Jennifer Moore, Legal Director, and Melissa Bunting, Solicitor, at Rayden Solicitors acted in this novel and landmark Human Rights Act decision in a step-parent adoption case before the President of the Family Law Division at the Royal Courts of Justice.
Background and novel point of law
The case concerned an application for a step-father to adopt his step-son (herein ‘H’), who was born in 2006 and was therefore aged 17 at the time the proceedings concluded.
H had never had a meaningful relationship with his biological father. His biological father separated from his biological mother before he was born. H’s biological father was not named on H’s birth certificate, and so he did not have Parental Responsibility for H.
The only family H had ever known comprised of his biological mother and his step-father, who his mother had married when he was just 2 years’ old.
Tragically, H’s mother died in 2020. H was left in a precarious position; his step-father had no legal relationship with him and his mother had died.
H shared his wishes and feelings with the Court; he was unequivocal in his view: he wanted to be adopted by the step-father; the only father he had ever known.
Unfortunately, on the face of it, a step-parent adoption was not going to be possible.
Section 51 (2) of the Adoption and Children Act 2002 (‘ACA 2002’) allows for step-parent adoptions and reads as follows:
“51 Adoption by one person
(2) An adoption order may be made on the application of one person who has attained the age of 21 years if the court is satisfied that the person is the partner of a parent to the person to be adopted”.
As H’s mother had tragically died in 2020, the step-father was not a person who “is” the partner of H’s mother. He “was” the partner of H’s mother. He was H’s mother’s Widower.
The difficulty with using a conventional adoption Order, as opposed to an application for a step-parent adoption Order, was the effect of extinguishing H’s legal relationship with his late mother’s family – a conventional adoption Order would have severed his legal relationship with his entire wider maternal family and with his late mother.
The case turned on the question of whether the Court could “read down” under Section 3 of the Human Rights Act 1998 (‘HRA 1998’), so as to, include the words “or a widow/widower of the child’s parent who was the parent’s partner immediately before the parent’s death”.
In H’s case, both he and his step-father both supported the making of a step-parent adoption Order, as did the Local Authority – no party was arguing the counter case- i.e. saying that the Court should not “read down” or considering the potential policy reasons that may have led the President to consider it was not in the public interest to “read down”. Therefore the President appointed a solicitor from CAFCASS Legal to act as an amicus curiae. An Amicus curiae is a lawyer who is not representing a party to the case, but who is appointed to assist the Court; in this case, that meant considering the counter case/ case against H and his step-father.
Outcome
The Final Hearing was listed on 12 July 2023.
As mentioned above, H’s wishes and feelings were unequivocal, he wanted the step-parent adoption to succeed; He wanted the man he knew and saw as his father to be his father in law, without having to sacrifice his legal relationship with his late birth mother.
The Local Authority supported the step-parent Adoption Order.
The amicus noted that “it is unlikely that Parliament would have intended for a child to be placed at a disadvantage as a result of the tragic and sad death of his/her parent”.
Accordingly, all four Counsel (namely, counsel acting on behalf of the step-father, on behalf of H, on behalf of the Local Authority and Counsel instructed as an amicus) invited the Court to find, having regard to the step-parent and H’s Article 8 Rights (right to a private and family life under the European Convention of Human Rights), it is possible to read down section 51 (2) ACA 2002 to include the words “or a widow/widower of the child’s parent who was the parent’s partner immediately before the parent’s death”.
The President was persuaded that the step required to “read down” additional words into section 51 (2) of the ACA 2002 in order to grant the application, using the jurisdiction of Section 3 of the HRA 1998 was entirely justified so as to allow the application to proceed to the making of an order, notwithstanding the death of H’s mother.
In practice this means that H and children in H’s shoes will not be faced with the choice of having their relationship with their step-parent legally recognised via an adoption Order and severing their legal relationship with their late biological parent and all of their extended family on that side, or simply never having their relationship with their step-parent legally recognised.
This landmark decision allowed H to have both – i.e. he maintained his relationship with his late birth mother and extended maternal family, and was adopted by his step-father.
Novel Points of Law
The President’s Judgement, which can be accessed here, has amended the interpretation of section 51 (2) of the Adoption and Children Act 2002 to include additional words, namely, “or a widow/widower of the child’s parent who was the parent’s partner immediately before the parent’s death”. The Judgment, therefore, paves the way for future step-parent adoptions by widows or widowers.
If you are affected by the issues raised in this article, or would like further advice on this subject please contact our team of family law experts.
