High Court refuses application for adoption order in “gifted” baby case

In IN & Anor v RL & Ors [2024] EWCC 27 (08 August 2024),  Mr Justice Williams concluded that the continuation of the Special Guardianship Order (SGO), which was already in place, would best promote the child’s welfare, and that making an adoption order now “would carry with it disadvantages and potentially harmful elements which outweigh the advantages of the additional layer of security that adoption might carry”.

The judge however clarified that the issue of adoption should be re-visited “at some stage before the window of opportunity closes”, when the SGO expires as the child reaches 18.

Introducing the case, Mr Justice Williams said: “In this case a baby (W) was 'gifted' as an act of love and compassion by one sister (Mrs L) and her husband (Mr L), who already had two boys, to another 'sister' and her husband (Mr and Mrs N) who were desperate but unable to have their own family.

“And so baby W has been raised by Mr and Mrs N since he left hospital. He views them as his mum and dad. Mr L and Mrs L and their 3 children (another son was born after W) were to W his uncle, aunty and cousins although in truth they are his biological parents and his brothers.”

A Special Guardianship Order (SGO) was made in 2019, but in November 2022, Mr and Mrs N made an application to adopt W.

However, Mr L and Mrs L did not consent to his adoption.

The judge noted that in the course of the proceedings, W had been told the truth about his origins. Commenting upon the unique situation of a child being “gifted”, the judge observed: “It is clear from both sets of parents that they were motivated by noble but short term and adult-centric emotions when they made the decision that W should be 'gifted'.

“From what I have seen and read, none of them appreciated the magnitude of the possible consequences for themselves and W and his brothers of that gifting but they have lived the consequences and will continue to do so for the rest of their lives.”

The parties' positions at the commencement of the hearing were as follows:

The Applicants sought:

• An adoption order
• A child arrangements order for monthly contact of up to 5 hours until W is 18
• Life Story work from a professional trained in Therapeutic Life Story work.

The Respondents sought:

• The adoption order application to be dismissed
• The SGO to remain in place
• A contact order to be made providing for contact taking place once a month for 5 hours.

The judge said: “Whilst they understand the basis of the recommendation of Dr Duffy (a clinical psychologist instructed as a Part 25 Expert), that contact should take place with Mr and Mrs N present to show that the adults have a positive relationship, the parents do hope that Mr and Mrs N would trust them to take W out without their supervision.”

The Local Authority position was:

• Support for the adoption application
• A spending time with order
• They will provide post order support in relation to Life Story work
• The Applicants may request further special guardianship or post adoption support.

The Guardian’s position was:

• She supported and endorsed the approach of Dr Duffy and so opposed the making of an adoption order
• She supported the continuation of the SGO which had promoted W's welfare to date
• She supported the making of a Child Arrangement Order in respect of W spending time with Mr L and Mrs L, and concurred with Dr Duffy's recommendations in this regard.

Starting by summarising the differences in the effect of SGO's compared to adoption, the judge said: “An SGO maintains the legal link between the child and the birth parents - he remains their child legally and they remain his parents legally, likewise sibling status is preserved. Inheritance rights are thus unaffected and for W to inherit from the Applicants wills would be required. He would not inherit their estate automatically on intestacy.

“The SGO enables the SG to exercise parental responsibility to the exclusion of all others with PR. There are limited exceptions to the rights of the SG to exercise PR and these relate to removal from the jurisdiction for more than 3 months and change of name. For W the latter is not relevant as the birth parents identified his surname as on the birth certificate.”

Considering the thoughts and feelings of the parties involved, the judge said of Mr and Mrs N: “The Applicants are completely committed to W and will provide him with a secure home where he is loved and cared for as an adored son. The totality of the evidence about the Applicants demonstrates that in respect of his physical, educational and emotional needs they are well equipped to meet the usual needs of a boy such as W.

“However, they do appear to have a limitation in so far as their ability to meet his emotional needs arising from his being gifted to them and all that flows from that in terms of his coming to terms with the reasons why he is not being raised by his birth parents and with his 3 brothers but with the Applicants.”

He added: “It seems clear from the evidence of the professionals - fortified by common sense - that the success of a placement of a child with another family is enhanced if the carers are able to deal sensitively and openly with questions that the child has about his identity and the reasons for his not being brought up by his birth family. So far W has had little reason to question this. Until earlier this year he believed the Applicants were his mum and dad - full stop. Now he knows that this is not so. […]  He has found that upsetting although it is not playing out in his daily life and behaviour but he does even now have questions. The evidence (which I accept) demonstrates that Mr and Mrs N struggle with this reality emerging into their family.”

The judge noted that Mr L and Mrs L were clear in their opinion that adoption was not necessary.

Mr and Mrs L stated that currently under the SGO, Mr and Mrs N make all the decisions for W as they have parental responsibility, and they, (his birth parents), do not interfere with how he is being raised.

Mr L spoke of his concerns should the adoption order be granted, that he worries he and his wife would have no control over contact and that if he is adopted Mr and Mrs N could “exonerate W from their life”.

Mr L and Mrs L shared the view that the current adoption application was too premature and that W should be asked when he is older.

Analysing the case, Mr Justice Williams said: “The rare, if not unique circumstances of this case have presented a challenge to everyone. On the ground to the Applicants and to Mr L and Mrs L and to the 4 children who in different ways live with the consequences of the gifting each and every day. In the court process the professionals, lawyers and myself have had to apply familiar legal concepts to a novel factual landscape. That has undoubtedly stretched everyone as it is so rare to come across something unfamiliar in the world in which we operate.

“For the guardian and Dr Duffy, that became visible in them referring to the 'nothing else will do' approach. For the social worker she seemed to struggle to adapt the usual advantages of adoption to take account of the unexpected variants in this case. That said all involved plainly were seeking to give their best to reach the right result for W and the difference in views in this case turns on relatively small but significant areas of evaluation.”

The judge noted that a “great deal” was agreed. He said: “Ultimately the decision has to be determined by going back to the basic question of W's welfare and what outcome holistically evaluated will promote his welfare best across his lifetime. That evaluation is one of fact, taking into account the s.1(4) checklist which must then be placed within the framework of whether it requires the court to dispense with the parents' consent to adoption and whether adoption is a proportionate interference with the Article 8 rights of those affected.”

The judge concluded that the continuation of the SGO would best promote W's welfare, and that making an adoption order at the present time would carry with it “disadvantages and potentially harmful elements which outweigh the advantages of the additional layer of security that adoption might carry”.

He said: “Although the recognition of the de facto relationship could be characterised as more being consistent with adoption, that would be to ignore the other fact specific features which undermine adoption as the most consistent legal and welfare founded order. I therefore conclude that adoption would currently be a disproportionate interference with the Article 8 rights of W primarily but also those of the birth parents and that the maintenance of the SGO is a proportionate response to the overall balance of rights involved.

“I therefore do not consider that the situation requires me to dispense with the birth parents' consent and I refuse the application for an adoption order. The SGO will endure.”

The judge acknowledged however that the issue of adoption should be “re-visited” at some stage before the SGO expires as W reaches 18.

He said: “It is possible that W will wish to cement his position as the de facto son of the Applicants by becoming their legal son. I do not consider raising the topic is to place the burden of decision making on him. His birth parents have been clear that they would support his making that decision if that is his wish. There should be no possibility of an emotional tug of war. If his Life Story has been openly and sensitively managed it is likely that the adults around him will discern what his views are and it is entirely possible it will emerge over time and in circumstances which are not pregnant with tension but as a natural progression emerging from the satisfactory answering of questions.

“However, it is of course possible that the other more problematic route develops in which case there might be a clear view expressed against or where it seems to the birth family it has become a sore they need to treat by consenting to adoption. It is likely that the issue will begin to emerge at some point after W is 11 and perhaps as he enters adolescence around 13. The revisiting issue should be capable of being incorporated into the Life Story work but might also be the subject of a letter from the Guardian or the court to be given to W when he reaches 13.”

Finally, the judge called for a contact order to be made, setting out a minimum visit each month alternating between the Midlands and the South East (or wherever each of the families happen to be, providing they are within reasonable travelling distance).

He said: “W and the Applicants will benefit by being able to develop a more autonomous life but W will benefit by more meaningful time with his brothers and his birth parents. A visit of not less than five hours 12 times a year will promote that. Some may be built around family events. In practice it probably means:

1. a visit during each of the school holidays (2 in the summer)
2. a visit on 5 weekends during school term.”

In closing remarks, Mr Justice Williams said: “One can foresee that this should have the flexibility to change and develop over time by agreement by the parties. It may be that W will want to go to stay with his brothers and their family, one or more of them may want to stay with him. The families should remain flexible but the underlying importance of those relationships should be promoted. If by the time W is 11 and his brothers are not interested in that format then it should be revisited by the parents and the boys and a new norm established.”