NI: High Court to hear adoption revocation appeal on merits
The Northern Ireland High Court of Justice Family Division has determined that it may hear an appeal against a decision not to revoke a freeing order on its merits, finding that such an approach is in line with a European Convention on Human Rights compatible interpretation of the Adoption (Northern Ireland) Order 1987.
The case concerned two children, aged 8 and 7, for whom a Trust had obtained care orders in 2011. The children had been placed with prospective adopters in July 2012, and in February 2013 freeing orders were made, which the mother did not consent to but did not oppose in substance.
Issues arose between the prospective adopters and the Trust about the extent of support that would be required by the family in light of the needs of the children, and no adoption order was made.
In May 2015 the Recorder had been asked by the mother of two children to exercise his powers under Article 20 of the Adoption (Northern Ireland) Order 1987 to revoke freeing orders in respect of the children.
The Article allows for this to be done if more than 12 months have passed since the order freeing children for adoption has been made, and the children have neither been adopted, nor have their home with a person with whom they have been placed for adoption.
The Recorder had dismissed the application, because the children had been placed with a couple for adoption for some time, and he therefore did not have jurisdiction.
In September 2015 adoption applications were lodged by the prospective adopters, which were put on hold pending the outcome of the appeal.
The parties to the case agreed that the Court should interpret Article 20 so as to ensure that it does not have the effect of contravening Article 8(2) ECHR and that if it did so it would have jurisdiction to hear the application to revoke the freeing orders on its merits.
The Court observed that the most important (but not the only) consideration for the Court was the welfare of the children, as stated in Article 9 of the 1987 Order.
It also observed that under Article 13, children should live with their prospective adopters for some time, and that under Article 19, a child freed for adoption without parental agreement is the responsibility of the adoption agency, bringing to an end the rights and responsibilities of the birth parents.
The Court agreed with the parties that the application to discharge the freeing orders should be heard on their merits, specifically because no application for adoption orders had been made more than two years after the freeing orders were made and nearly three years after the children had been placed with the prospective adopters.
It identified a problem with Article 20(1), in that it in a rare case such as the present it could prevent a revocation application indefinitely, even if the child had not been adopted provided that the child has been placed for adoption.
It was felt that this could not be right: if there has been no adoption after a period of time it must be appropriate to allow a birth parent to apply to revoke the freeing order. To do otherwise would be to breach the Article 8(2) rights of the parent.
The difficult question was how to read Article 8(2) into Article 20.
The Court noted that it was relevant that in none of the cases cited by the parties had there been an application by a parent to revoke a freeing order in less than 12 months.
It seemed the the Court that this reflected “the reality that given their seismic repercussions freeing orders are highly unlikely to be made if a birth parent has any real prospect of being able to care for a child within 12 months.”
Therefore it was found to be compatible with Article 8(2) ECHR to read into Article 20(1)(b):
“…a proviso that even if a child has a home with a person with whom he has been placed for adoption a revocation application may be brought at a point 12 months after the freeing order was made. If any such application by a birth parent was unsuccessful, the provisions of Article 20(4) and (5) would limit the opportunity to make any further applications.”
It was emphasised that such applications should continue to be rare and nothing in the judgment should be interpreted as encouraging them other than in unusual circumstances such as those which marked the present case.
The Court also noted that the High Court could exercise its inherent jurisdiction when the rights and interests of children are not sufficiently or properly protected by statute.
The Court stated that the appeal would now proceed to a hearing on merits, at which the Court would consider what would be in the best interests of the two children, and would hear from the prospective adopters, the guardian ad litem, the birth mother and the Trust.
At that stage, the Court would consider what Lord Browne-Wilkinson said in his judgment in Re G 2 FLR 202:
“The extinguishment of all parental rights, parental responsibility and the statutory rights under the 1989 Act is a draconian step. It is a necessary corollary to enable an adoption to take place. But if the proposed adoption giving rise to the freeing order fails to materialise and there is no other proposed adoption pending, it is hard to accept that Parliament can have intended that the parents should continue to be deprived of all these rights leaving the child in an indefinite adoptive limbo.”
“Moreover the inability to revoke the freeing order when the circumstances have changed may give rise to an injustice to the parent and possible harm to the interests of the child. A decision whether or not to dispense with the agreement of a parent has to be taken on the basis of all the circumstances as they exist at the date of the application. Thereafter circumstances may change.”
“..it would to my mind be very strange if, a freeing order having been correctly made to facilitate a pending adoption, it was incapable of being revoked when adoption ceases to be an immediate prospect save in cases where the parent whose rights have been dispensed with under the freeing order is capable of looking after the child and having unfettered control.”
The Court concluded by noting that:
“In this jurisdiction the only issue on which birth parents have made any representations at or near the time of adoption hearings is in relation to contact. Even that has been a recent and limited development in the context of the increased frequency of post adoption contact. Whether and how that remains the position in light of the words of Lord Browne-Wilkinson will form part of the arguments at the hearing on the merits.”