AJ (Child)

Factual and Procedural Background

The parents of a male child born in April 2001 sought permission to appeal against a court order made in August 2006 by His Honour Judge Wyn Richards at Swansea County Court. The order dispensed with the parents' consent to the child's adoption by his paternal aunt and uncle on the grounds that consent was being unreasonably withheld. The judge also directed that the child remain in his current placement pending the final hearing of the adoption application. The parents' initial application for permission to appeal was refused, but a renewed application was granted permission in December 2006.

The appeal concerns whether the child should be adopted or be the subject of a special guardianship order under section 14A(6)(b) of the Children Act 1989, as amended by the Adoption and Children Act 2002. The proceedings were governed by the Adoption Act 1976 because the adoption application was issued before the 2002 Act came into force. Under the 1976 Act, the court must be satisfied that adoption safeguards and promotes the child's welfare and that the parents are unreasonably withholding consent.

The child was removed from his parents' care at six months old and placed with his paternal aunt and uncle, who sought to adopt him. The parents' relationship was troubled by domestic violence and criminal offending, and the child had been subject to a care order with a care plan initially for long-term fostering and later for adoption. The parents' contact with the child was inconsistent and limited. The local authority recommended adoption as being in the child's best interests, and the aunt and uncle applied for an adoption order in August 2005. The final hearing was held over five days in June 2006, with judgment reserved until August 2006.

Legal Issues Presented

1. Whether the court was correct to dispense with the parents' consent to adoption on the basis that it was unreasonably withheld under section 16(2)(b) of the Adoption Act 1976.
2. Whether a special guardianship order under the Children Act 1989, as amended by the Adoption and Children Act 2002, was a viable alternative to adoption in this case.
3. Whether the judge adequately considered the impact of adoption on family relationships and the child's welfare.
4. Whether the judge's decision complied with the parents' rights under Article 8 of the European Convention on Human Rights (ECHR).
5. Whether the judge properly exercised judicial discretion in balancing the competing interests of the child and the parents.

Arguments of the Parties

Appellants' (Parents') Arguments

• The judge failed properly to consider a special guardianship order as a suitable alternative to adoption for providing security and stability.
• The judge's decision was disproportionate and violated the parents' rights under Article 8 ECHR.
• The judge did not adequately consider the use of a section 91(14) order to restrict future applications by the parents that could disrupt the placement.
• The judge substituted his own views for those of the parents without sufficiently considering their reasoning in withholding consent.
• The judge failed to consider the psychological impact on the child of the parents' inability to accept the adoptive placement.
• The judge did not properly consider Parliament’s intention in legislating for special guardianship orders as an alternative to adoption, especially in intra-familial placements.

Appellees' (Prospective Adopters and Child) Arguments

• The appeal concerns the exercise of judicial discretion based on the facts found by the judge.
• The judge correctly applied the law and made unassailable findings of fact supporting adoption.
• The principles from established case law require appellate courts to defer to the first instance judge’s discretion unless the decision is plainly wrong.
• Special guardianship orders have not replaced adoption orders in all familial placement cases; each case depends on the child’s best interests and facts.
• The judge’s findings that adoption would provide permanence and stability, and that the parents were unreasonably withholding consent, were properly reached.
• The judge’s conclusion that adoption would not distort family relationships was supported by evidence including expert psychological opinion.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re S [2007] EWCA Civ 54	General approach to special guardianship in adoption proceedings	Incorporated paragraphs 41 to 77 of Re S to guide the court’s approach to special guardianship versus adoption.
Re M (Adoption: Residence Order) [1998] 1 FLR 570	Whether special guardianship/residence orders can be imposed despite carers’ objections	The judge distinguished this case, holding that special guardianship should not be imposed without consent except in exceptional circumstances.
G v G (Minors Custody Appeal) [1985] FLR 894	Standard of appellate review in child welfare cases	Applied the principle that appellate courts should only interfere if the first instance decision was plainly wrong.
Re N (Residence: Hopeless Appeals) [1995] 2 FLR 230	Difficulty of overturning finely balanced welfare decisions on appeal	Supported the view that the more finely balanced the decision, the less likely it is to be overturned.
A local authority v X, Y and Z and others [2006] 2 FLR 41	Parliamentary intention behind special guardianship orders	Relied upon by appellants to argue special guardianship was intended as an alternative to adoption to avoid skewing family relationships.
Re W (an infant) [1972] AC 682	Reasonable parent test for unreasonableness of withholding consent to adoption	Applied to conclude a reasonable parent would consent to adoption in the child’s best interests.
Re C (A Minor) (Adoption: Parental Agreement: Contact) [1993] 2 FLR 260	Interpretation of unreasonableness in withholding consent to adoption	Supported the finding that parents were unreasonably withholding consent.
Re E (Adoption: Natural Parent) UKHL 70 [2002] 1 RLR 196	Balancing exercise under Article 8 ECHR in adoption cases	Confirmed that the best interests of the child and proportionality under ECHR align with adoption decisions.

Court's Reasoning and Analysis

The court affirmed the judge’s comprehensive and careful assessment of the facts and law. The judge’s findings that adoption would safeguard and promote the child's welfare throughout his childhood were unassailable on the facts. The judge rejected the continuation of the status quo under the care order as it interfered with family spontaneity and did not provide the child with legal security. The judge also found that a special guardianship order was not a viable alternative because it would not guarantee permanence and was likely to be contested by the parents, causing instability.

The judge’s evaluation of the parties’ credibility was pivotal. He found the prospective adopters to be devoted and capable carers, while the parents were assessed as unable to care for the child and likely to disrupt the placement. Expert psychological evidence supported adoption as the preferred option for achieving stability and permanence. The judge also concluded that adoption would not distort family relationships, given the child’s understanding of his birth parents and his placement.

The court rejected the appellants’ argument that special guardianship orders had replaced adoption orders in familial placements, emphasizing that each case depends on the child’s best interests and judicial discretion. The court agreed that the parents were unreasonably withholding consent to adoption, applying established legal principles and case law. The court further held that the adoption order did not violate Article 8 ECHR rights, as it represented a proportionate and necessary interference in the child's best interests.

Finally, the court noted that the judge’s obiter remarks on imposing special guardianship orders without consent were not determinative, with relevant discussion in the related case of Re S.

Holding and Implications

The appeal is DISMISSED.

The court upheld the adoption order, confirming that the parents were unreasonably withholding consent and that adoption was in the child's best interests to ensure permanence and stability. The decision reinforces the principle that special guardianship orders are not a blanket alternative to adoption, particularly where permanence cannot be assured. No new legal precedent was established; rather, the case exemplifies the careful exercise of judicial discretion in balancing competing interests in child welfare cases.