“The general principles applicable to cases involving child welfare measures (including measures such as those at issue in the present case) are well-established in the Court’s case law and were extensively set out in the case of Strand Lobben and Others , to which reference is made.”
[47] The ECtHR concluded that there was a breach of the Article 8 rights in relation to contact arrangements but not actually the decision to place the children in public care. Therefore, it seems plain to us as submitted by counsel for the Trust in a lengthy and helpful skeleton argument for the first instance judge that the important principles espoused in these cases do not alter but reinforce the test to be applied in determining whether a plan of adoption for a child is compliant with the State’s duties under Article 8 of the Convention.
[48] This European jurisprudence points to the fact that a judge when looking at whether to free a child for adoption must consider the proportionality of the intervention. He or she can do this when considering the best interests test found in Article 9 of the 1987 Order or as most family judges do when considering compliance with Article 8 of the ECHR. Either way any family judge dealing with a freeing for adoption case must establish that the interference is necessary, in accordance with law and proportionate to the legitimate aim of establishing the permanent living arrangements for a child in care.
[49] Unfortunately, the judgment in this case contains no analysis of the European jurisprudence. This is notwithstanding the fact that the judge specifically alerted counsel to the Norwegian cases and counsel then filed comprehensive legal submissions. If the judge had set out an examination of the submissions made by counsel he would, in fact, have developed his analysis to include consideration of the best interests of the child. If he had taken this course, we think that he would also have understood how in this case the balance indisputably fell in favour of adoption on the basis of Joy’s best interests.
[50] Finally, we cannot agree with how the judge dealt with contact issues. True it is that contact reduces on adoption however it also reduces in long-term fostering arrangements. In this jurisdiction we have a strong tradition of supporting open adoption and have seen the benefits it can bring by providing a child with a sense of stability whilst allowing a child to understand his or her origins. It also allows birth parents and siblings to be reassured by keeping a link. Adoption is a different legal arrangement which is best for some children. It should not be prevented on the basis of reduced contact if it is ultimately what is best for a child.
Overall conclusion
[51] We consider that the judge was wrong in refusing to free this child for adoption for the reasons we have given. In our view Joy is a child whose best interests are clearly served by adoption rather than long term foster care. If the correct balancing exercise had been undertaken, we do not think that the judge would have reached the opposite conclusion.
[52] When concluding the freeing order, we were told that there was a large measure of agreement between the Trust, the Guardian and the parents as to the frequency of post adoption contact. We do not expect there will be a major conflict in this case in relation to that, but it will be finalised at the adoption hearing by which stage the post freeing reduction will have taken place and all parties including the Guardian can comment on the most appropriate arrangements going forward.
[53] Accordingly, we formally record that we allow this appeal from the decision of the judge, substituting a freeing order. We remit the case for the adoption hearing to take place before the High Court which we would like to be concluded before the end of the year before O’Hara J.