Tag: Adoption

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:
Cited – 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. . .
Cited – Larkos 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 . .
Cited – Mazurek 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 . .
Cited – Wilson 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 . .
Cited – Wilson 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 . .
Cited – Pla 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 . .
Cited – Fabris 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 . .
Cited – Secretary 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 . .
Cited – In 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 . .
Cited – Horsham 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 . .
Cited – Horncastle 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 . .
Cited – Re 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 . .
Cited – Abbott 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

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:
Approved – In 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 from – In 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:
Cited – Roberts 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: . .
Cited – Chief 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 . .
Cited – In 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 . .
Cited – Bank 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

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:
Cited – Ladd 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 . .
Cited – In Re F (R) (An Infant) 1970
An adoption order was set aside for an irregularity. . .
Cited – Carson 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 . .
Cited – Norfolk County Council v The Parents and BC (By her Child’s Guardian) FD 29-Jun-2007
. .
Cited – Cases 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 . .
Cited – Re RA (Minors) 1974
An adoption order was set aside for a procedural irregularity. . .
Cited – Aiden 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 . .
Cited – Re Webster (A Minor) FD 23-Feb-2007
. .
Cited – Re 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 . .
Cited – Norfolk 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 . .
Cited – Re 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 . .
Cited – In 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

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:
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 – Re 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 . .
Cited – Yousef 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.’ . .
Cited – G 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 . .
Cited – Re G (Children) CA 20-May-2002
. .
Cited – Re 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 . .
Cited – In 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 . .
Cited – P, 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 . .
Cited – K 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 . .
Cited – In 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. . .
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 – In re E (Minors) (Adoption: Parental Agreement) 1990
Aa application for a freeing order was premature. . .
Cited – In 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 . .
Cited – In re C (Minors) (Adoption) 1992
. .
Cited – In 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. . .
Cited – In 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

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

References: [2012] UKUT 395 (TCC)
Links: Bailii
Coram: Sales J
Ratio: 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.
Statutes: Equality Act 2010 193, European Convention on Hman Rights 14

Last Update: 25-Jun-16
Ref: 466704

A Local Authority v XYZ (No 1); FC 1 Jul 2015

References: [2015] EWFC 69
Links: Bailii
Coram: Moor J
Care proceedings and an application for a placement order in relation to a young boy, Y. He is six months old.
This case is cited by:

  • See Also – A Local Authority -v- XYZ (No 2) FC (Bailii, [2015] EWFC 70)
    Care proceedings and an application for a placement order in relation to a young boy, Y. He is coming up to seven months old. . .

A Local Authority v XYZ (No 2); FC 3 Jul 2015

References: [2015] EWFC 70
Links: Bailii
Coram: Moor J
Care proceedings and an application for a placement order in relation to a young boy, Y. He is coming up to seven months old.
This case cites:

  • See Also – A Local Authority -v- XYZ (No 1) FC (Bailii, [2015] EWFC 69)
    Care proceedings and an application for a placement order in relation to a young boy, Y. He is six months old. . .

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

References: [2014] EWFC 33
Links: Bailii, Jud
Coram: Sir James Munby P FD
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.
Statutes: Adoption and Children Act 2002 79(4)
This case cites:

  • Cited – Re H (Adoption: Disclosure of Information ) ([1995] 1 FLR 236)
    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 . .
  • Cited – D -v- Registrar General ([1997] 2 FLR 240)
    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. . .
  • Cited – FL -v- Registrar General FD (Bailii, [2010] EWHC 3520 (Fam), [2011] 2 FCR 229, [2011] Fam Law 453, [2011] 2 FLR 630)
    The claimant sought disclosure of information held by the respondent as to the identities of her pre-adoptive natural parents. . .