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 of making reasonable decisions: ‘. . making the freeing order, the judge had to decide that the mother was ‘withholding her agreement unreasonably’. This question had to be answered according to an objective standard. In other words, it required the judge to assume that the mother was not, as she in fact was, a person of limited intelligence and inadequate grasp of the emotional and other needs of a lively little girl of 4. Instead she had to be assumed to be a woman with a full perception of her own deficiencies and an ability to evaluate dispassionately the evidence and opinions of the experts. She was also to be endowed with the intelligence and altruism needed to appreciate, if such were the case, that her child’s welfare would be so much better served by adoption that her own maternal feelings should take second place.
Such a paragon does not of course exist: she shares with the ‘reasonable man’ the quality of being, as Lord Radcliffe once said, an ‘anthropomorphic conception of justice’. The law conjures the imaginary parent into existence to give expression to what it considers that justice requires as between the welfare of the child as perceived by the judge on the one hand and the legitimate views and interests of the natural parents on the other. The characteristics of the notional reasonable parent have been expounded on many occasions: see for example Lord Wilberforce in In re D (Adoption: Parent’s Consent) [1977] AC 602, 625 (‘endowed with a mind and temperament capable of making reasonable decisions’). The views of such a parent will not necessarily coincide with the judge’s views as to what the child’s welfare requires.’
Judges:
Steyn and Hoffmann LJJ
Citations:
[1993] 2 FLR 260
Jurisdiction:
England and Wales
Citing:
Cited – In 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 . .
Cited – 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 . .
Cited by:
Cited – In Re F (Minors) (Adoption: Freeing Order) CA 4-Jul-2000
A judge had declined to make a freeing order, where it was clear that the children would not be returned to their parents, and the proposed adoption arrangements, which would split the children between two families, was opposed by the father on that . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.
Children, Adoption
Updated: 26 October 2022; Ref: scu.181233
