ADOPTION: SB v A County Council; Re P [2008] EWCA Civ 535

20 MAY 2008

(Court of Appeal; Thorpe and Wall LJJ and Munby J; 20 May 2008)

The proper test for dispensing with parental agreement to the making of a placement order, under Adoption and Children Act 2002, s 52(1)(b), was whether the child's welfare required adoption as opposed to something short of adoption; under s 1(2) of the 2002 Act the child's welfare throughout his life was the paramount consideration. Welfare meant welfare as determined by the court or adoption agency, having regard to the matters set out in s 1(4) of the 2002 Act, which provided a far wider checklist than that provided in Children Act 1989, s 1(3). The reference to the child's welfare throughout the child's life emphasised that adoption, unlike some forms of order under the 1989 Act, was something with lifelong implications. Plainly, European Convention on Human Rights, Art 8 was engaged, and any placement or adoption order made without parental consent must be proportionate to the legitimate aim of protecting the welfare and interests of the child; only in exceptional circumstances could measures totally depriving a parent of family life with a child be justified. A combination of the tests identified in s 1(1) and s 1(6) of the 2002 Act justified the local authority's pragmatic dual approach, conducting a search for both fostering and adoptive placements. A local authority could be 'satisfied that the child ought to be placed for adoption' within the meaning of s 22(1)(d) of the 2002 Act even though it recognised the reality that a search for adoptive parents might be unsuccessful and that, if it was, the alternative plan would have to be for long-term fostering. The 2002 Act envisaged the court exercising its powers to make contact orders post-adoption, where such orders were in the interests of the child concerned.

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