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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of C and D (Adoption) [2009] JRC 036B (03 March 2009) URL: http://www.bailii.org/je/cases/UR/2009/2009_036B.html Cite as: [2009] JRC 36B, [2009] JRC 036B |
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Child custody - application for the adoption of two children.
[2009]JRC036B
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Before : |
Sir Philip Bailhache, Kt., Bailiff, and Jurats King and Liddiard. |
IN THE MATTER OF THE ADOPTION (JERSEY) LAW 1961
AND IN THE MATTER OF C AND D
The applicant PS appeared in person.
Advocate E. L. Hollywood for the Attorney General as Amicus curiae.
judgment
the bailiff:
1. On the 27th January, 2009, the court determined that there were entitling the applicant PS to adopt the female child C. Although the same considerations did not apply to her twin brother D, it was inherent in that decision that it was open to PS also to adopt D. We refer to C and D jointly as "the children". We indicated that we would give our reasons at a later date, and this we now proceed to do. We record that the same court made adoption orders in relation to C and D on 30th January, 2009.
2. The application was referred to this Court by the Deputy Family Registrar. On 20th November, 2008, the Bailiff issued certain directions. Mrs Jane Whittaker, a senior officer in the Probation Service, was appointed as Guardian ad litem of the children and directed to provide a report. Mr Sean Pontin, Manager of the Fostering and Adoption Service, was also directed to provide a report on the background to the application. In view of the fact that the applicant was unrepresented, the Bailiff requested the Attorney General to appoint an Amicus Curiae. The Attorney appointed Miss Emma Hollywood to whom the Court expresses its gratitude for her thorough researches and helpful submissions.
3. The relevant statutory provision for these purposes is contained in Article 11(3) of the Adoption (Jersey) Law 1961 ("the 1961 Law") which provides:-
4. That provision replicated a similar provision in the Adoption of Children (Jersey) Law 1947 which was repealed by the 1961 Law. Neither of these provisions has been the subject of judicial interpretation before.
5. Miss Hollywood could find no explanation either in the Law Draftsman's file or in any report to the States of the rationale for this provision, other than that a similar provision was to be found in the Adoption Act 1958 and in earlier statutes such as the Adoption Act 1950 and the Adoption of Children Act 1926 of the United Kingdom. Section 2(3) of the Adoption Act 1958 provided:-
The provision is, however, notably absent from the Adoption Act 1976, and subsequent statutes dealing with the adoption of children in the United Kingdom.
6. Little assistance is to be drawn from such case law on this point as there is in England and Wales. In Re R M (an infant) (1942) 193 L.T. Jo.7 an adoption order had been made in favour of the putative father of an illegitimate child who had been previously adopted by a Mrs B with the consent of the child's mother. On appeal to the Court of Appeal, the Order of the County Court was set aside on the ground that, under Section 5 of the Adoption of Children Act 1926, all the rights and duties of a natural mother had vested in Mrs B, and a further adoption order could not be made without her consent unless there were special circumstances justifying dispensing with such consent. Furthermore, under Section 2(2) of the Act an adoption order could not be made in favour of a male petitioner except in special circumstances. The fact that the applicant was the putative father was not a special circumstance.
7. In R-v-Liverpool Justices (ex parte) W [1959] 1 All ER 337 an illegitimate female child lived with her mother in the maternal grandmother's home until she was aged five. The mother then went to live with a man L, taking the child with her. The mother married L but died six months after the marriage. Contrary to the wishes of the grandmother, L applied to adopt the child who was still living with him. The report of the Guardian ad litem made no mention of the wishes of the grandmother, who was not made party to the application, and an adoption order in favour of L was made. No reference was made to any special circumstances justifying as an exceptional measure the making of an adoption order. The grandmother applied to the Divisional Court for an Order of Certiorari to quash the order. Certiorari was granted, and the order quashed on the basis that the proper inference from the failure to mention special circumstances was that the Justices had not considered the relevant statutory provision.
8. In his judgment Lord Parker CJ observed that the words of Section 2(2) were Not only must there be special circumstances, but the whole proceeding must be treated as an exceptional measure. No assistance can be found in the judgment, however, as to what might constitute "special circumstances".
9. We agree that the words in Article 11(3) of the 1961 Law are strong words and clearly indicate a pre-disposition on the part of the legislature that an adoption order in respect of a female child should not generally be made in favour of a sole male applicant. We surmise that the rationale for the provision may be twofold. First, there is a risk that a female child might be abused, sexually or otherwise, by a sole male parent. Secondly, the emotional needs of a female child, particularly during and after puberty, may not be so easily addressed by a sole male parent. We must not be taken to be stating that we agree that such a rationale is any longer well founded. It is true that most, but not all, child abusers are male; but that does not mean that every male is a child abuser. Furthermore, the notion that a father is incapable of meeting or procuring that all the emotional needs of a female child are met is no more accurate than the notion that a mother is incapable on her own of meeting the emotional needs of a male child. Times have changed. Men and women are now more often than not equally involved in the care and upbringing of children. None of these generalised prejudices against the capabilities of a father or a mother seems to us any longer to have a place in the Law. The difficulties to which Article 11(3) of the 1961 Law are assumed to relate are merely examples of many different circumstances which ought to be considered by a Court in determining where the best interests of a child lie. We express the hope that the legislature might consider whether this statutory provision ought not to be repealed.
10. We should also record that Article 3 of the 1961 Law provides:-
We do not find it easy to reconcile the provisions of Article 3 with those of Article 11 (3); or, to put it another way, it is not difficult to envisage circumstances in which the imperatives of the two provisions might be in conflict.
11. Counsel for the Attorney General drew our attention to the implications of the European Convention on Human Rights ("the Convention"), and to the Human Rights (Jersey) Law 2000 which incorporates the Convention into domestic law. Article 7 of the Law provides that public authorities may not act in a way which is incompatible with a Convention right. This Court is a public authority. PS is a homosexual. He has a right to respect for his private and family life under Article 8 of the Convention.
12. Counsel submitted that the provisions of Article 11(3) of the 1961 Law raised only a rebuttable presumption that it would not be in the interests of a female child to be adopted by a sole male applicant. She contended that, if the provision were construed as an absolute bar, it was clear that there would be a breach of Convention rights. In Re P (a child) (Adoption: unmarried couples) [2008] UK HL38, [2008] HRLR 37, the House of Lords held that it would be unlawful, and contrary to Articles 8 and 14 of the Convention, to reject a heterosexual couple as prospective adopting parents on the ground only that they were not married.
13. In EB-v-France [2008] 47 EHRR 21 the applicant was a woman in a long term same-sex relationship. Her request to adopt a child was refused by the relevant department on the ground that her partner was not adequately committed to raising a child, and her family situation failed to provide adequate safeguards for the child's development, in particular the presence of male rôle-models. The ECHR did not find it necessary to decide whether the right to adopt was a Convention right under Article 8. It found a breach nonetheless of Article 14 taken with Article 8 in that the applicant's sexuality had ultimately been the decisive factor in refusing the application.
14. Counsel for the Attorney General submitted that Article 11(3) of the 1961 Law could be viewed as having an objective and reasonable justification, i.e. that it pursued a legitimate aim and that there was a reasonable proportionality between the means employed and the aim sought to be realised. We do not find it necessary to decide whether or not this provision is Convention compliant. However, for the reasons given at paragraph 8 above, we have some doubt as to whether an objective and reasonable justification can be shown. Although in a slightly different context, the South African Constitutional Court stated in Du Toit-v-Minister for Welfare and Population Development [2002] 13 VHRC 187, where the prospective adoptive parents were a same-sex couple:-
We think that Article 11(3) of the 1961 Law is prone to the same objection.
15. Be all that as it may, there were in this case special circumstances justifying the making of the adoption order. We will say a little more about the background. Although the applicant is a sole applicant, that is only because the 1961 Law does not permit an application to be made by a same-sex couple. PS is in a stable homosexual relationship with his partner MS. If it had been possible for a joint application to be made, it would have been made. In order to overcome the inhibition against being accorded a responsibility for the upbringing of the children, MS is to apply for a residence order under the Children (Jersey) Law 2002 in his favour.
16. The children have other siblings and were all taken into care in 2004. Their background was troubled and deprived. Their parents were of very low intelligence and, despite considerable efforts by the Children's Service to develop their parenting skills, were simply inadequate to the task. As a result, the children were often unwashed and smelt of body odour and stale urine. Their clothes were dirty and inappropriate to the weather conditions. Their attendance at school was irregular and when they did attend they were unmotivated and aggressive with other children. Both C and D suffered from significant delay in their speech and language development. Such was their condition when eventually taken into care at the beginning of 2004. They were neglected and beyond the control of their parents. A permanent care order was granted against the opposition of the parents on 13th August, 2004. On 22nd December, 2005, again against the opposition of the parents, the children were freed for adoption.
17. It proved impossible, unsurprisingly, to find a single family to adopt the five children involved, and it was decided to divide them into groups. C and D are twins, now aged nine, and it was obviously important to keep them together. Even so, it proved difficult to find prospective adopters. It was only in April 2008 that C and D were matched with the applicant PS and his partner MS, and the children were placed with them.
18. The Court had the benefit of a number of reports, and in particular the reports of Mrs Whittaker and Mr Pontin. We also heard evidence from PS and from MS. We think that the justifying a departure from the general rule can be summarised as follows:-
(i) It is significant that C and D are twins. They should clearly not be separated. Although there is nothing in law to prevent the applicant PS from adopting the male child D, all other things being equal, such a course of action would be thwarted if he could not also adopt the female child C.
(ii) If we are right in our supposition that part of the rationale for the statutory provision in question is the risk that a male applicant might abuse a female child, that factor does not arise here. PS is a homosexual. Ironically, if either child were to be at risk (and we do not suggest that they are), it would be the male child D in respect of whom there is no statutory inhibition.
(iii) As mentioned above, the children are now aged nine and have a troubled history of neglect and deprivation. Although the last eight months have been a time of unparalleled stability for them, they are not yet out of the wood. They present a number of problems. Children from families with learning difficulties are not easy to place with adopters.
(iv) The parenting abilities of PS (and his partner MS) appear to be exceptional. Since taking the children into his home, PS has given up his job in the finance industry in order to devote his time to them. He has become a volunteer helper at the children's school, and is highly regarded there. He impressed us with having a perceptive and realistic approach to the task of bringing up children. He sets fair and appropriate boundaries so that the children know what is acceptable behaviour and what is unacceptable. The children have ceased to be aggressive and have begun to develop into outward going and happy individuals, confident in the stable and loving environment in which they now live. PS is aware that his homosexuality, and his relationship with MS, may give rise to difficulties for the children as they grow older, and he has thought of strategies to cope with that. Both he and his partner come from large families, both of which are supportive of them. They have close friends who are heterosexuals. There are female members of the extended family and friends who are able and willing to discuss with C any matters which require a female confidante.
19. The report before the Court speaks in glowing terms of the dedication of both PS and his partner to the interests of the children. Mrs Whittaker has recorded her belief that the level of care and insight which PS and his partner bring to the task of parenting is exceptional. She concludes at paragraph 63 of her report:-
"If I, or any other professional in this type of work, were to devise a list of the ideal parenting qualities needed to cope with C and D's complex needs PS and MS would probably meet every point. They have been rigorously assessed for their suitability to care for the children and all the workers with whom I have had contact for this report consider the level of care they provide is first class. These qualities will help them meet the challenges ahead and will help them get through changing times as the children grow up and experience the different needs of teenage years. On the basis of all the information available to me I have no doubt that they will meet these demands".
20. From our observations of PS, and his partner MS, in the witness box, we think that these observations are well founded. It was for all these reasons that we reached the conclusion that there were special reasons justifying as an exceptional measure the making of an adoption order in respect of the child C in favour of PS.
