The Supreme Court allowed an appeal by the natural parents of a young child and set aside the High Court’s refusal to grant relief under Article 40.4.2 of the Constitution. The appeal arose from the parents’ request to have their daughter released from the care of prospective adoptive parents. The Court said the appeal would be allowed and an order made in the form proposed by the Chief Justice; the judgment excerpt does not set out the detailed terms of that order.
The child had been placed with the prospective adopters in November 2004, after her mother consented to adoption. The parents later withdrew their consent and sought her return. They married in January 2006. No adoption order had been made. The Supreme Court judgment states that, as the child was then part of a constitutional family with her married parents, adoption could proceed only under the restrictive conditions in the Adoption Act 1988.
The High Court had found that the parents failed in their duty and that compelling reasons justified keeping the child with the prospective adopters. On appeal, counsel for the adopters no longer seriously maintained the High Court’s finding of abandonment. The Supreme Court said there was no permissible meaning of “abandonment” or “desertion” that applied to the parents’ conduct on the evidence, and that the allegation should never have been made.
The Supreme Court held that “compelling reasons” meant evidence establishing strong reasons why the child’s welfare could not be secured in her natural family. It rejected the argument that possible harm from a transfer, coupled with the prospective adopters’ likely difficulty cooperating, met that test. A transfer should be planned, gradual and phased, the judgment said; the adopters’ cooperation could not operate as a veto on the parents’ claim.
The Court also rejected the High Court’s finding of failure in parental duty. It said placing a child for adoption, signing adoption forms, and later withdrawing consent could not themselves establish such a failure. Nor did it consider the parents’ decision to consult their own expert, the passage of time, or distrust between the parties sufficient grounds. The Court found no failure of duty or compelling reason to believe the child’s welfare could not be secured in her family.
The appeal was decided on the facts of this case, including the parents’ marriage and the child’s birth registration. The judgment did not decide what the outcome would have been without the marriage. It said the parents’ Article 40.4.2 challenge to the child’s custody was open to them and rejected the claim that the court could only refuse relief or order an immediate, unprepared transfer.