My eye was caught this week by the publication of a judgement in an adoption dispute which had made its uncertain way all the way to the Court of Appeal.
On the face of it, In the Matter of CB (A Child) was a relatively straightforward, albeit sorry saga of parental neglect. A Latvian single mother living in London is found drunkenly pushing her baby in a buggy down the middle of the road at night. Later a police offer visits the mother’s home and find the baby living in “appalling”, deeply unhygienic conditions too unpleasant to list here.
Unsurprisingly CB is immediately taken into police protection, under section 46 of the Children Act 1989, which covers ‘removal and accommodation of children by police in cases of emergency’. Shortly afterwards, she is placed with foster carers. Equally unsurprisingly, the local authority pushes ahead with an application for care and placement orders. These were granted in July 2012, , formally placing CB in care and making her available for adoption.
The youngster spent less than a year in care before prospective adopters were found. The later applied to make the adoption official.
Despite the insalubrious circumstances and serious doubts about the mother’s ability to care for the child, she did not consent to the adoption of CB and pursued her opposition through multiple court appearances. When the toddler was first taken into care, she unsuccessfully applied for her return. Later she attempted to have the placement order revoked, but this was rejected on the grounds that there had been an insufficient change in circumstances to justify revoking the order. In other words, she had not made sufficient efforts to change her lifestyle. Later, she unsuccessfully applied for permission to see her daughter.
Later still, the mother took her opposition still further, applying amongst other things for the case to be transferred back to her home country, under EU conflict of law legislation Brussels II Revised. She also made a further attempt to oppose the adoption order altogether.
Her application came before His Honour Mr Justice Moylan last December. Her legal team had argued that Article 15 of Brussels II Revised applied– this governs the circumstances in which a family dispute can be transferred to a court in another member state “better placed to hear the case”.
But Mr Justice Moylan ruled that “the Regulation does not apply to decisions on adoption or to measures preparatory to adoption”.
Meanwhile, her application to oppose the placement order, under the Adoption and Children Act 2002, also failed. The Judge was not convinced that the mother had made any significant change in her lifestyle since CB was first taken into care.
“There is no evidence to suggest that any of the key elements of [her lifestyle] have changed. Rather the mother’s sustained efforts to challenge the evidence and the judge’s conclusions serve to demonstrate, in my view, that nothing of substance has, in fact, changed. The mother’s reliance on having a wide support network, the support of her family and on her being more settled do not address the reasons why care and placement orders were made in 2012 and the circumstances which led to and justified those orders being made.”
The mother was initially refused permission to appeal this ruling, but when she renewed application, the case came before the august eye of Sir James Munby himself, the President of the Family Division, ‘on the papers’ (ie without oral arguments).
He granted the mother permission to appeal because he felt that the case raised some important legal points. This approach is permitted under the Civil Procedure Rules section 52.3(6). This states that appeals may be heard if there is a “compelling reason” to do so, rather than the usual “real prospect of success”. So the mother’s further failure in the Court of Appeal was anticipated even before the hearing took place.
In a detailed judgement, Sir James examined the points raised. Mr Justice Moylan had been right, he declared, in his assertion that Brussels II Revised did not apply to “placement measures” (i.e. adoption).
Both the mother and the Latvian had complained about an alleged failure on the part of the British authorities to keep them informed about the “detention of their citizen”. Sir James considered whether or not the mother’s local authority had breached the Vienna Convention, an international treaty defining diplomatic relations between different countries. At one point the authority – the London Borough of Merton – had in fact apologised to the Latvian ambassador for not informing the Latvian authorities at the outset and thereby failing to meet their obligations under the Convention.
But Sir James left the question open-ended, writing:
“In my judgment, any breach by the local authority of its obligations, whatever they were, under the Vienna Convention – and I am not saying that there was any breach of any relevant obligation – has not, in the circumstances of this particular case had any effect on the outcome. There is simply nothing to show that, if they had been earlier involved, the Latvian authorities would have adopted a stance different from that which, in the event they did, or which would have led to the proceedings taking a different course.”
Another issue raised by the mother had been the initial grounds for adoption. Had there really been no alternative to the severing of the mother-child relationship, a consideration now explicitly required by family law judges? Sir James wrote:
“I am acutely conscious of the concerns voiced in many parts of Europe about the law and practice in England and Wales in relation to what is sometimes referred to as ‘forced adoption‘ but which I prefer, and I think more accurately, to refer to as non-consensual adoption.”
The President quoted comments he had made in an earlier judgement on the practical consequences of this situation:
“It would be idle to ignore the fact that these concerns are only exacerbated by the fact that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent … Thus the outcome of care proceedings in England and Wales may be that a child who is a national of another European country is adopted by an English family notwithstanding the vigorous protests of the child’s non-English parents.”
He then turned to the challenges presented by this state of affairs, saying the courts must ensure that “our processes are not subject to justifiable criticisms.”
The President goes on to provide guidance on this very issue. Local authorities must proactively alert the relevant authorities in international cases, he declared, and do so at the earliest possible opportunity. They must consider the possibility of transfer to a foreign court under Brussels II Revised as soon as cases with an international dimension begin, and they must ensure that adoption is the option of last resort in any cases which do proceed within the English court system. The ‘welfare checklist’ – used to assess the best interests of children in family disputes – must also be subjected to an “appropriately rigorous approach” he declared.
Sir James insisted, however, that, whatever concerns may be expressed in other countries, ‘non-consensual adoption’ was fully compatible with the UK’s international legal obligations under the European Convention for the Protection of Human Rights and Fundamental Freedoms, or as it is more commonly known, the European Convention on Human Rights.
This is a fascinating and instructive judgement and one I would urge any lawyer with an interest in adoption law to read in full. Adoption is – and always has been – a controversial, hot button topic. It can be very difficult for biological parents, no matter how troubled, to accept that they have lost their child for good. But sometimes it really is the case that ‘nothing else will do’.
In The Matter of CB (A Child) is available here.