Re S (Placement Order: Revocation): CA 7 Oct 2008

The circuit judge had been wrong to hold that a child placed with foster parents who were actively considering whether to apply to adopt him had been placed with them for adoption. Thorpe LJ said clearly that a child could not be said to be placed with the foster carers for adoption until the local authority had approved the match of the child with them and had resolved to leave him with them in their fresh capacity as prospective adopters.

Thorpe LJ
[2008] EWCA Civ 1333, [2009] 1 FLR 503, [2009] PTSR CS9, [2009] Fam Law 100
Bailii
England and Wales
Cited by:
CitedCoventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .

Lists of cited by and citing cases may be incomplete.

Children, Adoption

Updated: 30 November 2021; Ref: scu.341650

Pla and Puncernau v Andorra: ECHR 8 Aug 2011

Execution – The court was asked to interpret a testamentary provision and as to the right of an adopted son to inherit from his grandmother under her will.
When a child is adopted under a full adoption procedure, the child is in the same legal position as a biological child of his or her parents in all respects, including property rights. Any interpretation of a will should endeavour to ascertain the testator’s intention without overlooking the importance of interpreting the testamentary provision in compliance with domestic law and the Convention. In this case the applicant had been discriminated against when the High Court in Andorra had interpreted the testamentary provision of the grandmother’s will as including only the biological sons (violation of Article 14 read in conjunction with Article 8 of the Convention).

Execution of the judgment
[2011] ECHR 1575, 69498/01
Bailii
European Convention on Human Rights 8 14
Human Rights
Citing:
JudgmentPla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption, Wills and Probate

Updated: 28 November 2021; Ref: scu.519437

Sookhan v The Childrens Authority of Trinidad and Tobago: PC 7 Oct 2021

(Trinidad and Tobago) Application by S for leave to apply for judicial review in respect of either a failure by the Children’s Authority of Trinidad and Tobago to consider or alternatively a positive decision of the appellant not to consider, the respondent’s application to be placed on the list of suitable persons for the adoption of children.

Lord Briggs,
Lady Arden ,
Lord Stephens
[2021] UKPC 29
Bailii
England and Wales

Adoption

Updated: 27 November 2021; Ref: scu.670114

YC v The United Kingdom: ECHR 13 Mar 2012

The court spelt out the stark effects of the proportionality requirement in its application to a determination that a child should be adopted.

4547/10 – Chamber Judgment, [2012] ECHR 3005
Bailii
European Convention on Human Rights 8
Citing:
CitedJohansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of the . .
CitedKearns v France ECHR 10-Jan-2008
The claimant, whilst pregnant, travelled from Ireland to, and gave birth in France, to use their system of anonymous registration. She wanted the child adopted, and, following the birth, the system whereby she could request the return of the child . .
Statement of FactsYC v The United Kingdom ECHR 21-Jul-2010
Statement of facts . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption

Updated: 20 November 2021; Ref: scu.515354

Re B-S (Children): CA 14 Jun 2013

Application for leave to appeal – mother had been refused consent to be heard to resist adoption application – leave granted

McFarlane LJ
[2013] EWCA Civ 813
Bailii
England and Wales
Cited by:
LeaveRe B-S (Children) CA 17-Sep-2013
The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then the . .

Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 19 November 2021; Ref: scu.515002

IS v Germany: ECHR 5 Jun 2014

IS_germanyECHR14-0

ECHR Article 8-1
Respect for private life
Refusal of contact and right to information for biological mother of children given up for adoption: no violation
Facts – German law permits ‘open’ and ‘half-open’ forms of adoption. Under such an agreement there can be contact of a greater or lesser degree of intensity – either direct or mediated by the Youth Office – between the adoptive parents, the child and the biological parents. Such forms of adoption are, however, dependent on the consent of the adoptive parents.
In the present case, the applicant, a married mother, became pregnant with twins after an extra-marital affair. Her husband moved out of the matrimonial home saying he would only move back if she gave away the twins. About a month after the birth, in view of her difficult family and financial situation, the applicant, who was being treated for depression, consented to the twins’ placement in provisional care with a view to later adoption. She subsequently met the future adoptive parents and some six months after the birth formally consented to the adoption of the children by deed signed before a notary in which she acknowledged the legal consequences of the adoption, in particular the fact that her kinship and all her rights and duties in respect of the twins would cease. Shortly afterwards she made an oral agreement with the adoptive parents that they would send her a short report with photographs of the children once a year through the Youth Office. The question whether the agreement laid down any rules regarding regular meetings between the children and the applicant is disputed. After a failed attempt to obtain an order to declare her consent to the adoption void, the applicant made an application for contact. This was dismissed by the domestic courts on the grounds that she did not belong to the circle of people who had lived in ‘domestic community’ with the child for a long period of time, as required by the legislation. As to her claim for the right to receive information about the children, this was strictly limited to the parents and the applicant had ceased to be a parent at the moment of adoption.
In her application to the European Court, the applicant complained that the decisions of the domestic courts denying her the right to have contact with and receive information about the twins had violated her right to respect for her family and private life under Article 8 of the Convention.
Law – Article 8: Although the existing family relationship had been intentionally severed by the applicant, the determination of remaining or newly established rights between the applicant, the adoptive parents and her biological children, even if they fell outside the scope of ‘family life’, concerned an important part of the applicant’s identity as a biological mother and thus her ‘private life’ within the meaning of Article 8 – 1.
The impugned decisions were ‘in accordance with the law’ and pursued the legitimate aim of protecting the rights and freedoms of others.
The oral arrangements between the applicant and the adoptive parents were concluded after the applicant had been informed by an independent lawyer of the legal consequences of her intention to declare her irrevocable consent to the adoption. The requirement for formal legal advice by an independent lawyer was an essential safeguard against misunderstandings of the nature of the deed, which could not be revoked or have conditions attached to it later. This clearly indicated that the applicant understood the ‘arrangements’ as a declaration of intent in the context of a prospective voluntary setting aside of anonymity by the adoptive parents. This was also made clear by the specific circumstances of the conclusion of the agreement which was only made orally and did not contain any details on the right to information and the right to contact.
The adoption process, seen as a whole and including the court proceedings, had been fair and ensured the requisite protection of the applicant’s rights. The legal rights of the applicant with regard to her biological children had been severed as a result of acts she had taken in full knowledge of the legal and factual consequences. In view of this, the decision of the German authorities to attach greater weight to the privacy and family interests of the adoptive family was proportionate. As the children were adopted as newborns and were still very young at the time of the domestic proceedings, the interests of the adoptive family to enjoy and build a family life together with the children undisturbed by attempts by the children’s biological parent to re-establish contact prevailed.
Conclusion: no violation (five votes to two).

31021/08 – Legal Summary, [2014] ECHR 810
Bailii
European Convention on Human Rights 8

Human Rights, Family, Adoption

Updated: 12 November 2021; Ref: scu.535171

Marckx v Belgium: ECHR 13 Jun 1979

Recognition of illegitimate children

The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. A recognised ‘illegitimate’ child’s rights of inheritance on intestacy are less than those of a ‘legitimate’ child.
Held: The Belgian system infringed the right to private and family life by reducing inheritance rights for illegitimate children. The object of Article 8 is to protect the individual against arbitrary interference by the public authorities. Nevertheless, it does not merely compel the State to abstain from such interference: in addition to this primarily negative undertaking, there may be positive obligations inherent in an effective ‘respect’ for family life. Where there are no property rights which pre-exist the interference complained of, the article is not engaged. Family life ‘includes at least the ties between near relatives, for instance, those between grandparents and grandchildren, since such relatives play a considerable part in family life.’ Article 8 makes no distinction between the legitimate and illegitimate family.
Sir Gerald Fitzmaurice described the scope of article 8: ‘The emphasis is on the person’s home as a place where he is entitled to be free from arbitrary interference by the public authorities’

Sir Gerald Fitzmaurice
6833/74, (1979) 2 EHRR 330, [1979] ECHR 2
Bailii
European Convention on Human Rights 1P 8 A14
Human Rights
Citing:
FollowedHandyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedGhaidan v Godin-Mendoza CA 5-Nov-2002
The applicant sought to succeed to the tenancy of his deceased homosexual partner as his partner rather than as a member of his family.
Held: A court is bound by any decision within the normal hierachy of domestic authority as to the meaning . .
DistinguishedInze v Austria ECHR 28-Oct-1987
Art 14 was engaged in respect of discrimination over future interests despite Marckx. The case turned on what singular provisions of Austrian inheritance law, whereby the illegitimate claimant had some, but incomplete, rights on his mother’s . .
CitedHollins v Russell etc CA 22-May-2003
Six appeals concerned a number of aspects of the new Conditional Fee Agreement.
Held: It should be normal for a CFA, redacted as necessary, to be disclosed for costs proceedings where a success fee is claimed. If a party seeks to rely on the . .
CitedAHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
CitedCarson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedLondon Borough of Harrow v Qazi HL 31-Jul-2003
The applicant had held a joint tenancy of the respondent. His partner gave notice and left, and the property was taken into possession. The claimant claimed restoration of his tenancy saying the order did not respect his right to a private life and . .
CitedM v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
CitedSingh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .
CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
CitedCountryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
CitedSmith v Secretary of State for Work and Pensions and Another HL 12-Jul-2006
The House considered whether under the 1992 Regulations a self-employed parent could use for his child support calculation his net earnings as declared to the Revenue, which would allow deduction of capital and other allowances properly claimed . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedEM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
CitedRe E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
CitedPearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
CitedPearce v Mayfield School CA 31-Jul-2001
The claimant teacher was a lesbian. She complained that her school in failed to protect her against abuse from pupils for her lesbianism. She appealed against a decision that the acts of the pupils did not amount to discrimination, and that the . .
CitedL, Regina (On the Application of) v Commissioner of Police of the Metropolis SC 29-Oct-2009
Rebalancing of Enhanced Disclosure Requirements
The Court was asked as to the practice of supplying enhanced criminal record certificates under the 1997 Act. It was said that the release of reports of suspicions was a disproportionate interference in the claimants article 8 rights to a private . .
CitedIn re A (A Minor) FD 8-Jul-2011
An application was made in care proceedings for an order restricting publication of information about the family after the deaths of two siblings of the child subject to the application. The Sun and a local newspaper had already published stories . .
CitedA v P (Surrogacy: Parental Order: Death of Applicant) FD 8-Jul-2011
M applied for a parental order under the 2008 Act. The child had been born through a surrogacy arrangement in India, which was lawful there, but would have been unlawful here. The clinic could not guarantee a biological relationship with the child. . .
CitedAXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
CitedSalvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedT and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
CitedHand and Another v George ChD 17-Mar-2017
Adopted grandchildren entitled to succession
The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not . .
CitedBrewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
CitedMcCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Children, Adoption, Wills and Probate

Leading Case

Updated: 11 November 2021; Ref: scu.164889

X (Adopted Child: Access To Court File): FC 9 Sep 2014

The applicant’s father had been adopted. Both he and the adopting parents had since died. The applicant now sought disclosure of the records to reveal her the court record of her father’s adoption order.
Held: The order should be made.

Sir James Munby P FD
[2014] EWFC 33
Bailii, Jud
Adoption and Children Act 2002 79(4)
England and Wales
Citing:
CitedRe H (Adoption: Disclosure of Information ) 1995
An application was made by the sister of an adopted child for disclosure of the records held in order to allow her to make contact and to warn her of the fact that she might have an inherited genetic disease.
Held: The jurisdiction to grant . .
CitedD v Registrar General 1997
The court considered the procedure to be followed in applications for disclosure to other family members of information held by the Registrar to allow them to contact the adopted child. . .
CitedFL v Registrar General FD 24-May-2010
The claimant sought disclosure of information held by the respondent as to the identities of her pre-adoptive natural parents. . .

Lists of cited by and citing cases may be incomplete.

Adoption, Information, Administrative

Updated: 11 November 2021; Ref: scu.536476

Oxfordshire County Council v X and Others: CA 27 May 2010

The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices annually.
Held: The order was discharged. The judge had erred in law in reaching his decision, which was ex tempore, and the appeal court was free to look at it again.
Lord Neuberger MR said: ‘it will not usually be in the best interests of an adopted child to impose on her adoptive parents an obligation in relation to contact which they are unwilling to agree to. Indeed, the imposition of such an obligation is extremely unusual.’ The judge had not made reference to this in his judgment.
The judge’s task was to apply the 1989 Act checklist against the background of the jurisprudence. The question for him was not whether provision of photographs would create or increase the risk of the natural parents tracing the child. The essential question was whether the adoptive parents’ fear of such a risk was unreasonable in the sense that it had no reasonable basis.
‘The judge was required to consider what was in the best interests of the child, as the paramount consideration, in accordance with section 1 of the 1989 Act. It is beyond argument that the welfare of so young a child in the early stages of her adoption depended upon the stability and security of her new parents, the adoptive parents. To undermine that stability by fuelling or failing to heed their fears that their daughter’s natural parents might seek to trace her is to damage her welfare.’

Lord Neuberger of Abbotsbury MR, Moses LJ, Munby LJ
[2010] EWCA Civ 581, [2010] 2 FCR 355, [2010] Fam Law 790
Bailii
Adoption and Children Act 2002 46(2)(a) 67(1), Children Act 1989 193)
England and Wales
Citing:
CitedRe C (A Minor) (Adoption Order: Conditions) HL 1988
The House considered the question of conditions to be applied to any continued contact with a child after adoption. Lord Ackner said: ‘The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but . .
CitedRe J (Adoption: Non-Patrial) CA 1998
The court considered an adoption in Pakistan which was valid in Pakistan but would not be recognised here. The natural father and the adoptive father were from the same family. The adoptive parents were unable to have a children of their own, and . .
CitedG v G (Minors: Custody appeal) CA 1985
A court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case: ‘What this court should seek to do is to . .
CitedPiglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
CitedIn Re T (Minors) (Adopted Children: Contact) CA 8-Aug-1995
A half-sister had been assured that when her half-sister was adopted she would be given annual reports as to her progress. No report was provided. When she enquired and complained, she was told that the adopters had changed their minds and that it . .
CitedIn Re T (A Minor) (Contact Order); In Re T (Adoption: Contact) CA 13-Jan-1995
A contact order which was not strictly necessary should not be made in adoption proceedings. Arrangements for contact should not be ‘imposed’ upon the adoptive parents but should be ‘left to their good sense so that they could be trusted to do what . .

Lists of cited by and citing cases may be incomplete.

Adoption

Leading Case

Updated: 09 November 2021; Ref: scu.416165

In re D (An Infant) (Adoption: Parent’s Consent): HL 1977

The father opposed adoption of a child by the mother and her new husband. The House was asked whether his opposition was unreasonable.
Held: Lord Wilberforce said: ‘What, in my understanding, is required is for the court to ask whether the decision, actually made by the father in his individual circumstances, is, by an objective standard, reasonable or unreasonable. This involves considering how a father in the circumstances of the actual father, but (hypothetically) endowed with a mind and temperament capable of making reasonable decisions, would approach a complex question involving a judgment as to the present and as to the future and the probable impact of these upon a child.’

Lord Wilberforce
[1977] AC 602
England and Wales
Cited by:
CitedRe C (a Minor) (Adoption: Parental Agreement: Contact) CA 1993
Where adoption is to be considered against the will of the parent, the court should recognise when asking whether the opposition was unreasonable that the test is objective and supposes that this person is endowed with a mind and temperament capable . .
CitedDown Lisburn Health and Social Services Trust and Another v H and Another HL 12-Jul-2006
The House considered when adoption law would allow an adoption without the consent of the birth parent where there had been some continuing contact between that parent and the child.
Held: (Baroness Hale dissenting) The appeal against the . .

Lists of cited by and citing cases may be incomplete.

Adoption

Leading Case

Updated: 09 November 2021; Ref: scu.243093

Hand and Another v George: ChD 17 Mar 2017

Adopted grandchildren entitled to succession

The court was asked whether the adopted children whose adopting father, the son of the testator, were grandchildren of the testator for the purposes of his will.
Held: The claim succeeded. The defendants, the other beneficiaries were not entitled to inherit the part of their father’s estate that derived from the will. The court had to respect the claimants’ Convention right under article 14 in conjunction with article 8 of the Convention not to be discriminated against by the application of a legislative provision which caused the ambiguous reference in the testator’s will to his grandchildren to be construed as excluding them as his adopted grandchildren: ‘to apply the HRA in combination with the wording of the will is not, in my judgment, truly a retrospective application of the HRA. Following the coming into force of the HRA, if the question of whether a beneficiary in the will has children or not arises for consideration, that question must be addressed having regard to the HRA as well as having regard to the wording of the will. Under domestic legislation, the answer is that the adopted children are not included. But that must now be read in a way which is compliant with the rights that adopted children have not to be discriminated against by domestic legislation because of their adopted status.’

Rose J
[2017] EWHC 533 (Ch), [2017] WLR(D) 198, [2017] 3 WLR 559, [2017] 2 FLR 1565, [2017] WTLR 495, [2017] Ch 449
Bailii, WLRD
European Convention of Human Rights 8 14, Adoption of Children Act 1926, Adoption of Children Act 1949, Adoption Act 1976, Adoption and Children Act 2002
England and Wales
Citing:
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedLarkos v Cyprus ECHR 18-Feb-1999
The applicant had rented a house from the government, but was ordered to vacate the house following revocation of his tenancy. Because he had been a tenant of the government he was not, under domestic law, entitled to the security which he would . .
CitedMazurek v France ECHR 1-Feb-2000
ECHR Judgment (Merits and just satisfaction) Violation of Art. 14+P1-1; Not necessary to examine Art. 14+8; Pecuniary damage – financial award; Non-pecuniary damage – financial award; Costs and expenses partial . .
CitedWilson v First County Trust (2) CA 2-May-2001
Rules under the Act which precluded a party from any recovery for non-compliance with its provisions were disproportionate, and a denial of the human right of the lender to a fair trial, and a declaration of incompatibility was made. A pawnbroker’s . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedPla and Puncernau v Andorra ECHR 13-Jul-2004
A will made by a widow in 1939, left certain property to her son Francesc-Xavier, as tenant for life, with a stipulation that he was to leave this inheritance to a son or grandson of a lawful and canonical marriage, failing which the estate was to . .
CitedFabris v France [GC] ECHR 7-Feb-2013
ECHR (Grand Chamber) Article 14
Discrimination
Difference in treatment of legitimate and illegitimate children for succession purposes: violation
Facts – The applicant was born in 1943 of a . .
CitedSecretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ explained the presumption against interpretation of a statute to have retrospective effect: ‘the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedHorsham Properties Group Ltd v Clark and Another ChD 8-Oct-2008
The court was asked whether section 101 of the 1925 Act infringes the Convention rights of residential mortgagors by allowing mortgagees to overreach the mortgagor by selling the property out of court, without first obtaining a court order either . .
CitedHorncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
CitedRe Erskine 1948 Trust ChD 29-Mar-2012
The trust was created in 1948, and provided gifts over, which had now failed. The court considered the construction of the term ‘stautory next of kin’. The possible beneficiaries claimed through being adopted, arguing that at the date of the last . .
CitedAbbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .

Lists of cited by and citing cases may be incomplete.

Wills and Probate, Adoption, Human Rights

Updated: 01 November 2021; Ref: scu.581328

Warwickshire County Council v M and others: CA 1 Nov 2007

The judge had granted the mother leave to apply for revocation of placement orders. The authority appealed. The mother argued that once a change of circumstances was shown, the court was obliged to give leave to apply.
Held: The judge was not so obliged, but instead had a discretion whether to grant leave to apply. In exercising that discretion, for some reason unknown, parliament had provided that the child’s interests were not paramount. Nevertheless, because of his mistake the judge had not investigated whether to grant leave. The Court now did so, and allowing the authority’s appeal, refused the mother leave.
Wilson LJ said: ‘The judge went on to observe, however, that, were an application for leave to have been issued but not to have been disposed of, it would normally be good practice for a local authority either to agree not to place the child until its disposal or at least to agree to give notice, say of 14 days, to the applicant of any proposed placement. In this regard I also agree with him. Given such notice, the applicant might perhaps be able either to take steps to challenge the lawfulness of the decision to place at that juncture or, probably more easily, to seek an expedited hearing of the application for leave, from which might flow, in the fine, developing tradition of collaboration between local authorities and courts, a short further agreed moratorium on placement until the hearing.’

Thorpe LJ, Dyson LJ, Wilson LJ
[2007] EWCA Civ 1084, Times 21-Dec-2007, [2008] 1 WLR 991, [2008] 1 FLR 1093, [2007] WLR (D) 286
Bailii
Adoption and Children Act 2002 24
England and Wales
Cited by:
CitedIn re F (A Child) (Placement Order); C v East Sussex County Council (Adoption) CA 1-May-2008
The father sought to revoke a freeing order. He said that the social workers had conspired to exclude him from the process. The child was born of a casual relationship, and at first he was unaware of the proceedings. On learning of them he sought to . .
CitedIn re G (A Child) (Special guardianship order: Application to discharge) CA 10-Feb-2010
The mother had failed in her application to have set aside a special guardianship order made in favour of the child’s grandmother. The judge had held that the change in her circumstances was not significant.
Held: Her appeal succeeded. The . .
CitedRe A (A Minor), Re TL v Coventry City Council; CC v A, by her Children’s Guardian CA 21-Dec-2007
The foster mother of a baby promptly indicated a wish to adopt her. Following four months of assessment Coventry informed her that, for reasons which she wished to challenge, her adoption of the baby would be unsuitable. Three days prior to so . .

Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 01 November 2021; Ref: scu.260143

Soderback v Sweden: ECHR 28 Oct 1998

ECHR Sweden – adoption of a child granted to mother’s husband, without the consent of the natural father (Chapter 4, section 6, of the Parental Code)
ARTICLE 8 OF THE CONVENTION
Not disputed that there existed certain ties between the applicant father and his daughter M. – in the light of this, and bearing in mind that the parties’ arguments centred on issue of compliance with Article 8, the Court proposed to proceed on the basis that it was applicable – on this assumption, the adoption order amounted to an interference with his right to respect for family life under Article 8-1.
Not doubted that adoption ‘in accordance with the law’ and pursued legitimate aim of protecting child’s rights and freedoms – it remained to be considered whether it was ‘necessary in a democratic society’.
While adoption in the present case, like the contested measures in the Johansen v. Norway case, had the legal effect of totally depriving the applicant of family life with his daughter, the context differed significantly – accordingly, it was inappropriate in the present case to apply the approach employed in the Johansen judgment.
Furthermore, during the period under consideration, the contacts between the applicant and the child had been infrequent and limited in character and when the adoption was granted he had not seen her for quite some time.
Moreover, when the adoption was granted by the District Court in December 1989, de facto family ties had existed between the mother and the adoptive father for five and a half years, until they married in January 1989, and between him and M. for six and a half years – the adoption had consolidated and formalised those ties.
Against this background, the decision fell within the margin of appreciation – given the aims sought to be achieved by allowing the adoption to go ahead, it could not be said that adverse effects on applicant’s relations with the child had been disproportionate.
Conclusion: no violation (unanimously).

24484/94, [1998] ECHR 103, [1999] 1 FLR 250, [1999] Fam LR 104, [1999] Fam Law 87, (2000) 29 EHRR 95, [1998] HRCD 958
Worldlii, Bailii
European Convention on Human Rights 8
Human Rights
Cited by:
ApprovedIn re P (A Child) CA 15-Aug-2014
The court considered the proper approach to a proposed step-parent adoption. The step-father now appealed against refusal of an order.
Held: The application succeeded. When the adoption application was considered, the court had to be satisfied . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption

Leading Case

Updated: 01 November 2021; Ref: scu.165689

Re D (Minors) (Adoption Reports: Confidentiality): HL 1 Sep 1995

The House considered whether it was right for a tribunal to see and rely upon papers not disclosed to the parties. Lord Mustill said: ‘a first principle of fairness that each party to a judicial process shall have an opportunity to answer by evidence and argument any adverse material which the tribunal may take into account when forming its opinion. This principle is lame if the party does not know the substance of what is said against him (or her), for what he does not know he cannot answer.’ and ‘It is a fundamental principle of fairness that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party.’

Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead
[1996] AC 593, [1995] UKHL 17, [1996] 1 FCR 205, [1995] 3 WLR 483, [1995] 4 All ER 385, [1995] 2 FLR 687, [1996] Fam Law 8
Bailii
England and Wales
Citing:
Appeal fromIn Re D (Minors) (Adoption Reports: Confidentiality) CA 8-Dec-1994
A guardian ad litem’s promise of confidentiality to a child can broken by a court, and the guardian must be careful in making such promises. . .

Cited by:
CitedRoberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
CitedChief Constable and Another v YK and Others FD 6-Oct-2010
cc_ykFD10
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
CitedIn re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .

Lists of cited by and citing cases may be incomplete.

Adoption, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.228360

In re F (A Child) (Placement Order); C v East Sussex County Council (Adoption): CA 1 May 2008

The father sought to revoke a freeing order. He said that the social workers had conspired to exclude him from the process. The child was born of a casual relationship, and at first he was unaware of the proceedings. On learning of them he sought to revoke the placement order. Aware that they were doing so on the eve of the hearing of the father’s application for leave to apply to revoke the placement order, East Sussex CC exercised their power to place the child for adoption and thereby defeated his application by virtue of s.24(2) of the Act of 2002.
Held: His appeal failed. However, the county court would have had jurisdiction to restrain the placement by injunction. Wilson J said: ‘I consider that jurisdiction is conferred upon the county court by s 38 of the County Courts Act 1984 (and upon the High Court by s 37 of the Supreme Court Act 1981) to enjoin a local authority from placing a child for adoption even if authorised to do so by a subsisting placement order; that such an injunction can be sought, no doubt on a very temporary basis, even without notice to the local authority; and that it can be sought at any time after issue of the application for leave or even prior to its issue provided that an undertaking is given to issue it immediately.’ and ‘if this kind of disgraceful conduct is repeated in another case, the likelihood is that the agency’s decision to place the child would be the subject of an application for judicial review. Speaking for myself, I can see no reason why the Administrative Court should not declare unlawful a decision such as that taken by the agency in the instant case. If it did so, it would quash the decision to place the child for adoption. It could then give directions for the hearing of the father’s application under s 24(2) in the county court, and restrain the agency, by injunction, from placing the child for adoption pending the determination of that application.’
Thorpe LJ (dissenting) would allow the appeal said that the authority had been determined to achieve its aims ‘by means more foul than fair.’ The 2002 Act should be read so as to comply with the Human Rights of the father, which would require his application for leave to be joined in the proceedings to serve.
Wall LJ said that he words of the section were clear and precise and it was not possible to read them in such a way as to allow the suspension of proceedings while the father applied for leave to be joined. Nevertheless: ‘speaking for myself, the behaviour of the agency in the instant case is about the worst I have ever encountered in a career now spanning nearly 40 years. ‘

Thorpe, Wall, Wilson LJJ
[2008] EWCA Civ 439, Times 09-May-2008, [2008] 2 FLR 550, [2008] Fam Law 715, [2008] 2 FCR 93
Bailii
Adoption and Children Act 2002 24(5), Human Rights Act 1998 3
England and Wales
Citing:
CitedAshingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
CitedRegina v Derbyshire County Council, ex parte T CA 1990
The court upheld the decision of Swinton Thomas J to grant certiorari to quash the decision of a local authority to move a child to prospective adopters without informing the child’s parents and in an attempt to prevent them making an application to . .
CitedIn Re B (Minors) (Contact) CA 3-Feb-1993
The Judge had a discretion to look again at the natural mother’s case before making an adoption order. In order to minimise delay in any case, and to facilitate efficient decision-making, the court could, exercising its wide judicial discretion, . .
CitedNorfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
CitedRe L and H (Residential Assessment); CT and Another v Bristol City Council and others CA 14-Mar-2007
Application for leave to appeal against refusal to order residential assessment under section 38(6). ECHR Articles 6 and 8, and the underlying philosophy of the 1989 Act, required that a case be fully investigated and that all the relevant evidence . .
CitedSeal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
CitedRe F and H (Children) CA 24-Aug-2007
The father sought leave to appeal a care order and an order releasing his child for adoption.
Held: The court applied Re W as to the extent of the duty of the appellate court in such matters. The appeal would stand no reasonable prospect of . .
CitedWarwickshire County Council v M and others CA 1-Nov-2007
The judge had granted the mother leave to apply for revocation of placement orders. The authority appealed. The mother argued that once a change of circumstances was shown, the court was obliged to give leave to apply.
Held: The judge was not . .
CitedRegina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .

Cited by:
CitedCoventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .

Lists of cited by and citing cases may be incomplete.

Adoption, Local Government, Human Rights

Updated: 01 November 2021; Ref: scu.267387

X and Y v United Kingdom: ECHR 1978

(Commission) A boy of 14, X’s nephew, was adopted under Indian law by two Sikhs, who were UK citizens. He was 14 years when adopted. He had been denied entry clearance into the UK on the grounds that, even if the adoption was valid according to Indian law, there had been no genuine transfer of parental responsibility to X, since Y’s natural parents were able to care for him. The Commission rejected the applicants’ complaint under article 8 because: ‘This adoption is neither recognised nor eligible for recognition in English law. The first applicant has apparently since made financial contributions towards the upkeep of the second applicant. However, throughout his life, both before and after the adoption, he has lived with his natural parents in India. It appears that they have been and are fully capable of supporting him. In these circumstances the applicants have not, in the Commission’s opinion, established a relationship between them which amounted at any material time to ‘family life’ within the meaning of Article 8, notwithstanding their blood relationship and any legal relationship created under Indian law by the adoption. The Commission does not consider that the second applicant’s relationship with the first applicant is at all comparable to that of a new-born child with its parents, where ‘family life’ might be held to exist from the moment of birth.’

(1978) 12 DR 32, [1977] ECHR 3
Bailii
European Convention on Human Rights 8
Human Rights
Cited by:
CitedSingh v Entry Clearance Officer New Delhi CA 30-Jul-2004
The applicant, an 8 year old boy, became part of his Indian family who lived in England, through an adoption recognised in Indian Law, but not in English Law. Though the adoption was genuine, his family ties had not been broken in India. The family . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Adoption

Leading Case

Updated: 01 November 2021; Ref: scu.200258

Webster (the Parents) v Norfolk County Council and others: CA 11 Feb 2009

Four brothers and sisters had been adopted after the parents had been found to have abused them. The parents now had expert evidence that the injuries may have been the result of scurvy, and sought leave to appeal.
Held: Leave was refused. Cases involving the reversal of adoptions in the past had been brought far sooner after the event than this, and arose from procedural errors resulting in an unfairness. Here, though expert opinion now pointed in a different direction, the decisions had been made honestly and responsibly. It was no longer possible to reverse the decisions.

[2009] EWCA Civ 59
Bailii
European Convention on Human Rights 8, Adoption and Children Act 2002 67(1)
England and Wales
Citing:
CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
CitedIn Re F (R) (An Infant) 1970
An adoption order was set aside for an irregularity. . .
CitedCarson and Others v The United Kingdom ECHR 4-Nov-2008
(Grand Chamber) Pensioners who had moved abroad complained that they had been excluded from the index-linked uprating of pensions given to pensioners living in England.
Held: This was not an infringement of their human rights. Differences in . .
CitedNorfolk County Council v The Parents and BC (By her Child’s Guardian) FD 29-Jun-2007
. .
CitedCases of Pini And Bertani And Manera And Atripaldi v Romania ECHR 22-Jun-2004
The making of an adoption order was sufficient to establish an Article 8 right to respect for family life notwithstanding the fact that the children had never moved to live with the adopters. Protection of the right to family life pre-supposes the . .
CitedRe RA (Minors) 1974
An adoption order was set aside for a procedural irregularity. . .
CitedAiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
CitedRe Webster (A Minor) FD 23-Feb-2007
. .
CitedRe H (Freeing Orders: Publicity) CA 2005
Wall LJ said: ‘Cases involving children are currently heard in private in order to protect the anonymity of the children concerned. However, the exclusion of the public from family courts, and the lack of knowledge about what happens in them, easily . .
CitedNorfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
CitedRe S (Minors)(Care Order: Appeal); Dyfed County Council v S, Re S (Discharge of Care Order) CA 6-Sep-1995
Discharge of care order is the appropriate procedure not an appeal after very long time. The court considered its approach in admitting new evidence on appeal in family law cases: ‘The willingness of the family jurisdiction to relax the ordinary . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights

Updated: 01 November 2021; Ref: scu.282608

Re B-S (Children): CA 17 Sep 2013

The mother had been refused leave to oppose her child’s adoption. She now appealed.
Held: A court facing such an application faced two questions: Has there been a change in circumstances? If not, that is the end of the matter. If yes, then the question is, should leave to oppose be given? As to that, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. Key is whether the prospects of success are more than just fanciful, whether they have solidity.
The court emphasised the need for the court to evaluate all the options for the child’s future where adoption was proposed, analysing the pros and cons of each in the light of the paramount consideration of the child’s future in the long term.
It would be a waste of time and resources, and would give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. No particular words are needed if the meaning is clear. ‘Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the ‘last resort’ and only permissible if ‘nothing else will do’.’

Lord Dyson MR, Sir James Munby P, Black LJ
[2013] EWCA Civ 1146, [2013] WLR(D) 348, [2014] 1 WLR 563, [2014] 1 FLR 1035, [2013] 3 FCR 481, [2013] Fam Law 1515
Bailii, WLRD
Adoption and Children Act 2002 47(5)
England and Wales
Citing:
LeaveRe B-S (Children) CA 14-Jun-2013
Application for leave to appeal – mother had been refused consent to be heard to resist adoption application – leave granted . .

Cited by:
CitedIn re P (A Child) FD 17-Dec-2013
A local authority applied for a reporting restriction order. The Italian mother when pregnant suffered mental illness. She ceased treatment to protect her unborn child and became psychotic and delusional and was detained in a mental hospital. She . .
CitedRe S (A Child) SC 25-Mar-2015
The Court was asked as to the proper approach to ordering the unsuccessful party to pay the costs of a successful appeal in cases about the care and upbringing of children. It arises in the specific context of a parent’s successful appeal to the . .
CitedHesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .

Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.515281

In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G: HL 18 Jun 2008

The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater commitment to traditional family structures did not however justify the difference. The rules were unlawful discrimination.
Lord Hoffmann said: ‘the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status. For the reasons I have given earlier, I would declare that notwithstanding article 14 of the Order, the appellants are entitled to apply to adopt the child.’
He went on to point out that ‘Convention rights’, as defined in section 1 of the 1998 Act, were ‘domestic and not international rights’, and that the duty of domestic courts under section 2 of that Act was to ‘take into account’, rather than to regard themselves as bound by, decisions of the Strasbourg court, but that there were normally ‘good reasons why we should follow the interpretation adopted in Strasbourg’. However, different ‘considerations apply in cases in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says the question is within the margin of appreciation’. In such cases, ‘it is for the court in the United Kingdom to interpret [the relevant article or articles of the Convention] and to apply the division between the decision-making powers of courts and Parliament in the way which appears appropriate for the United .Kingdom’. He expanded on this by adding that ‘[t]he margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers’.
Baroness Hale said that ‘lack of marital status is as much a ‘status’ for the purpose of article 14 as is the status of marriage itself.’
and ‘it is clear that the doctrine of the ‘margin of appreciation’ as applied in Strasbourg has no application in domestic law. The Strasbourg court will allow a certain freedom of action to member states, which may mean that the same case will be answered differently in different states (or even in different legal systems within the same state). This is particularly so when dealing with questions of justification, whether for interference in one of the qualified rights, or for a difference in treatment under article 14. National authorities are better able than Strasbourg to assess what restrictions are necessary in the democratic societies they serve. So to that extent the judgment must be one for the national authorities.’
Lord Hope said that even in an area of social and economic policy, falls within the constitutional responsibility of the courts: ‘Cases about discrimination in an area of social policy, which is what this case is, will always be appropriate for judicial scrutiny. The constitutional responsibility in this area of our law resides with the courts. The more contentious the issue is, the greater the risk is that some people will be discriminated against in ways that engage their Convention rights. It is for the courts to see that this does not happen. It is with them that the ultimate safeguard against discrimination rests.’
Orse – In re G (Adoption: Unmarried Couple)

Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance
[2008] UKHL 38, Times 23-Jun-2008, [2008] UKHRR 1181, [2008] Fam Law 977, [2008] 2 FCR 366, [2009] 1 AC 173, [2008] NI 310, [2008] 24 BHRC 650, [2008] 2 FLR 1084, [2008] HRLR 37, [2008] 3 WLR 76
Bailii, HL
Adoption (Northern Ireland) Order 1987 (SI 1987/2203(NI 22)) 13, Human Rights Act 1998 1(1), European Convention on Human Rights 14
Northern Ireland
Citing:
CitedVon Lorang v Administrator of Austrian Property 1927
Viscount Haldane said: ‘[T]he marriage gives the husband and wife a new legal position from which flow both rights and obligations with regard to the rest of the public. The status so acquired may vary according to the laws of different . .
CitedJames and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
CitedPM v The United Kingdom ECHR 19-Jul-2005
A father complained that tax deductions which were granted to married fathers but not to unmarried fathers were discriminatory. He had paid maintenance for his daughter, but was not allowed to set the payments off against his income tax in the way . .
CitedCarson, Regina (on the Application of) v Secretary of State for Work and Pensions; Reynolds v Same HL 26-May-2005
One claimant said that as a foreign resident pensioner, she had been excluded from the annual uprating of state retirement pension, and that this was an infringement of her human rights. Another complained at the lower levels of job-seeker’s . .
CitedHooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
CitedFrette v France ECHR 26-Feb-2002
A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article . .
CitedDu Toit and Vos v Minister for Welfare and Population Development 10-Sep-2002
(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint . .
CitedEB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedRegina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedT, Petitioner IHCS 1997
The House discussed the duties of a court in adoption cases: ‘There can be no more fundamental principle in adoption cases than that it is the duty of the court to safeguard and promote the interests of the child. Issues relating to the sexual . .
CitedBellinger v Bellinger HL 10-Apr-2003
Transgendered Male/Female not to marry as Female
The parties had gone through a form of marriage, but Mrs B had previously undergone gender re-assignment surgery. Section 11(c) of the 1973 Act required a marriage to be between a male and a female. It was argued that the section was incompatible . .
CitedBurden and Burden v The United Kingdom ECHR 12-Dec-2006
Sisters,Together always not Discriminated Against
(Grand Chamber) The claimants were sisters who had lived together all their lives and owned property jointly. They complained that the Inheritance Tax regime treated them worse than it would a married couple, and was discriminatory.
Held: . .
CitedBelfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
CitedMarckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
CitedS, Regina (on Application of) v South Yorkshire Police; Regina v Chief Constable of Yorkshire Police ex parte Marper HL 22-Jul-2004
Police Retention of Suspects DNA and Fingerprints
The claimants complained that their fingerprints and DNA records taken on arrest had been retained after discharge before trial, saying the retention of the samples infringed their right to private life.
Held: The parts of DNA used for testing . .
CitedKarner v Austria ECHR 24-Jul-2003
A surviving same-sex partner sought a right of succession to a tenancy (of their previously shared flat). Interveners ‘pointed out that a growing number of national courts in European and other democratic societies require equal treatment of . .
CitedPretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
CitedGhaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
CitedHandyside v The United Kingdom ECHR 7-Dec-1976
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .

Cited by:
CitedAge UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
CitedAxa General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
axaReSCS201
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
CitedJohns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
CitedNicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
CitedMoohan and Another v The Lord Advocate SC 17-Dec-2014
The petitioners, convicted serving prisoners, had sought judicial review of the refusal to allow them to vote in the Scottish Referendum on Independence. The request had been refused in the Outer and Inner Houses.
Held: (Kerr, Wilson JJSC . .
CitedMathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
CitedNicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
CitedGaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
CitedSteinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
CitedSteinfeld and Keidan, Regina (on The Application of) v Secretary of State for International Development (In Substitution for The Home Secretary and The Education Secretary) SC 27-Jun-2018
The applicants, an heterosexual couple wished to enter into a civil partnership under the 2004 Act, rather than a marriage. They complained that had they been a same sex couple they would have had that choice under the 2013 Act.
Held: The . .
CitedBrewster, Re Application for Judicial Review (Northern Ireland) SC 8-Feb-2017
Survivor of unmarried partner entitled to pension
The claimant appealed against the rejection of her claim to the survivor’s pension after the death of her longstanding partner, even though they had not been married. The rules said that she had to have been nominated by her partner, but he had not . .
CitedTigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
CitedMichalak v General Medical Council and Others SC 1-Nov-2017
Dr M had successfully challenged her dismissal and recovered damages for unfair dismissal and race discrimination. In the interim, Her employer HA had reported the dismissal to the respondent who continued their proceedings despite the decision in . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
CitedMcLaughlin, Re Judicial Review SC 30-Aug-2018
The applicant a differently sexed couple sought to marry under the Civil Partnership Act 2004, but complained that they would lose the benefits of widowed parent’s allowance. Parliament had decided to delay such rules to allow assessment of reaction . .
CitedCrowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.

Adoption, Human Rights, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.269988

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales: UTTC 2 Nov 2012

TLC Provision of adoption services by a charity – discrimination against homosexuals and same sex couples who are potential adoptive parents – whether objectively justified under section 193 of the Equality Act 2010 – analogy with approach under Article 14 of the European Convention on Human Rights – whether permission should be granted for amendment of the charity’s Memorandum of Association.

Sales J
[2012] UKUT 395 (TCC)
Bailii
Equality Act 2010 193, European Convention on Hman Rights 14
England and Wales

Charity, Human Rights, Adoption, Discrimination

Updated: 31 October 2021; Ref: scu.466704

Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales and Another: ChD 17 Mar 2010

The charity appealed against refusal of permission to amend its charitable objects as set out in the memorandum of association. The charity was successful as an adoption agency particularly in placing children who would otherwise have had difficulty finding a home, following the principles of the Roman Catholic Church, and it wanted to restrict its services to married couples, excluding same-sex, unmarried and civil partner couples, taking advantage of the exception in regulation 18 of the 2007 Regulations, by expressly restricting those to whom it might provide a service. The Charity Tribunal had restricted its interpretation of ‘benefits’ in the Regulation to to those derived from a ‘pure charitable activity’. The Equality and Human Rights Commission (EHRC) argued that the change would deprive the charity of a claim to charity status.
Held: The appeal succeeded, and the case was remitted to the Commission for reconsideration in accordance with the principles identified. The 2007 Regulations made provision to protect the Human Rights to freedom of religion, and that must be respected in its interpretation.
Whereas an ordinary trust is valid only if it exists for the benefit of a defined class of beneficiaries, a charitable trust is, by definition, a purpose trust. However ‘although general charity law . . is the primary source for the understanding of the meaning of public benefit, it is no longer to be presumed that any particular type of purpose is for the public benefit. Section 3 [1996 Act] . . contemplates that purposes commonly regarded as charitable, such as the advancement of religion or education, the relief of sickness or poverty, or the care of children in need, may not be for the public benefit, for example if they are sought to be achieved in a particular manner.’ An organisation proposing a purpose for the public benefit will only qualify as a charity if, taking into account any dis-benefit arising from its modus operandi, its activities nonetheless yield a net public benefit.
‘[T]he purpose behind all the relevant exceptions in the [2007] Regulations . . is to exclude from the general prohibition types of differential treatment on grounds of sexual orientation which would, in the view of Parliament (applying for that purpose an appropriate margin of appreciation) be justified in the sense which I have described, so as to fall short of discrimination contrary to Article 14.’
The purpose of Regulation 18 is to afford to charities an exception from the prohibition of differential treatment on grounds of sexual orientation, wherever the public purpose being (or to be) achieved by the charity in question constitutes an Article 14 justification for that differential treatment.

Briggs J
[2010] EWHC 520 (Ch), Times 13-Apr-2010, [2010] PTSR 1074
Bailii
Charities Act 1993 64, Equality Act 2006 81, Equality Act (Sexual Orientation) Regulations 2007 18, European Convention on Human Rights 13, Charities Act 2006 1(1)(a) 3, Sex Discrimination Act 1975 43(3)
England and Wales
Citing:
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedC v United Kingdom ECHR 15-Dec-1983
(Commission) ‘Article 9 primarily protects the sphere of personal beliefs and religious creeds, ie, the area which is sometimes called the forum of the internal. In addition, it protects acts which are intimately linked with these attitudes, such as . .
CitedKozak v Poland ECHR 2-Mar-2010
In relation to the justification of differential treatment on grounds of sexual orientation, the State’s margin of appreciation is narrow, and that the principle of proportionality requires that the measure chosen to realise the legitimate aim must . .
CitedLadele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
CitedEB v France ECHR 14-Mar-2007
A homosexual woman complained that she had not been allowed to adopt a child. Her application was rejected by the French administrative court on grounds based substantially upon her sexual orientation.
Held: The provision was an unlawful . .
CitedSalgueiro Da Silva Mouta v Portugal ECHR 21-Dec-1999
There was a difference in treatment between the applicant and a comparator based on the applicant’s sexual orientation, a concept which is undoubtedly covered by Article 14. The list set out in this provision is of an indicative nature and is not . .
CitedKarlheinz Schmidt v Germany ECHR 18-Jul-1994
Article 14 of the Convention operates not by way of the conferral of a freestanding right not to be discriminated against, but rather by way of complementing the other substantive provisions of the Convention and the Protocols. It has no independent . .

Lists of cited by and citing cases may be incomplete.

Adoption, Discrimination, Charity, Human Rights

Updated: 31 October 2021; Ref: scu.403332

Coventry City Council v PGO and Others: CA 22 Jun 2011

The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children and whether the placement for adoption had taken place without the children being physically so placed. It was argued that the foster parents could not meet the requirements of section 44 of the 2002 Act.
Held: The authority’s appeal succeeded. The wording of the duties cast on the local authority by the 2002 Act on receiving a notice from prospective applicants could not be read to negative the possibility of their removal of the child. Indeed section 38 specifically provided a power to the authority to remove the child. Where a placement order had been made in favour of the authority the power of removal was not unders section 20(8) but by a combination of sections 3(1) and 25(2). Nothing in these circumstances operated to remove the authority’s power so to act, though the FPR were perhaps misleading. Though the court had a power to award an injunction even 10 weeks ahead of the time when the correct notice could be given, the court should have asked as to the foster parents’ real prospects of successin establishing that Coventry had acted irrationally. Asking that the prospects were low, and an injunction should not have been granted.
As to placement, a child is placed with prospective adopters only when he begins to live with them: for an adoption agency cannot ‘leave’ a child with persons as prospective adopters before he has begun to live with them: ‘a child is not ‘placed’ for adoption until he begins to live with the proposed adopters or, if he is already living with them in their capacity as foster carers, when the adoption agency formally allows him to continue to live with them in their fresh capacity as prospective adopters.’

Lord Neuberger MR, Wilson L, Dame Janet Smith
[2011] EWCA Civ 729
Bailii
Adoption and Children Act 2002 42 44, Family Procedure (Adoption) Rules 2005, Family Procedure Rules 2010 118 119
England and Wales
Citing:
CitedFourie v Le Roux and others HL 24-Jan-2007
The appellant, liquidator of two South African companies, had made a successful without notice application for an asset freezing order. He believed that the defendants had stripped the companies of substantial assets. The order was set aside for . .
CitedRe A (A Minor), Re TL v Coventry City Council; CC v A, by her Children’s Guardian CA 21-Dec-2007
The foster mother of a baby promptly indicated a wish to adopt her. Following four months of assessment Coventry informed her that, for reasons which she wished to challenge, her adoption of the baby would be unsuitable. Three days prior to so . .
CitedIn re F (A Child) (Placement Order); C v East Sussex County Council (Adoption) CA 1-May-2008
The father sought to revoke a freeing order. He said that the social workers had conspired to exclude him from the process. The child was born of a casual relationship, and at first he was unaware of the proceedings. On learning of them he sought to . .
CitedAmerican Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
CitedSmith v Inner London Education Authority CA 1978
Lord Denning MR doubted the applicability of the criteria in American Cynamid to public law proceedings. It is appropriate at the interface of public law and private law for the public interest to be taken into account as one of the factors in the . .
CitedRegina v Ministry of Agriculture Fisheries and Food and Secretary of State for Environment ex parte Monsanto Plc Admn 31-Jul-1998
The principles which apply generally in claims for interim injunctive relief apply also in judicial review applications. The principle is that the applicant must show an arguable case, The court was not to try the main issues on affidavit. A triable . .
CitedRe S (Placement Order: Revocation) CA 7-Oct-2008
The circuit judge had been wrong to hold that a child placed with foster parents who were actively considering whether to apply to adopt him had been placed with them for adoption. Thorpe LJ said clearly that a child could not be said to be placed . .
CitedW, Regina (on The Application of) v London Borough of Brent Admn 9-Feb-2010
Application for judicial review of decision to place child for adoption pursuant to a placement order. The chronology was that: (a) on 3 August 2009 Brent’s adoption and permanency panel approved the match of the child with prospective adopters; (b) . .

Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 31 October 2021; Ref: scu.441146

Down Lisburn Health and Social Services Trust and Another v H and Another: HL 12 Jul 2006

The House considered when adoption law would allow an adoption without the consent of the birth parent where there had been some continuing contact between that parent and the child.
Held: (Baroness Hale dissenting) The appeal against the adoption was dismissed. The judge’s opinion had been expressed strongly but he had expressed the law accurately, and applied it. His decision was within the range of proper decisions.
Baroness Hale pointed out that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.

Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
[2006] UKHL 36
Bailii
Adoption (Northern Ireland) Order 1987 18(1)
Northern Ireland
Citing:
CitedIn re W (An Infant) HL 1971
The court considered the reasonability of parental disagreement in applications for adoption: ‘Two reasonable parents can perfectly reasonably come to opposite conclusions on the same set of facts without forfeiting their title to be regarded as . .
CitedRe C (A Minor) (Adoption Order: Conditions) HL 1988
The House considered the question of conditions to be applied to any continued contact with a child after adoption. Lord Ackner said: ‘The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but . .
CitedYousef v The Netherlands ECHR 5-Nov-2002
In ‘judicial decisions where the rights under article 8 of parents and of a child are at stake, the child’s rights must be the paramount consideration.’ . .
CitedG v G (Minors: Custody Appeal) HL 25-Apr-1985
The House asked when a decision, on the facts, of a first instance court is so wrong as to allow it to be overturned on appeal.
Held: The epithet ‘wrong’ is to be applied to the substance of the decision made by the lower court. ‘Certainly it . .
CitedRe G (Children) CA 20-May-2002
. .
CitedRe C (a Minor) (Adoption: Parental Agreement: Contact) CA 1993
Where adoption is to be considered against the will of the parent, the court should recognise when asking whether the opposition was unreasonable that the test is objective and supposes that this person is endowed with a mind and temperament capable . .
CitedIn re E (A Minor) (Care Order: Contract) CA 1994
The court considered the benefits to a child of continuing parental contact while the child remained in care.
Simon Brown LJ said: ‘I recognise of course that the threshold criteria for a care order under section 31 of the 1989 Act require the . .
CitedP, C and S v United Kingdom ECHR 2002
The local authority had obtained the issue of an Emergency Protection Order under the 1989 Act to remove a child at birth.
Held: Where the possibility of harm arose from the mother introducing something into the child’s system (such as a . .
CitedK And T v Finland ECHR 27-Apr-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; No violation of Art. 13; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention proceedings; Costs and expenses . .
CitedIn re L (An Infant) CA 1962
That a proposed adoption of a child would be in the child’s best interests is not necessarily an indication that the parent’s opposition to the adoption is unreasonable: ‘A reasonable mother surely gives great weight to what is better for the child. . .
CitedIn re D (An Infant) (Adoption: Parent’s Consent) HL 1977
The father opposed adoption of a child by the mother and her new husband. The House was asked whether his opposition was unreasonable.
Held: Lord Wilberforce said: ‘What, in my understanding, is required is for the court to ask whether the . .
CitedIn re E (Minors) (Adoption: Parental Agreement) 1990
Aa application for a freeing order was premature. . .
CitedIn re KLA (An Infant) 2000
Sir John MacDermott considered the purpose of freeing orders. The purpose was: ‘to find out if a child would be available for adoption before prospective adopters were found and their hopes frustrated if the adoption court ruled that consent was not . .
CitedIn re C (Minors) (Adoption) 1992
. .
CitedIn Re P (Minors) (Adoption: Freeing Orders) FD 25-Jul-1994
A judge should not order continued contact after the making of freeing orders which were made without the consent of the mother. . .
CitedIn Re A (A Minor) (Adoption: Contact Order) CA 24-Jun-1993
A contact order had been properly granted with an order freeing the child for adoption. Butler-Sloss LJ: ‘The effect of an order freeing a child for adoption is to extinguish parental responsibility of those previously endowed with it and thus to . .

Lists of cited by and citing cases may be incomplete.

Adoption

Leading Case

Updated: 31 October 2021; Ref: scu.243080

X and Others v Austria (Summary): ECHR 19 Feb 2013

(Grand Chamber) Article 14
Discrimination
Impossibility of second-parent adoption in same-sex couple:
violation
Facts – The first and third applicants are two women living in a stable homosexual relationship. The second applicant is the third applicant’s minor son. He was born out of wedlock. His father had acknowledged paternity but the third applicant had sole custody. The first applicant wished to adopt the second applicant in order to create a legal relationship between them without severing the boy’s relationship with his mother and an adoption agreement was concluded to that end. However, the domestic courts refused to approve the agreement after finding that under domestic law adoption by one person had the effect of severing the family-law relationship with the biological parent of the same sex, so that the boy’s adoption by the first applicant would sever his relationship with his mother, the third applicant, not his father.
Law – Article 14 in conjunction with Article 8
(a) Applicability – The relationship between the three applicants amounted to ‘family life’ within the meaning of Article 8. Article 14, taken in conjunction with Article 8, was therefore applicable.
(b) Comparison with a married couple in which one spouse wished to adopt the other spouse’s child – The Court saw no reason to deviate from its findings in Gas and Dubois v. France and concluded that the first and third applicants in the instant case were not in a relevantly similar situation to a married couple.
Conclusion: no violation (unanimously).
(c) Comparison with an unmarried different-sex couple in which one partner wished to adopt the other partner’s child – The Court accepted that the applicants were in a relevantly similar situation to an unmarried different-sex couple in which one partner wished to adopt the other partner’s child. The Government had not argued that a special legal status existed which would distinguish an unmarried heterosexual couple from a same-sex couple and had conceded that same-sex couples could in principle be as suitable (or unsuitable) for adoption purposes, including second-parent adoption, as different-sex couples. Austrian law allowed second-parent adoption by an unmarried different-sex couple. In contrast, second-parent adoption in a same-sex couple was not legally possible. The relevant regulations of the Civil Code provided that any person who adopted replaced the biological parent of the same sex. As the first applicant was a woman, her adoption of her partner’s child could only sever the child’s legal relationship with his mother. Adoption could therefore not serve to create a parent-child relationship between the first applicant and the child in addition to the relationship with his mother.
The Court was not convinced by the Government’s argument that the applicants’ adoption request had been refused on grounds unrelated to their sexual orientation and that, therefore, the applicants were asking the Court to carry out an abstract review of the law. The domestic courts had made it clear that an adoption producing the effect desired by the applicants was impossible under the Civil Code. They had not carried out any investigation into the circumstances of the case. In particular, they had not dealt with the question whether there were any reasons for overriding the refusal of the child’s father to consent to the adoption. In contrast, the regional court had underlined that the notion of ‘parents’ in Austrian family law meant two persons of the opposite sex and had stressed the interest of the child in maintaining contact with both those parents.
Given that the legal impossibility of the adoption had consistently been at the centre of their considerations, the domestic courts had been prevented from examining in any meaningful manner whether the adoption would be in the child’s interests. In contrast, in the case of an unmarried different-sex couple they would have been required to examine that issue. The applicants had thus been directly affected by the legal situation of which they complained since the adoption request was aimed at obtaining legal recognition of the family life they enjoyed, all three could claim to be victims of the alleged violation.
The difference in treatment between the first and third applicants and an unmarried different-sex couple in which one partner sought to adopt the other partner’s child had been based on their sexual orientation. The case was thus to be distinguished from Gas and Dubois, in which the Court had found that there was no difference of treatment based on sexual orientation between an unmarried different-sex couple and a same-sex couple as, under French law, second-parent adoption was not open to either.
There was no obligation under Article 8 to extend the right to second-parent adoption to unmarried couples. However, given that domestic law did allow second-parent adoption in unmarried different-sex couples, the Court had to examine whether refusing that right to (unmarried) same-sex couples served a legitimate aim and was proportionate to that aim.
The domestic courts and the Government had argued that Austrian adoption law was aimed at recreating the circumstances of a biological family. The protection of the family in the traditional sense was in principle a legitimate reason which could justify a difference in treatment. The same applied to the protection of the child’s interests. However, in cases where a difference in treatment based on sex or sexual orientation was concerned, the Government had to show that the difference in treatment was necessary to achieve the aim. The Government had not provided any evidence to show that it would be detrimental to a child to be brought up by a same-sex couple or to have two mothers and two fathers for legal purposes. Moreover, under domestic law, adoption by one person, including one homosexual, was possible. If he or she had a registered partner, the latter had to consent to the adoption. The legislature therefore accepted that a child might grow up in a family based on a same-sex couple and that this was not detrimental to the child. There was also force in the applicants’ argument that de facto families based on a same-sex couple existed but were refused the possibility of obtaining legal recognition and protection. These considerations cast considerable doubt on the proportionality of the absolute prohibition on second-parent adoption in same-sex couples.
The Government had further argued that there was no consensus among European States regarding second-parent adoption by same-sex couples and that consequently the State had a wide margin of appreciation to regulate that issue. However, the issue before the Court was not the general question of same-sex couples’ access to second-parent adoption, but the difference in treatment between unmarried different-sex couples and same-sex couples in respect of such adoptions. Consequently, only ten Council of Europe member States, which allowed second-parent adoption in unmarried couples, might be regarded as a basis for comparison. Within that group, six States treated heterosexual couples and same-sex couples in the same manner, while four adopted the same position as Austria. The narrowness of that sample did not allow conclusions to be drawn as to a possible consensus among European States.
The instant case did not concern the question whether the applicants’ adoption request should have been granted, but the question whether the applicants had been discriminated against on account of the fact that the courts had had no opportunity to examine in any meaningful manner whether the requested adoption was in the second applicant’s interests, given that it was in any case legally impossible.
The Government had failed to give convincing reasons to show that excluding second-parent adoption in a same-sex couple, while allowing that possibility in an unmarried different-sex couple, was necessary for the protection of the family in the traditional sense or for the protection of the interests of the child. The distinction was therefore discriminatory.
Conclusion: violation (ten votes to seven).
Article 41: EUR 10,000 jointly in respect of non-pecuniary damage.
(See Gas and Dubois v. France, no. 25951/07, 15 March 2012, Information Note no. 150)
19010/07 – Legal Summary, [2013] ECHR 425
Bailii
European Convention on Human Rights 8 814
Citing:
CitedValerie Gas And Nathalie Dubois v France ECHR 11-Mar-2011
. .
JudgmentX And Others v Austria ECHR 19-Feb-2013
Grand Chamber – The applicants alleged that they had been discriminated against in comparison with different-sex couples, as second-parent adoption was legally impossible for a same-sex couple.
Held: An applicant is entitled to the . .

Cited by:
CitedSG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.509231

M, In the Matter of: NIHC 10 Sep 2001

Twin girls aged 14 and a half were to be adopted. They had substantial difficulties, and would require continued care throughout their lives. Their elder brother had lived with the same family, but later made allegations of abuse. These were unsubstantiated, but some distrust had developed between the adoptive parents and social services, and in particular the guardian ad litem. An adoption was to be granted, but subject to conditions which would preserve contact between the children and their elder brother and natural mother.
[2001] NIEHC 65
Bailii
Northern Ireland

Updated: 14 September 2021; Ref: scu.166464

Re N (Children : Adoption: Jurisdiction): CA 2 Nov 2015

Appeal against care and placement order proceedings in relation to two Hungarian children, The orders were for the transfer of the case to Hungary.
Held: The appeal was dismissed. As to Article 15, the Court considered: What are the requirements before the English court can make a request for a transfer to another member state? The President observed that ‘there is much English learning on the meaning and application’ of article 15.1. He repeated the guidance he had given in In re M (Brussels II Revised: Article 15) [2014] EWCA Civ 152; [2014] 2 FLR 1372 on which the judge had also relied. He went on to emphasise how important it is that article 15 is considered at the earliest possible opportunity, although it could be considered at any stage of the proceedings; repeated applications were to be deprecated and would usually fail unless there had been a change of circumstances, although they might sometimes be appropriate; that a transfer could be considered after a fact-finding hearing, but only in exceptional circumstances; and the process should be summary, measured in hours not days and not dependent on a profound investigation of the evidence.
Leaving to one side any question arising in relation to article 1.3.b, was the judge justified in deciding as he did? Could it be said that he was wrong to do so? The court concluded that he was justified in deciding to exercise jurisdiction to request transfer under article 15; he undertook a careful examination of all the relevant factors; he did not consider any irrelevant factors; he did not err in the weight he attached to the relevant factors, or misdirect himself in law.
Was the judge’s decision vitiated by his failure to address article 1.3.b? What were the consequences of his omission to do so? The court held that the fact that he did not appreciate the effect of article 1.3.b did not vitiate his decision. His decision in relation to the care proceedings could and should stand and they should be stayed. His decision in relation to the placement order proceedings could not stand, but as they were of their nature consequential on the care proceedings, they too were stayed
Munby P summarised principles applying to choice of jurisdiction in adoption cases:
(i) Does an English court have jurisdiction (a) to make an adoption order in relation to a child who is a foreign national, and (b) to dispense with the consent of a parent who is a foreign national? This was a difficult question, given that the Brussels II revised Regulation does not cover adoption or measures preparatory to adoption, nor is there any other international instrument covering the matter. The Court of Appeal answered both (a) and (b) in the affirmative.
(ii) If the English court does have such jurisdiction, how should that be exercised? The President gave guidance.
(iii) What is the scope of the Brussels II revised Regulation? It is well-established that the Regulation applies to care proceedings, as well as to proceedings between private parties: see In re C (Case C-435/06) [2008] Fam 27. However, by excluding ‘decisions on adoption, measures preparatory to adoption, or the annulment or revocation of adoption’ from the scope of the Regulation, does article 1.3.b also exclude (a) care proceedings where the care plan is adoption, or (b) placement order proceedings? The court concluded that (a) was within the scope of the Regulation, but (b) was not.
Sir James Munby P FD, Black LJ, Sir Richard Aikens
[2015] EWCA Civ 1112, [2015] WLR(D) 436, [2016] 1 FCR 217, [2016] 1 All ER 1086, [2016] 1 FLR 621, [2016] 2 WLR 713, [2015] Fam Law 1444
Bailii, WLRD
Council Regulation (EC) No 2201/2003, Vienna Convention on Consular Relations
England and Wales
Citing:
At FCJ and E (Children: Brussels II Revised: Article 15) FC 11-Nov-2014
The local authority applied to the court for care orders and placement orders in respect of two young girls. The parents opposed the local authority’s applications. The mother was Hungarian. The father was Hungarian/Roma. The mother applied under . .
EmphasisedRe M (A Child) CA 21-Feb-2014
The court dealt with points of principle relating to how the courts in England and Wales determine family cases that involve nationals of other countries, in particular Member States of the European Union and for that reason, permission to appeal . .

Cited by:
At CAIn Re N (Children) SC 13-Apr-2016
The Court considered whether the future of two little girls, aged four and two years, should be decided by the courts of this country or by the authorities in Hungary. Both children were born in England and lived all their lives here. But their . .
CitedWilliams and Another v London Borough of Hackney SC 18-Jul-2018
On arrest for shoplifting a 12 year old said he had been doing so to get food, and that he had been hit with a belt by his father. Investigation revealed the home to be dangerous, and all eight children were removed to the care of the LA. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.554267

Re B (Adoption Order: Jurisdiction To Set Aside): CA 17 Mar 1995

The appellant was an adult in his thirties. He had been adopted at 3 months by an orthodox Jewish couple, and brought up as a Jew. His father was a Muslim Arab from Kuwait, and his mother was a Roman Catholic. He wished to settle in Israel, but was suspected of being an Arab spy and was asked to leave. He was also unable to settle in Kuwait. Having discovered his true origins, he applied to have the adoption order set aside. He now appealed against refusal of the order.
Held: The appeal failed. Swinton Thomas LJ said: ‘In my judgment such an application faces insuperable hurdles. An adoption order has a quite different standing to almost every other order made by a court. It provides the status of the adopted child and of the adoptive parents. The effect of an adoption order is to extinguish any parental responsibility of the natural parents. Once an adoption order has been made, the adoptive parents stand to one another and the child in precisely the same relationship as if they were his legitimate parents, and the child stands in the same relationship to them as to legitimate parents. Once an adoption order has been made the adopted child ceases to be the child of his previous parents and becomes the child for all purposes of the adopters as though he were their legitimate child.’
Swinton Thomas LJ
[1995] EWCA Civ 48, [1995] Fam 239, [1995] 3 FCR 671, [1995] Fam Law 469, [1995] 3 WLR 40, [1995] 3 All ER 333, [1995] 2 FLR 1
Bailii
Adoption Act 1976 52
England and Wales

Updated: 19 July 2021; Ref: scu.276287

A City Council v DC and Others: FD 11 Jan 2013

Application made by A City Council for the revocation of an order freeing a child, J for adoption.
Eleanor King J
[2013] EWHC 8 (Fam), [2013] BLGR 502, [2013] Fam Law 371, [2013] 1 WLR 3009, [2013] 1 FCR 446, [2013] 2 FLR 16
Bailii
England and Wales

Updated: 09 July 2021; Ref: scu.470587

W, Regina (on The Application of) v London Borough of Brent: Admn 9 Feb 2010

Application for judicial review of decision to place child for adoption pursuant to a placement order. The chronology was that: (a) on 3 August 2009 Brent’s adoption and permanency panel approved the match of the child with prospective adopters; (b) on or before 17 August 2009 Brent ratified the decision to place the child with them; (c) on 17 August 2009 the child first met the adopters; (d) introductory meetings continued for the next four day (e) on 21 August 2009 the mother’s solicitor notified Brent that she proposed to apply for leave to revoke the placement order; and (f) on 24 August 2009, unaware of the notification, the social workers caused the child to move to live with the adopters.
Held: Review was refused. Placement of a child for adoption is not defined in the Act, but W had been placed with the adopters on 17 August 2009 and so any application for leave to revoke made by the mother on 21 August 2009 would have been too late. The placement had occurred on 17 August because such was the date ‘when all the relevant legal formalities had been concluded and the introductions process began’. He had observed that: ‘the introductions process is not a process that takes place before the child in question has been placed for adoption: it is the first step in the relationship between the child and the prospective adopters after the child has been ‘placed for adoption’ by the authority.’
Coulson J
[2010] EWHC 175 (Admin), [2010] 1 FLR 1914, [2010] PTSR CS31, [2010] Fam Law 454
Bailii
Adoption and Children Act 2002
England and Wales
Cited by:
CitedCoventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .

These lists may be incomplete.
Updated: 14 June 2021; Ref: scu.396649

In Re T (Minors) (Adopted Children: Contact): CA 8 Aug 1995

A half-sister had been assured that when her half-sister was adopted she would be given annual reports as to her progress. No report was provided. When she enquired and complained, she was told that the adopters had changed their minds and that it was not in the children’s interests for the report to be provided. Furthermore, confidentiality precluded any explanation of the reasons for that refusal. She applied to the court for leave to make an application for contact. The judge refused it. She appealed.
Held: She succeeded. The court balanced carefully on the one hand the right of an adoptive family to protection of confidentiality and their right to bring up the adopted child in the way that they thought appropriate, and the inappropriateness of enforcing informal arrangements which might no longer be appropriate and which therefore fell to the prospective adopters to terminate. On the other hand, for the applicant it was argued that if this decision was allowed to stand it meant that adoptive parents could effectively ignore any agreement entered into in the best interests of the child in question, and that that would in fact result in more contests and more difficulties in prospective applications. The court came down firmly in favour of the latter proposition. Guidelines were given on procedures for maintaining parental contact after adoption order. Reasons beyond ‘not in Child’s interest’ are to be given before contact may be withdrawn. Balcombe LJ: ‘I am not saying that it should never be open to adopters to change their minds and resile from an informal agreement made at the time of the adoption. But if they do so they should, as Butler-Sloss LJ said in In re T (A Minor) (Contact After Adoption) [1995] 2 FCR 537, 543 give their reasons clearly so that the other party to the arrangement, and if necessary the court, may have the opportunity to consider the adequacy of those reasons. Nor need adopters fear that their reasons, when given, will be subjected to critical legal analysis. The judges who hear family cases are well aware of the stresses and strains to which adopters in the position of Mr and Mrs H are subject and a simple explanation of their reasons in non-legal terms would usually be all that is necessary. In my judgment where adopters in the position of Mr and Mrs H simply refuse to provide an explanation for their change of heart, particularly where, as here, the contact envisaged – the provision of a report – is of a nature which is most unlikely to be disruptive of the children’s lives, it is not appropriate for the court to accept that position without more.’
Balcombe LJ
Times 08-Aug-1995, Independent 23-Aug-1995, [1996] Fam 34
England and Wales
Cited by:
CitedIn re R (a Child) (Adoption: Contact) CA 18-Aug-2005
The child was placed for adoption. In the period before adoption, contact with her family continued. The prospective adopters said that this was unsettling.
Held: It would be unusual to make an order for contact against the wishes of the . .
CitedIn re R (A Child) CA 18-Aug-2005
An application was made for continued contact after a proposed adoption. The mother was young and had herself lost her family and taken into care when very young.
Held: Her request for permission to appeal failed. Wall LJ ‘I am reasonably . .
CitedOxfordshire County Council v X and Others CA 27-May-2010
oxford_xCA10
The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices . .

These lists may be incomplete.
Updated: 04 June 2021; Ref: scu.82227

Cornerstone (North East) Adoption and Fostering Service Ltd, Regina (on The Application of) v The Office for Standards In Education, Children’s Services and Skills: Admn 7 Jul 2020

Whether it is lawful for an adoption and fostering agency only to accept heterosexual evangelical Christians as the potential carers of fostered children.
The Honourable Mr Justice Julian Knowles
[2020] EWHC 1679 (Admin)
Bailii
England and Wales

Updated: 04 June 2021; Ref: scu.652385

KK v FYC: FD 15 Sep 2014

Application by a married couple, who are of Asian origin, but British citizens, to adopt a young man, now aged nine and a half, who has lived with them, effectively, for his whole life.
Holman J
[2014] EWHC 3111 (Fam)
Bailii
England and Wales

Updated: 04 June 2021; Ref: scu.537592

In Re T (A Minor) (Contact Order); In Re T (Adoption: Contact): CA 13 Jan 1995

A contact order which was not strictly necessary should not be made in adoption proceedings. Arrangements for contact should not be ‘imposed’ upon the adoptive parents but should be ‘left to their good sense so that they could be trusted to do what they believe to be in the best interests of their daughter.’ Butler-Sloss LJ indicated that the court could intervene in future and make an order if the adoptive parents were to behave unreasonably
Butler-Sloss LJ
Times 13-Jan-1995, [1995] 2 FLR 251
Adoption Act 1976
England and Wales
Cited by:
CitedOxfordshire County Council v X and Others CA 27-May-2010
oxford_xCA10
The LA, the guardian and adoptive parents appealed against an order that they should provide to the parents an annual photograph of the child. They contended that an image should only be made available to be viewed at the authority’s offices . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.82219

Re W (A Minor) (Adoption: Non-Patrial): CA 1986

W was born in China to Chinese parents. His aunt came to Britain and acquired citizenship. He came to live with her while studying, and she applied to adopt him. The judge refused saying that the primary intention was to obtain citizenship.
Held: The appeal failed. It should be good practice to give notice to the Home Office where the making of an adoption order will have the effect of conferring citizenship on a child otherwise an alien. The primary concern remained the welfare of the child throughout the childhood, but the supervision of the immigration authorities remained an important public policy element.
[1986] 1 FLR 179, [1985] 3 WLR 945
England and Wales
Cited by:
CitedRe IJ (A Child) (Foreign Surrogacy Agreement Parental Order) FD 19-Apr-2011
ij_FD11
The court gave reasons for making a parental order under the 2008 Act in favour of the applicants where a child had been born under surrogacy arrangements which were lawful in the Ukraine where he was born, but would have been unlawful here because . .

These lists may be incomplete.
Updated: 21 May 2021; Ref: scu.440066

Skinner v Carter: 1948

An adoption order alters the status of the child concerned, who is the person primarily affected and interested. Consequently, in any proceedings for the revocation or annulment of an adoption order, the child must be represented.
Lord Greene MR
[1948] Ch 387
England and Wales
Cited by:
CitedAlexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .

These lists may be incomplete.
Updated: 20 May 2021; Ref: scu.194025

J and J v C’s Tutor: 1948

Adoptive parents tried to reduce an adoption order. They asserted an essential error induced by innocent misrepresentations made by those acting for the natural mother; it was averred by the pursuers that they had been incorrectly assured that a satisfactory medical report existed in relation to the child. The child had suffered brain injury at birth. Secondly, they contended that statutory requiremnts had not been carried out; the adoption petition was presented less than three months from the date when the child was placed in the care of the adoptive parents, contrary to the Act.
Held: Adoption involves unpredictable risks as to the development of the child, and that therefore there should be no possibility of going back. Moreover, adoption affects status in a peculiarly fundamental manner; it creates a relationship whose paradigm is the relationship of natural parent and natural child, a relationship which, apart from the statutory possibility of adoption, is obviously wholly irrevocable and unbreakable. The Act ‘made a serious invasion upon the common law by introducing a novel institution which cannot easily be fitted into its setting’. An adoption order is sui generis; consequently the inherent power of the Court of Session to reduce decrees in absence and in foro should not apply. Essential error was not a valid ground for reduction of an adoption order.
1948 SC 636
Adoption of Children (Scotland) Act 1930
Scotland
Cited by:
CitedAlexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .

These lists may be incomplete.
Updated: 19 May 2021; Ref: scu.194024

LB v London Borough of Merton and Another: CA 1 May 2013

Maurice Kay LJ VP CA, Rafferty, Ryder LJJ
[2013] EWCA Civ 476
Bailii
England and Wales
Cited by:
See AlsoLondon Borough of Merton v LB FD 19-Dec-2014
The court considered applications in the case of a proposed adoption of a child LB. The mother, Latvian, and the Latvian authorities opposed the application, saying that the child’s future should be settled in Latvia. CB had been taken into care . .
See AlsoRe CB (A Child) CA 6-Aug-2015
P was the child of now separated women. P was born in the UK but taken by one parent to Pakistan. The other parent now appealed from refusal of her request for the court to exercise its inherent jurisdiction or wardship to support her application . .

These lists may be incomplete.
Updated: 19 May 2021; Ref: scu.491838

Re W: FD 22 May 2013

Application by Local Authority for permission to invoke the inherent jurisdiction of the High Court, with a view to the Local Authority seeking the revocation of an Adoption Order regarding G.
Held: The application was refused.
Bodey J
[2013] EWHC 1957 (Fam), [2013] Fam Law 1127, [2013] 2 FLR 1609, [2013] 3 FCR 336
Bailii
England and Wales

Updated: 14 May 2021; Ref: scu.514451

Rex v Leeds City Justices, ex parte Gilmartin: 1951

[1951] CLY 1629
England and Wales
Cited by:
CitedAlexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .

These lists may be incomplete.
Updated: 11 May 2021; Ref: scu.194029

Re A (A Minor), Re TL v Coventry City Council; CC v A, by her Children’s Guardian: CA 21 Dec 2007

The foster mother of a baby promptly indicated a wish to adopt her. Following four months of assessment Coventry informed her that, for reasons which she wished to challenge, her adoption of the baby would be unsuitable. Three days prior to so informing her, Coventry had matched the baby with prospective adopters and had resolved to move her into their home within the following three weeks. In that the baby had not had her home with her for as long as one year, the foster mother needed leave to apply for an adoption order under s.42(6) of the Act of 2002, whereupon, pursuant to s.44(4), she would be able to give notice of intention to adopt.
Held: The factors relevant to the exercise of the discretion under s.24(3) of the Act of 2002, as identified in the Warwickshire case, were identical to those relevant to the exercise of the discretion whether to grant leave to apply for an adoption order under s.42(6) of the Act of 2002.
Ward, Moore-Bick, Wilson LJJ
[2007] EWCA Civ 1383, [2008] 1 FLR 959, [2008] 1 FLR 959
Bailii
Adoption and Children Act 2002 24(3) 42(6)
England and Wales
Citing:
CitedWarwickshire County Council v M and others CA 1-Nov-2007
The judge had granted the mother leave to apply for revocation of placement orders. The authority appealed. The mother argued that once a change of circumstances was shown, the court was obliged to give leave to apply.
Held: The judge was not . .

Cited by:
CitedIn re G (A Child) (Special guardianship order: Application to discharge) CA 10-Feb-2010
reGCA10
The mother had failed in her application to have set aside a special guardianship order made in favour of the child’s grandmother. The judge had held that the change in her circumstances was not significant.
Held: Her appeal succeeded. The . .
CitedCoventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.263402

S v M: 1999

1999 SC 388
Scotland
Cited by:
CitedAlexander Cameron (Ap) v Ian Macintyre Gibson, As Executor Dative of the Late Dugald Macintyre and Another SCS 2-Dec-2003
An adoption order had been made, but at the time, the adopted child was over the maximum age. Application was made to set it aside.
Held: Adoption orders could not be set aside save for where some fraud could be demonstrated to have been . .

These lists may be incomplete.
Updated: 10 May 2021; Ref: scu.194027

Frette v France: ECHR 26 Feb 2002

A single homosexual man complained that the respondent state had made it impossible for him to adopt a child.
Held: The claim was within the ambit of article 8 as regards respect for family life, but the court dismissed the claim under article 14 in conjunction with article 8, on margin of appreciation grounds. The claimant succeeded on a separate complaint of a breach of article 6. There was the legitimate aim of protecting the interests of children at a time when child psychiatrists and psychologists were divided in their opinions of the effects of being adopted by homosexual parents. Article 14 ‘ . . complements the other substantive provisions of the Convention and its Protocols. It has no independent existence since it has effect solely in relation to ‘the enjoyment of the rights and freedoms’ safeguarded by those provisions.’
36515/97, [2002] ECHR 156, (2002) 38 EHRR 438, [2003] 2 FLR 9, [2002] ECHR 156
Bailii, Bailii
European Convention on Human Rights
Human Rights
Citing:
See AlsoFrette v France ECHR 2002
There are certain grounds of factual difference which by common accord are not acceptable, without more, as a basis for different legal treatment, including sexual orientation: ‘. . the Contracting States enjoy a margin of appreciation in assessing . .

Cited by:
CitedSecretary of State for Work and Pensions v M HL 8-Mar-2006
The respondent’s child lived with the estranged father for most of each week. She was obliged to contribute child support. She now lived with a woman, and complained that because her relationship was homosexual, she had been asked to pay more than . .
CitedWilkinson v Kitzinger and Another FD 12-Apr-2006
The petitioner intended to seek a declaration as to her marital status. She and the respondent had married in a civil ceremony in British Columbia in 2003. She sought a declaration of incompatibility with regard to section 11(3) of the 1973 Act so . .
CitedWilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
CitedIn re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
CitedGaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .

These lists may be incomplete.
Updated: 09 May 2021; Ref: scu.212864

Re L (Adoption: Identification of Possible Father): CA 30 Apr 2020

‘In A, B and C (Adoption: Notification of Fathers And Relatives) [2020] EWCA Civ 41 this court considered the approach to be taken where a mother wants a baby to be placed for adoption without notice being given to the child’s putative father. This appeal raises two related questions. First, to what extent does the same approach apply where there is uncertainty about the child’s paternity? And second, what should the response of the court be to a proposal that paternity should be investigated by carrying out DNA testing on other children of the mother without reference to the possible father? I will call this ‘sibling testing’ although it begs the question of whether there is shared parentage.’
Lord Justice Peter Jackson
[2020] EWCA Civ 577
Bailii
England and Wales

Updated: 05 May 2021; Ref: scu.650531

ANS and Another v ML: SCS 21 Jun 2011

In adoption proceedings, ML refused her consent to the proposed adoption. She argued that the provision in the 1997 Act (allowing a court to dispense with her consent) was beynd the competence of the Scottish Parliament, and infringed her right to family life.
Lord President, Lady Paton, Lord Kingarth
[2011] ScotCS CSIH – 38, 2012 SC 8, 2011 GWD 21-482, 2011 SLT 1204, [2011] CSIH 38, 2011 Fam LR 106, 2012 SCLR 172
Bailii
Adoption (Scotland) Act 2007, Scotland Act 1998 29(2)(d), European Convention on Human Rights 8
Scotland
Cited by:
Appeal fromANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Updated: 03 May 2021; Ref: scu.441319

London Borough of Tower Hamlets v Mother and Others: FD 7 Apr 2020

Application by the London Borough of Tower Hamlets (the Council) for a final injunction preventing the Respondents from disseminating information about prospective adopters, and to prevent the First and Second Respondents (the Mother and the Father) from approaching those adopters.
Mrs Justice Lieven
[2020] EWHC 832 (Fam)
Bailii
England and Wales

Updated: 02 May 2021; Ref: scu.650024

B and B v A County Council: CA 21 Nov 2006

The claimants sought damages from the defendant local authority after their identities had been wrongfully revealed to the natural parents of the adoptees leading to a claimed campaign of harassment. The adopters has specifically requested that their names and address be not revealed, but they details were let slip in a case conference. Both parties appealed. There had been one adoption, and then a second open adoption.
Held: The authority did not have to gve the undertaking, and should itself have understood the risks it ran. The council did owe a duty of care. The parents sought to continue their claim in breach of confidence, wanting to expand the claim for damages, but the court declined to take the view that additional damages might be recovered. The parents’ appeal against a finding that the harassment had not been shown to have derived from the birth family failed.
Buxton LJ, Sedley LJ, Bodey J
[2006] EWCA Civ 1388
Bailii
England and Wales
Citing:
CitedSmith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
CitedA and Another v Essex County Council CA 17-Dec-2003
The claimant sought damages. The respondent had acted as an adoption agency but had failed to disclose all relevant information about the child.
Held: Any such duty extended only during the period where the child was with the prospective . .
CitedRoberts v Johnstone CA 1989
The measure of damages in respect of additional housing costs necessitated by a plaintiff’s injuries is the additional cost over his lifetime of providing that accommodation. As regards the discount to be applied for the immediate receipt of funds . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedSeager v Copydex Ltd CA 1967
Mr Seager had invented a patented carpet grip which he manufactured and marketed under the trade mark Klent. There were protracted negotiations between Mr Seager and Copydex over a proposal for Copydex to market the Klent. One of the issues in the . .
CitedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
CitedAN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
CitedSwinney and Another v Chief Constable of Northumbria CA 22-Mar-1996
The plaintiff, a woman and her husband, had passed on information in confidence to the police about the identity of a person implicated in the killing of a police officer, expressing her concern that she did not want the source of the information to . .
CitedIn re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .

These lists may be incomplete.
Updated: 02 May 2021; Ref: scu.246338

AK and L v Croatia: ECHR 8 Jan 2013

ECHR Article 8-1
Respect for family life
Authorities’ failure to ensure legal representation of mentally disabled applicant in proceedings divesting her of parental rights and to inform her of adoption proceedings in respect of her son: violation
Facts – The first applicant is the mother of the second applicant L., who was born in 2008. Soon after his birth, L. was placed, with his mother’s consent, in a foster family in another town, on the grounds that his mother had no income and lived in a dilapidated property without heating. In May 2010 the first applicant was divested of her parental rights in respect of L., on the grounds that she had a mild mental disability and was not able to provide proper care to him. She applied for legal aid to lodge an appeal, but was only assigned a lawyer after the time-limit for appealing had expired. In October 2010 her lawyer applied to a municipal court for an order restoring the first applicant’s parental rights, but the application was dismissed because in the meantime L. had been adopted by third parties. The first applicant was not a party to the adoption proceedings and was not informed of them, as her consent was not needed because she had been divested of her parental rights.
Law – Article 8
(a) Standing of the first applicant to act on behalf of L. – In respect of any issues concerning the facts after the adoption became final, L.’s only representatives under national law were his adoptive parents. However, all issues concerning the severing of his ties with his biological mother before his adoption should be examined by the Court. It was in principle in a child’s interest to preserve its ties with its biological parents, save where weighty reasons existed to justify severing them. In the present proceedings, owing to his tender age, L. was not in a position to represent his interests. The first applicant was the only person able to argue on his behalf that severing the ties between them had also affected L.’s right to respect for his family life. The Government’s objection as regards the locus standi of the first applicant to represent L. in the proceedings before the Court had to be dismissed.
(b) Applicability – Although the child had been placed in a foster family soon after birth, the first applicant had continued to visit him. In the Court’s view there existed a bond between the first applicant and her son that amounted to ‘family life’. Article 8 was therefore applicable.
(c) Merits – The measures taken by the State amounted to interference with the applicants’ right to respect for their family life. The interference had a basis in domestic law and had been aimed at protecting the best interests of the child. The Court was not called upon to determine whether the adoption of the first applicant’s child was justified as such. Nor did it have to rule on the compliance with Article 8 of legislation which did not allow a parent divested of parental rights to participate in the adoption proceedings. Instead, the Court examined whether sufficient safeguards for the protection of the applicants’ private and family life had been provided at every stage of the process. The domestic legislation provided adequate safeguards as regards the interests of parents and their children in proceedings. However, despite the legal requirement and the authorities’ findings that the first applicant suffered from a mild mental disability, she had not been represented by a lawyer in the proceedings divesting her of parental rights. Given that she could not properly understand the full legal effect of such proceedings and adequately argue her case and given the importance of such proceedings for her right to respect for her family life, the national authorities should have ensured that the interests of both the first applicant and L. were adequately protected, in particular from the standpoint of preserving ties between them. While the Court could accept that the consent of the first applicant, who had been divested of her parental rights, was not necessary in the adoption proceedings, it nevertheless considered that where, as in Croatia, a national system allowed for parental rights to be restored, it was indispensable that a parent be given an opportunity to exercise that right before the child was put up for adoption. However, by not informing the first applicant about the adoption proceedings the national authorities had deprived her of the opportunity to seek restoration of her parental rights before the ties between her and her son had been finally severed by his adoption. She had thus been prevented from enjoying her right guaranteed by domestic law and had not been sufficiently involved in the decision-making process.
Conclusion: violation (unanimously).
Article 41: EUR 12,500 to the first applicant in respect of non-pecuniary damage.
37956/11 – Legal Summary, [2013] ECHR 290
Bailii
European Convention on Human Rights 8-1

Updated: 01 May 2021; Ref: scu.472432