“… an adoption order is one of the most, if not the most, significant and, in human terms, far-reaching of all orders available to a judge in any jurisdiction in England and Wales. An adoption order has a quite different standing to almost any other order made by a court … The severance of a family’s legal (and often actual) relationships, and the creation of a new set of legal family relationships, fundamentally impacts upon the life of the child, the natural parent who faces becoming a ‘former’ parent, and the adoptive parent.”
These are the words of Mr Justice Cobb in his judgment in the case Re J (Adoption: Appeal). In the light of the huge significance of an adoption order, it will only be made if the court is satisfied that all alternative avenues have been properly explored (“nothing else will do”, as Lady Hale said in the 2013 Supreme Court case Re B).
One of those ‘avenues’ is, of course, that the child live with, or retain a relationship with, its parents. Exploring this possibility with regard to the child’s mother (assuming the adoption would make the mother a ‘former’ parent) is usually straightforward, but things can be more complicated with regard to the child’s father, especially if he does not live with the mother and does not have parental responsibility for the child.
An adoption order cannot be made without the consent of the child’s parents, unless the court is satisfied that the parent’s consent should be dispensed with. However, ‘parent’ means a parent having parental responsibility. Accordingly, if a father does not have parental responsibility for the child then the court does not need (or need to dispose with) the father’s consent to the making of an adoption order. However, that does not mean that the father will be ignored – far from it.
As we will see in a moment, Re J concerned a step-parent adoption, i.e. an adoption by the step-father. In such cases the mother and step-father must, before applying for the adoption order, give notice of their intention to adopt to the local authority. The local authority must then arrange for the case to be investigated, and submit a report of the investigation to the court. One of the matters that the local authority should investigate is the position of the natural father, if his identity and whereabouts are known. The natural father will thus be notified of the adoption, if he was not already aware of it, and he could, if he wished, apply for a parental responsibility order and/or a child arrangements order. It is also possible that the court could direct that he be made a respondent to the adoption application especially if, as in Re J, he has previously taken an interest in the child.
As Mr Justice Cobb said, none of this happened in Re J. None of it happened because both the mother and the step-father informed the social worker dealing with the case and the court that they did not know the identity of the father, nor his whereabouts, nor his contact details – they asserted that they had no means of knowing where he could be located.
The facts in Re J were, briefly, that the parents of the child had a relationship for a few months, whilst they were still in their teens. The child, ‘J’, was born as a result of the relationship in about 2006 (we are not given his birth date), and lived with the mother, who was then still living with her parents. In the early weeks of the child’s life the father did visit J, but these visits stopped as the relationship between the parents waned. Thereafter, there was some further contact, until J was about 3 or 4 years old. It appears that part of the reason for the father not continuing with contact was that he was suffering from depression.
The mother subsequently met and married the step-father, and had another child by him. They decided that the step-father should adopt J, and adoption proceedings were instituted in 2013. As mentioned, the identity and whereabouts of J’s father were not given. The adoption order was duly made in May 2013.
In 2016, having made a recovery from his depression, the father wanted to resume his relationship with J, if necessary through the courts. He instructed solicitors, and eventually the mother informed them that J had been adopted. The father then decided to appeal against the adoption order, on the grounds that the mother and step-father had lied about not knowing his identity.
The appeal was not opposed. Indeed, before it was even issued, the father was again having contact with J, the mother’s marriage to the step-father having broken down. Accordingly, Mr Justice Cobb allowed the appeal and set aside the adoption order.
Obviously, both the mother and the step-father could have been punished for their lies. However, the father made it clear that he did not want this to happen, and Mr Justice Cobb therefore took no action against them.
He did however, make a parental responsibility order in favour of the father, along with an order that the father should have regular weekend staying contact with J (both orders being made by consent).
You can read the full judgment here.