A Department of Health circular has given natural mothers involved in adoption battles false hope, writes Roger Pearson.
The recent case of the teenage mother who had second thoughts after putting her new-born baby up for adoption but who failed in a High Court Family Division bid to get him back, has focussed attention on the powers of the courts to override the wishes of natural mothers.
It has also pinpointed a major misunderstanding of the law which appears to have been perpetuated by the Department of Health (DoH).
It emerges that a DoH circular relating to adoption contains incorrect information.
The circular advises mothers who put their child up for adoption that they can change their mind at any time until they formally give written consent.
But consent in writing is not necessary. A case at the start of the 1990s, Re T, clarified the provisions of section 27 of the Adoption Act 1974 and made it clear that once a mother has given oral consent, any further moves to get the child back become a matter for the court.
The judgment of Mr Justice Sumner centred on the case of a 19-year-old who discovered she was pregnant two weeks after starting a university course.
She contacted an adoption agency and within two days of her son being born on 3 February last year she gave him up to the agency which initially placed the child with foster parents.
In April, the baby boy went to prospective adopters who the mother had met and he has been with them ever since. However, in July last year the mother decided she wanted her son back.
But the judge took the view that any move, now that the little boy has established bonds with the prospective adopters, would pose too great a threat to him. In those circumstances the judge ruled that the mother, who had instigated court moves for his return, was unreasonably withholding her consent to adoption.
Describing his judgment as a "fearful" one, the judge said he was satisfied a move now would pose too great a risk of disturbance and lasting damage to the little boy.
"The risks to his health and future development are too great. It would be traumatic in the short run and likely to be damaging in the long run," said the judge.
"Any hypothetically reasonable mother would see the strength of this and give her consent to the adoption."
Family law expert Ian Robertson, a senior partner with the Reading firm of Griffiths Robertson, who acted for the adoptive parents in the recent case, hopes the case will make mothers more aware of the difficulties they can face if they change their mind after offering their child for adoption.
Stressing that adoption cases turn uniquely on their own facts, Robertson says: "This case heightens people's need to be aware of how difficult it is to change their mind once they've decided to put a child up for adoption.
"The other issue that emerged is that some adoption agencies have been sending out an old DoH circular which is still in existence and which advises mothers they can change their mind until such time as they formally give written consent to adoption.
"That's not what the law is. This case makes absolutely clear that once an application for adoption is issued it then becomes a matter for the court.
"But I think there is still confusion or has been confusion as to the effect of section 27 of the Adoption Act which says that when an adoption application has been issued with the consent of the parent the child can only be removed with the leave of the court.
"The DoH circular has not been updated to reflect the fact that consent to section 27 does not have to be in writing. It has been clear for a long time that oral consent, which is what there was in this case, is sufficient.
"It is important this point should be made clear in the future to those considering putting children up for adoption."