In returning the child to the
birth family following an adoption hearing, has this case 'crossed the
Rubicon?' – and continuing the river
metaphor, as Heraclitus has it – can you cross the same river twice, or does
the act of crossing it change the river?
The case has some remarkably
curious features and frankly involves a set of detailed circumstances which one
would never expect to see arise again
(although one might have said that about the cases of ‘faked birth’ and
baby substitution from the Port Harcourt Fertility Clinic, and there have been
at least three of those).
Care proceedings concluded
with the making of a Care Order and Placement Order. Everyone in the case had
proceeded on the basis that the man mother named as the child’s father being
the father. Mother had said he was the
father, and he himself said he was the father. Alarm bells rang, though perhaps
not loudly enough, at the physical evidence. The mother was white, the putative
father was white, the baby seemed to the naked eye to be black. The father’s
account, that he was Burmese and all Burmese babies begin with very dark skin
and it whitens over time, is not something that holds up in retrospect.
The child was placed with
prospective adopters, who in due course made their application. However, the
true birth father came forward (I say
‘came forward’ but a better description was that his family were shoving him
forcefully towards facing up to his responsibilities). He was not a suitable
carer, but his sister was.
At the outset of the
contested adoption hearing before Holman J, it was common ground that the
child’s aunt was a suitable carer, able to meet the child’s needs and that if
her existence had been known at the time of the final hearing, the child would
have been placed with her. Also, everyone accepted that the prospective
adopters had done a good job and were good carers and able to meet the child’s
Ultimately, the question was
whether this child, who had been placed with these carers aged 7 months and was
20 months old at the time of the hearing, should remain with his prospective
adopters or be moved to the care of the aunt.
Put even more simply, was
blood thicker than water?
Holman J had said at the
outset that this had been a harrowing case with issues that were deeply painful
for all concerned, but towards the end of the judgment, he indicated that the
central issues for him were not finely balanced but pointed strongly in one
direction – that the child should be placed within the birth family.
This, then, is the first
successful contested adoption hearing, in which the challenge resulted in a
move of the child and placement back within the birth family. It demonstrates
that the remedy devised by Parliament is not merely illusory, but that there
will be circumstances in which an opposition can be successful.
The question for the future,
more difficult to predict, is whether this case will be held up as a benchmark
for a successful opposition based on its very narrow facts, or whether that
benchmarking will be on the core principles.
If the very narrow facts,
then one is looking at:
- There was a
mistake over paternity
- The true paternal
family were not identified and assessed
- The true paternal
family are blameless in this
- They came forward
at the first opportunity
- In retrospect,
this mistake ought to have been prevented by professionals/the court
- There is a carer
within the birth family who definitively can meet the child’s needs.
But on the broader facts, one
might be looking at:
- There is someone
within the birth family who can offer the child a home and they were not
considered within the care proceedings
- Or even, there is
someone within the birth family who can NOW offer the child a home that is good
Some vital practice issues
emerge. Care would need to be taken in
cases where a DNA test is not taken because the mother assures everyone that 'X
is the father' and X concurs. There is a risk there that the story changes much
later on, and that if X is not the real father the door is opened to a
challenge to any adoption application in the future.
What of the 'Auntie Beryl'
scenario, where a family member comes forward late in the day in care
proceedings and for 'the child’s timescale’ the Court decides not to assess
her? Well, here is the route-map for a
challenge later down the line.
It will be interesting to
see, in two years time, whether Holman J’s decision stands alone as the sole
example that the s 47 protections are meaningful and not illusory, or
whether it will be joined with a raft of other reported cases and authorities
that help us divine to what extent blood is thicker than water in adoption
Will it be rare, like those who have followed in
Neil Armstrong’s footsteps and walked on the moon, or remarkable but not unique
like those who have followed Sir Edmund Hillary up Mount
Andrew Pack is the winner of the 2014 Family Law Commentator of the Year award.The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.