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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (A Child)  EWCA Civ 1535 (24 November 2010)
Cite as:  1 FCR 342,  1 FLR 2153,  EWCA Civ 1535,  Fam Law 221
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ON APPEAL FROM PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE HOLMAN)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MUNBY
MR JUSTICE COLERIDGE
|IN THE MATTER OF W (a Child)|
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Mr Howling (instructed by London Borough of Lambeth Legal Services) appeared on behalf of the First Respondent, the local authority.
Mr Douglass (instructed by Charles Ete and Co) appeared on behalf of the Second Respondent, the mother.
Crown Copyright ©
Lord Justice Thorpe:
"17. In this case an adoption order has indeed been made which is currently valid and effective, so by virtue of section 21(4) the placement order no longer 'continued in force' after 24 March 2010 and on that date, by virtue of section 46(2), the prior parental responsibility was 'extinguished'. If I considered that fro some reason (e.g. total want of jurisdiction) the existing adoption order is and always has been 'void' or a 'nullity', then it would logically and conceptually follow that the placement order had not ceased to continue in force, and the prior parental responsibility had not been extinguished. But it is much less clear what happens if the currently valid adoption order is set aside as an exercise of discretion and, in truth, there is a statutory lacuna in that no statutory provision is made for the extremely rare and exceptional situation where a valid adoption order may later be set aside.
18. I had much helpful argument and submissions on the point from both Mr. Howling and from Mr. Michael Sherwin on behalf of the adopters. During that argument we all considered various metaphors. I have since concluded that the use of metaphors in a situation such as this can mislead. We spoke during the hearing of whether a fire which has been 'extinguished' can reignite. One might have spoken of the impossibility of unscrambling an egg, but another metaphor might be that of pieces on a chess board. When the adoption order was made the pieces were rearranged, and some of them (e.g. the mother) were removed, but that does not make it impossible to reinstate them in their former positions.
19. In the face of a statutory lacuna, but eschewing all metaphors, it seems to me permissible, pragmatic and most purposive to the statutory mechanism to hold, as I now do, that if the adoption order is set aside or 'voided' then the legal position would revert to what it was immediately preceding the making of that adoption order: viz, the placement order would again be in force; parental responsibility would again be held as it was at that date; and the other consequences of placement under sections 28, 29 and 34 of the Act would resume."
"A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave."
Section 47(7) provides that:
"The court cannot give leave under subsection … (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made."
"21. Applying these provisions to the facts and circumstances of this case, I conclude as follows. If the current adoption order is set aside but no leave is given to the mother under section 47(5) to oppose the making of an adoption order, then she could not 'oppose' the rehearing of the revived or persisting adoption application and the adopters would be able to rely on the second condition under section 47(4). Paragraph (a) would remain true. Paragraph (b) would remain true: at the time J was placed with them he was placed under a placement order which was then subsisting. Paragraph (c) would remain true, for unless she obtains leave the mother may not oppose the making of the adoption order. If, however, the mother were to be given leave to oppose under section 47(5) (if the requirement under section 47(7) is satisfied) then the second condition would be displaced or cease to be met because she would oppose and paragraph (c) would no longer be satisfied. At that point the adopters would have to rely instead on the first condition under section 47(2) and persuade the court that it should be satisfied that the mother's consent should be dispensed with under paragraph (c) of that subsection, applying the test under section 52(1)(a), namely, that the welfare of the child requires the consent to be dispensed with.
22. In the light of this analysis Mr. Howling has persuaded me that, however great or unfair the injustice to the mother that she was not sent the required notice, it is in reality pointless to set aside the existing adoption order UNLESS I am persuaded that I should at the same time give leave to the mother under section 47(5) to oppose the making of an adoption order, which was the second issue listed before me by virtue of the second limb of paragraph 2 of the order of 17 August 2010 to which I have already referred. It is pointless to set aside simpliciter without granting leave, for the only effect would be to prolong the delay, agony and disruption for the child and the considerable further expense (all to public funds) when all the mother could do would be to attend and in some way be heard upon the rehearing of the adoption application, but not oppose it. On the other hand, if I do consider that the mother should even now have leave to oppose, then it would really inevitably follow (on the facts of this particular case) that I should exercise the discretion to set aside the existing order and order a rehearing. If the court is satisfied to the appropriate test that there are grounds for defending, then it would be unjust to the mother and, indeed, contrary to the long term best interests of the child himself, to deny her the opportunity of defending which she would, on that hypothesis, have been given if she had been correctly served."
"Firstly, [judges] need to be satisfied on the facts of the case that there has been a change in circumstances since the order was made which is material, and of a nature and degree which is sufficient to open the door to a consideration by the court of the exercise of its discretion to give the parents leave to defend. If the court finds such a change in circumstances, the second stage is reached and the question of leave falls to be decided by the application of section 1 of the 2002 Act to the facts of the case. The paramount consideration of the court must be the child's welfare throughout his or her life."
"He made learn later, if not sooner, that when he was adopted his mother was not given any notice of the hearing or (save for what Ms. Bingham said on 26 January 2010) of the proceedings. He may seek out his mother and his birth family. He may bitterly regret that the possibility of his returning to live with his mother and in contact with his wider birth family was not properly investigated after she had kicked her drugs habit and rehabilitated."
"…I have concluded that there is a real possibility (I do not say probability) that after due investigation, assessment and reconsideration a court will conclude that he can even now return to his mother and should not be adopted."
"On the information that is before the court it seems entirely improbable that this mother could persuade the court not only that there had been a change of circumstances sufficient to justify giving her leave to oppose the adoption but also that the court would hold that to give her leave was in the children's best interests (the test that has to be applied)…"
Lord Justice Munby:
Mr Justice Coleridge:
Order: Appeal allowed