In a complex case called R. AND H. v. THE UNITED KINGDOM, involving several children and a parent who continues to battle alcoholism (but with varying and often high degrees of success), Baroness Hale continues to stand out as a judge with innate common sense and a positive understanding of the law (if we may say so) as well as an obvious passion for children, a quality not readily discernible in many of our family judges nor amongst other professionals in the field.
The case essentially revolves around a complaint made by biological parents that their rights under Article 8 had been breached by virtue of a freeing order being made and contact being severed between them and their child and that it was wrong for a freeing order to be made before an adoption order had been granted. At its heart lay the various presumptions being made by overseeing authorities including the parents’ reactions to an adoption order (which would impact on the decision to sever contact) and the very delicate balance between parental contact and the welfare of the child.
Baroness Hale, who dissented, says in her judgment:
“In taking the view that the applicants could frustrate an adoption by behaving so badly that no-one would agree to post-adoption contact, the trial judge had placed undue weight on an irrelevant consideration when deciding that the parents were unreasonably withholding their consent. The evidence was very clear that contact would only be in the best interests of the child if the applicants behaved well and did not use it to undermine the placement. The applicants had not sought to use their contact to undermine N’s placement. Nor, despite the view which he had formed of the desirability of post adoption contact, did the trial judge consider whether the court could, at that stage, promote this, for example by preserving the parents’ position after a freeing order”.
Baroness Hale also goes on to say:
“It is not enough for the court to decide in a vacuum whether ‘adoption’ is in the best interests of the child. It must decide what sort of adoption will best serve her interests. If the court takes the view that some form of open adoption will be best, then it will have to take that into account in deciding whether it will accord with its most important consideration, the welfare of the child, to make an order freeing the child for adoption before there is any evidence available of the efforts made to secure the right sort of adoptive placement and to prepare both families for it. The court may, of course, take the view that the need to free the child for adoption is so pressing that this should be done even if it is not yet known whether an open adoption will be possible. But the need to free the child for adoption is different from the need for the child to be adopted. It may be premature to free a child for adoption even though it would not be premature to make an adoption order.”
A very good synopsis of this case can be found on 1 Crown Office Row’s website, written by Rosalind English and whilst Researching Reform tends to agree with the dissenting views of Baroness Hale and Judge Kaladyieva, the summary is excellent and offers a well-rounded perspective of the issues.
The vacuum Baroness Hale touches upon, is the elephant in the room. For making that elephant visible, Researching Reform makes Baroness Hale our Judge of the Week.