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Roger Pearson reports on a recent Appeal decision which shows that a mother's needs are no longer sacred in family cases.
At a time when the wishes and views of fathers are carrying far more weight in cases involving children, a new court decision adds strength to father power.
The September Court of Appeal decision in the case of In Re J (A Minor Adoption Order) carries several important pointers for those handling proceedings involving adoption of a child by his natural mother and her new partner. The court allowed an appeal by a father against a county court adoption order granted in respect of his son to the boy's mother and her new husband.
Joanna Watson, one of 18 family law specialists at Guildford-based Hart Brown, represented the child's father in In Re J. She says the case gives valuable guidelines to parents, guardians and courts involved in such disputes.
J's case was described by Lord Justice Thorpe, who was sitting with Lords Justices Otton and Waller, as one of "extraordinary difficulty", which should have been transferred to the High Court rather than a county court.
Five-year-old J's parents were unmarried and parted a year after his birth. Initially his father had weekly contact with him, but then his mother began a new relationship and ultimately married. After she gave birth to a daughter by her husband, she and the husband applied to adopt J.
The adoption order was granted by the county court, mainly on the basis of evidence that the mother was suffering from a state of pathological anxiety which would be worsened if the move to adopt J was refused. J's guardian ad litem had supported adoption, taking the view that the mother and stepfather needed the order for their own sense of security as a family.
A mental health professional who had seen J and his natural father together had, however, recommended that, rather than adoption, a residence order should be made in favour of the mother and stepfather with supervised contact between J and the natural father. This view was supported by the Court Welfare Office and the Schedule 2 report author.
Despite these recommendations, the judge at Guildford County Court granted the adoption order. However, the Court of Appeal has now over-turned that decision.
Lord Justice Thorpe said the county court judge had been wrong to elevate the anxiety of the mother to the level of a key factor. He said that the case was extremely complex and was not open to that sort of simplification.
He also said the opinion of the guardian should not have taken precedence over that of the mental health professional.
Watson says the case sounds several warning notes. First, it asserts that mothers cannot merely plead that they are anxious and need an adoption order for peace of mind.
Second, she says it proves that reasonable objections to an adoption order by a biological father must be taken into consideration.
Third, she says the ruling shows that guardians must not exceed their area of expertise. In this case, the Appeal Court found that the county court judge had failed to properly weigh up the comparative differences between the expertise of the guardian and the mental health professional.