the guardian ad litem apparently had. He then proceeded to deal with the case on the basis of what had actually happened, stating the relevant considerations on each side and concluding that an adoption order should be made. It is submitted by Mr Haigh that the judge erred in principle in relying too much on the child's wishes or, as my Lord formulated it in argument, by confusing welfare with wishes. I would reject that submission. The judge had no alternative, in the circumstances with which he was faced, but to pay the closest attention to her wishes. Moreover, for my part, although it was a difficult decision, I think that he was right to make the order he made.
Order: application for permission to appeal dismissed; detailed public funded costs assessment for all parties.