Family analysis: A father’s appeal out of time was allowed and a step-parent adoption order set aside as a result of deception by the applicants. Nasstassia Hylton, barrister at 1 Garden Court Chambers, considers the decision in Re J (Adoption: Appeal) [2018] EWFC 8 and looks at the serious consequences of giving false information to the courts.
What are the practical implications of this case?
This case involved the father’s applications for permission to appeal out of time against the making of an adoption order that was made on 1 May 2013 and his substantive application to appeal that order. In this case, the court reiterated the fundamental principle that clients must be honest with the court, practitioners should therefore advise their clients to be truthful, specifically drawing their attention to the wording of the statement of truth and the consequences of giving the court false information (either in a written or oral format), namely contempt of court and the risk of imprisonment. It is also sensible to reiterate to clients that a further serious consequence can be the setting aside of a previously obtained court order.
There is no mention of the respondents in this case using legal representation, nonetheless the points are of general application. One cannot assume that clients have these matters at the forefront of their minds when they are desperately pursuing or opposing a particular application. Furthermore, this case gives an example of the type of situation which may result in the successful appeal of an adoption order.
The case also reaffirms the principle that notwithstanding the fact that a parent (the father in this case) does not have parental responsibility, and even where the pre-existing relationship between parent and child was limited, he was nonetheless someone whom the court could have directed to be a respondent to the application pursuant to the Family Procedure Rules 2010 (FPR 2010), SI 2010/2955, 14.3(3) Cobb J found that the biological father was so affected by the issues before the court, which undoubtedly and profoundly engaged his rights under Article 8 of the European Convention on Human Rights (ECHR) that he should have been made a party to the original adoption order proceedings.
What was the background?
This was an unusual case. It concerned J, who was 11 years old by the time of the appeal before Cobb J. He was conceived when his biological parents were in their late teens. It appears that their relationship was short lived (a few months long). When registering J’s birth, the mother did not include the biological father’s details on the birth certificate.
J and his father were in sporadic and limited contact and communication for a few years, which was facilitated by the mother. Contact was infrequent largely due to the impact of the father’s anxiety and depression.
In subsequent years, the mother met and remarried SF, and on 11 April 2013, SF made an application to adopt J. It is important to note that Cobb J found (and it does not appear to have been disputed) that the mother knew the father’s identity, address, mobile telephone number, social media contact details and, in addition, they had mutual friends.
SF’s adoption application followed the usual course through the local authority and then through the court. The judge found that throughout the process the mother, SF and certain family members had lied to professionals and subsequently the court, about their knowledge of the father’s identity, contact details and whereabouts. As a result, the professional assessments and ultimately the court’s decision were made on the basis of a fundamental misrepresentation of the true position regarding the biological father. An unopposed adoption order was made on 1 May 2013.
It was not until 2016 that the father was made aware that the adoption order had been made. He subsequently launched his applications for private law orders, and in 2017, he made his application for permission to appeal the making of the adoption order.
What did the court decide?
Cobb J was scathing about the conduct of the mother and SF. He stated that ‘Indisputably, M, SF and M’s family had misled the local authority social worker, the Cafcass reporting officer and ultimately the magistrates considering the adoption application’ and he referred to the respondent’s conduct as ‘disgraceful’. Having considered the matter, Cobb J granted permission to appeal; he allowed the appeal and set aside the adoption order. The judge made a number of comments about the gravity and implications of the adoption process noting that, ‘No one truly doubts that an adoption order is one of the most, if not the most, significant and in human terms, far reaching of all orders available to a judge in any jurisdiction in England and Wales’.
The judge considered punishing the mother and SF in accordance with FPR 2010, SI 2010/2955, 17.6, using his power to commit them to prison. It is clear from the strength of his comments about their conduct, that he was seriously considering this option. However, the applicant father did not seek the imposition of such sanctions, agreeing instead for increased contact with J including weekend visits and his acquisition of parental responsibility.
Interviewed by Evelyn Reid.
The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
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