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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B-S (Children), Re [2013] EWCA Civ 1146 (17 September 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/1146.html Cite as: [2014] WLR 563, [2014] 1 FLR 1035, [2013] 3 FCR 481, [2013] WLR(D) 348, [2013] Fam Law 1515, [2014] 1 WLR 563, [2013] EWCA Civ 1146 |
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ON APPEAL FROM CHELMSFORD COUNTY COURT
Mrs Justice PARKER
Strand, London, WC2A 2LL |
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B e f o r e :
SIR JAMES MUNBY PRESIDENT OF THE FAMILY DIVISION
and
LADY JUSTICE BLACK
____________________
Re  B-S (Children) |
____________________
Mr Alex Verdan QC (instructed by Baxter Harries Solicitors and Essex County Council) for the respondents (the adopters and the local authority)
Hearing date : 22 July 2013
____________________
Crown Copyright ©
Sir James Munby President of the Family Division :
Re B-S (Children) [2013] EWCA Civ 813), from an order dated 7 May 2013 made by Parker J sitting in the Chelmsford County Court. Parker J refused a mother's application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in relation to her two children. At the conclusion of the argument we were satisfied that the appeal had to be dismissed and informed the parties accordingly. We have taken some time to put our reasons in writing because the appeal not merely requires us to determine an important question of law as to the proper application of section 47(5); it also raises some very significant matters of more wide-reaching importance.
The background facts
removed from the mother's care. In October 2011 they were made the subject of care and placement orders, the court dispensing with the mother's consent in accordance with section 52(1)(b) of the 2002 Act. Contact between the mother and the children ceased in December 2011. The children were placed with prospective adopters in April 2012. An application for adoption followed in 2013. It was listed before Parker J on 7 May 2013. The mother applied under section 47(5) of the Act for leave to oppose the adoption. The basis of her application was that there had been what MacFarlane LJ described as "an astonishing change of circumstances" since the making of the care and placement orders. Parker J gave a full judgment explaining why she refused the mother's application and then proceeded to make adoption orders. We return below to consider Parker J's reasoning. Parker J refused the mother permission to appeal.
The appeal
relied on. He was concerned that the full court should have the opportunity of considering the then very recent decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. In particular he thought that the test in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, might need to be reconsidered in the light of Re B. He indicated (para 10) that there was a potential here for what he called a fundamental review of the test to be applied to applications of this sort for leave to oppose adoption. He questioned (para 18) whether some of what had been said in Re W was still tenable in the light of what the Supreme Court had subsequently said in Re B. He accordingly gave permission to appeal (para 19) "so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level."
The statutory framework
respectively of the 2002 Act.
requires" the consent to be dispensed with: section 52(1). In deciding whether or not to make a placement order the paramount consideration of the court must be the child's welfare "throughout his life": section 1(2). The court must have regard to the 'welfare checklist' in section 1(4). So far as material for present purposes a placement order continues in force until it is revoked under section 24 or an adoption order is made: section 21(4).
revocation of a placement order must first be given leave to apply: section 24(2)(a). The court "cannot" give leave "unless satisfied that there has been a change in circumstances since the order was made": section 24(3). There is therefore a two-stage process: Has there been a change in circumstances? If so, should leave to apply be given?
Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069. At the second stage, the child's welfare is relevant but not paramount: M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093. The question for the court is "whether in all the circumstances, including the mother's prospect of success in securing revocation of the placement order and T's interests, leave should be given": NS-H v Kingston upon Hull City Council and MC [2008] EWCA Civ 493, [2008] 2 FLR 918, para 27.
revoke a placement order comes to an end when the child is placed for adoption: section 24(2)(b). Thereafter there is no opportunity for a parent to challenge the process until an application for an adoption order is issued: M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093, Re F (Placement Order) [2008] EWCA Civ 439 [2008] 2 FLR 550.
by sections 42(3)-(5).
"(1) An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc consent).
(2) The first condition is that, in the case of each parent or guardian of the child, the court is satisfied –
(a) that the parent or guardian consents to the making of the adoption order,(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or(c) that the parent's or guardian's consent should be dispensed with.
(3) A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.
(4) The second condition is that –
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,(b) either –(i) the child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old, or(ii) the child was placed for adoption under a placement order, and(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
…
(7) The court cannot give leave under subsection (3) or (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."
revoked, the adoption application was proceeding under "the second condition": see section 47(4)(b)(ii). Had the mother been given leave to oppose, the matter could no longer have proceeded under that condition: see section 47(4)(c). It would necessarily have had to proceed under "the first condition". As McFarlane LJ put it (Re B-S [2013] EWCA Civ 813, para 1 1):
"The effect if leave is given to oppose is that the case can no longer proceed as it was doing under "the second condition" in s 47(4), and the adoption application would fall to be determined at a full hearing under which the "first condition" in s 47(2) would be in play, with the question of whether the child's welfare
We agree.
return in due course to consider the precise nature of the exercise which the court has to undertake in considering an application under section 47(5). Here we need note only that, in contrast to the somewhat analogous process under section 24(2), on an application under section 47(5) the child's welfare is paramount: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069, M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093.
Adoption – the wider context
recent cases before appellate courts which we refer to below, one can sense serious concerns and misgivings about how courts are approaching cases of what for convenience we call 'non-consensual' as contrasted with 'consensual adoption'; that is, cases where a placement order or adoption order is made without parental consent. Most frequently, parental consent is dispensed with in accordance with section 52(1)(b), on the footing that the welfare of the child requires the consent to be dispensed with. But we must not forget the not inconsiderable number of cases where parental consent is dispensed with because the parent lacks capacity.
Adoption – fundamental principles
Regrettably, the continuing lack of attention to what has been said in previous judgments necessitates our use of plain, even strong, language.
relevant passages from three key decisions, K and T v Finland (2001) 36 EHRR 18, R and H v United Kingdom (2012) 54 EHRR 2, [2011] 2 FLR 1236,[1] and YC v United Kingdom (2012) 55 EHRR 967, are set out by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The overarching principle remains as explained by Hale LJ, as she then was, in Re C and B [2001] 1 FLR 611, para 34:
"Intervention in the family may be appropriate, but the aim should be to
To this we need only add what the Strasbourg court said in YC v United Kingdom (2012) 55 EHRR 33, para 134:
"family ties may only
remembered, as Baroness Hale pointed out in Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, para 34, that the United Kingdom is unusual in Europe in permitting the total severance of family ties without parental consent.
requires" this. "Require" here has the Strasbourg meaning of necessary, "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable": Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, paras 120, 125. This is a stringent and demanding test.
been spelt out very recently by the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. The significance of Re B was rightly emphasised in two judgments of this court handed down on 30 July 2013: Re P (A Child) [2013] EWCA Civ 963, para 102 (Black LJ), and Re G (A Child) [2013] EWCA Civ 965, paras 29-31 (McFarlane LJ). As Black LJ put it in Re P, Re B is a forceful reminder of just what is required.
Re B is striking. Different words and phrases are used, but the message is clear. Orders contemplating non-consensual adoption – care orders with a plan for adoption, placement orders and adoption orders – are "a very extreme thing, a last resort", only to be made where "nothing else will do", where "no other course [is] possible in [the child's] interests", they are "the most extreme option", a "last resort – when all else fails", to be made "only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do": see Re B paras 74, 76, 77, 82, 104, 130, 135, 145, 198, 215.
read in conjunction with s 1(3)(g), and now similarly embodied in s 1(6) of the 2002 Act, that the court should adopt the 'least interventionist' approach. As Hale J, as she then was, said in Re O (Care or Supervision Order) [1996] 2 FLR 755, 760:
"the court should begin with a preference for the less interventionist rather than the more interventionist approach. This should be considered to be in the better interests of the children … unless there are cogent
Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, para 126:
"Section 52(1) is concerned with adoption – the making of either a placement order or an adoption order – and what therefore has to
Re B.
Re B paras 77, 104), although the child's interests in an adoption case are paramount, the court must never lose sight of the fact that those interests include being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare make that not possible.
Re B para 77), as required by section 1(3)(g) of the 1989 Act and section 1(6) of the 2002 Act, the court "must" consider all the options before coming to a decision. As Lady Hale said (para 198) it is "necessary to explore and attempt alternative solutions". What are these options? That will depend upon the circumstances of the particular cases. They range, in principle, from the making of no order at one end of the spectrum to the making of an adoption order at the other. In between, there may be orders providing for the return of the child to the parent's care with the support of a family assistance order or subject to a supervision order or a care order; or the child may be placed with relatives under a residence order or a special guardianship order or in a foster placement under a care order; or the child may be placed with someone else, again under a residence order or a special guardianship order or in a foster placement under a care order. This is not an exhaustive list of the possibilities; wardship for example is another, as are placements in specialist residential or healthcare settings. Yet it can be seen that the possible list of options is long. We return to the implications of this below.
Re B para 105), the court's assessment of the parents' ability to discharge their responsibilities towards the child must take into account the assistance and support which the authorities would offer. So "before making an adoption order … the court must be satisfied that there is no practical way of the authorities (or others) providing the requisite assistance and support." In this connection it is worth remembering what Hale LJ had said in Re O (Supervision Order) [2001] EWCA Civ 16, [2001] 1 FLR 923, para 28:
"It will be the duty of everyone to ensure that, in those cases where a supervision order is proportionate as a
That was said in the context of supervision orders but the point is of wider application.
reason to suspect that resource issues may be affecting the local authority's thinking.
Adoption – our concerns
real concerns, shared by other judges, about the recurrent inadequacy of the analysis and reasoning put forward in support of the case for adoption, both in the materials put before the court by local authorities and guardians and also in too many judgments. This is nothing new. But it is time to call a halt.
Re V (Children) [2013] EWCA Civ 913 (judgment of Black LJ), Re S, K v The London Borough of Brent [2013] EWCA Civ 926 (Ryder LJ), Re P (A Child) [2013] EWCA Civ 963 (Black LJ) and Re G (A Child) [2013] EWCA Civ 965 (McFarlane LJ). In the last of these, McFarlane LJ was explicit (para 43):
"The concerns that I have about the process in this case are concerns which have also been evident to a greater or lesser extent in a significant number of other cases; they are concerns which are now given sharper focus following the very clear wake-up call given by the Supreme Court in
Adoption – essentials
Adoption – essentials: (i) proper evidence
realistically possible and must contain an analysis of the arguments for and against each option. As Ryder LJ said in Re R (Children) [2013] EWCA Civ 1018, para 20, what is required is:
"evidence of the lack of alternative options for the children and an analysis of the evidence that is accepted by the court sufficient to drive it to the conclusion that nothing short of adoption is appropriate for the children."
The same judge indicated in Re S, K v The London Borough of Brent [2013] EWCA Civ 926, para 21, that what is needed is:
"An assessment of the benefits and detriments of each option for placement and in particular the nature and extent of the risk of harm involved in each of the options".
McFarlane LJ made the same point in Re G (A Child) [2013] EWCA Civ 965, para 48, when he identified:
"the need to take into account the negatives, as well as the positives, of any plan to place a child away from her natural family".
We agree with all of this.
Re V (Children) [2013] EWCA Civ 913, para 88:
"I have searched without success in the papers for any written analysis by local authority witnesses or the guardian of the arguments for and against adoption and long term fostering … It is not the first time that I have
In the Plymouth case she had said this (para 47):
"In some
reasoned recommendation". These are essential if the exacting test set out in Re B and the requirements of Articles 6 and 8 of the Convention are to be met. We suggest that such an analysis is likely to be facilitated by the use – which we encourage – of the kind of 'balance sheet' first recommended by Thorpe LJ, albeit in a very different context, in Re A (Male Sterilisation) [2000] 1 FLR 549, 560.
Re S, K v The London Borough of Brent [2013] EWCA Civ 926, where an appeal against the making of a care order with a plan for adoption was successful because neither the evidence nor the judge's reasoning was adequate to support the order. It is a lengthy passage but it merits setting out almost in full (paras 22-26):
"22 … what was the evidence that was available to the judge to support her conclusion? … Sadly, there was little or no evidence about the
23 The allocated social worker in her written statement
"a permanent placement where her on-going needs will be met in a safe, stable and nurturing environment. [S]'s permanent carers will need to demonstrate that they are committed to [S], her safety, welfare and wellbeing and that they ensure that she
Adoption will give [S] the security and permanency that she
24 With
25 The independent social worker did not support adoption or
"Special Guardianship Order: This is the application before the Court and which would afford [S] stability, in terms of
Adoption: [S] could be placed with a family where she should experience stability and security without conflict. This may be the best option for [S] if current concerns cannot be
26 In order to choose between the options the judge needed evidence which was not provided. The judge's conclusion was a choice of one option over another that was neither
Adoption – essentials: (ii) adequately reasoned judgments
reasoned judgment by the judge. We have already referred to Ryder LJ's criticism of the judge in Re S, K v The London Borough of Brent [2013] EWCA Civ 926. That was on 29 July 2013. The very next day, in Re P (A Child) [2013] EWCA Civ 963, appeals against the making of care and placement orders likewise succeeded because, as Black LJ put it (para 107):
"the judge … failed to carry out a proper balancing exercise in order to determine whether it was necessary to make a care order with a care plan of adoption and then a placement order or, if she did carry out that analysis, it is not apparent from her judgments. Putting it another way, she did not carry out a proportionality analysis."
She added (para 124): "there is little acknowledgment in the judge's judgments of the fact that adoption is a last resort and little consideration of what it was that justified it in this case."
relation to the nature of the judicial task we draw attention to what McFarlane LJ said in Re G (A Child) [2013] EWCA Civ 965, paras 49-50:
"In most child care cases a choice will fall to be made between two or more options. The judicial exercise should not be a linear process whereby each option, other than the most draconian, is looked at in isolation and then
The linear approach … is not apt where the judicial task is to undertake a global, holistic evaluation of each of the options available for the child's future upbringing before deciding which of those options best meets the duty to afford paramount consideration to the child's welfare."
We need not quote the next paragraph in McFarlane LJ's judgment, which explains in graphic and compelling terms the potential danger of adopting a linear approach.
Re G para 51) multi-faceted evaluation of the child's welfare which takes into account all the negatives and the positives, all the pros and cons, of each option. To quote McFarlane LJ again (para 54):
"What is
respectfully endorse:
"a process which acknowledges that long-term public care, and in particular adoption contrary to the will of a parent, is 'the most draconian option', yet does not engage with the very detail of that option which
relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153.
Adoption – the current reforms to the family justice system
reforms to the family justice system and, in particular, with the revised Public Law Outline.
reasoning accords entirely with a central part of the reforms. In his 'View from the President's Chambers' the President has repeatedly stressed the need for local authority evidence to be more focused than hitherto on assessment and analysis rather than on history and narrative, and likewise for expert reports to be more focused on analysis and opinion: see 'The process of reform: the revised PLO and the local authority', [2013] Fam Law 680, and 'The process of reform: expert evidence', [2103] Fam Law 816. What the court needs is expert opinion, whether from the social worker or the guardian, which is evidence-based and focused on the factors in play in the particular case, which analyses all the possible options, and which provides clear conclusions and recommendations adequately reasoned through and based on the evidence.
requirement, soon to be imposed by statute, that care cases are to be concluded within a maximum of 26 weeks. Critical to the success of the reforms is robust judicial case management from the outset of every care case. Case management judges must be astute to ensure that the directions they give are apt to the task and also to ensure that their directions are complied with. Never is this more important than in cases where the local authority's plan envisages adoption. If, despite all, the court does not have the kind of evidence we have identified, and is therefore not properly equipped to decide these issues, then an adjournment must be directed, even if this takes the case over 26 weeks. Where the proposal before the court is for non-consensual adoption, the issues are too grave, the stakes for all are too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.
Section 47(5) of the 2002 Act
relation to Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, identified for us by McFarlane LJ. Before coming to Re W itself, however, we need to look at Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069, also a decision on section 47(5).
Section 47(5) of the 2002 Act – Re P
Re P the judgment of the court (Thorpe and Wall LJJ and Hedley J) was given by Wall LJ. He explained (para 26) that section 47(5) involves a two stage process:
"In our judgment, analysis of the statutory language in ss 1 and 47 of the 2002 Act leads to the conclusion that an application for leave to defend adoption proceedings under s 47(5) of the 2002 Act involves a two-stage process. First of all, the court has to
rejected the submission that the change in circumstances had to be "significant" and continued (para 30):
"The change in circumstances since the placement order was made must … be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings."
He added (para 32):
"We do, however, take the view that the test should not
rehearsed the provisions of section 1 of the 2002 Act, Wall LJ said this (para 35):
"Thus, even if the parents are able, on the facts, to identify a change in circumstances sufficient to make it appropriate for the judge to consider whether or not to exercise his discretion to permit the parents to defend the adoption proceedings, the paramount consideration of the court in the actual exercise of the discretion must be the welfare of S throughout her life and, in that context, the court must have
Re P the parents had failed in their application under section 47(5). In the course of explaining why their appeal had to be dismissed, Wall LJ said this (para 47):
"when exercising his discretion under s 47(5) of the 2002 Act the judge was fully entitled – indeed bound – to give considerable weight to the fact that, from the date of the care order (May 2006) until the date of the hearing of the application for leave to defend the adoption proceedings (April 2007), a period of nearly a year, the plan for S had been adoption; that the plan had, moreover, been implemented
Section 47(5) of the 2002 Act – Re W
Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, Holman J had granted a mother leave to oppose the making of an adoption order in accordance with section 47(5). The adopters, supported by the local authority, appealed. This court (Thorpe and Munby LJJ and Coleridge J) allowed the appeal. The main judgment was given by Thorpe LJ. The core of his reasoning is to be found in two paragraphs. First (para 18):
"once an adoption application is challenged by the natural parent at a very late stage, it is easy to see that to avert the progress, the completion of the progress to adoption, the applicant has to clear three fences which can
We do not read that as in any way contradicting what had earlier been said in Re P, to which of course Thorpe LJ had been party.
being sought under section 47(5), there is the two stage process identified by Wall LJ in Re P and by Thorpe LJ here in Re W. Thorpe LJ's reference here to the third stage is, as he makes clear, to the fence that the parent has to surmount, if given leave, when opposing the making of the adoption hearing at the substantive hearing. As McFarlane LJ said, when giving permission to appeal in the present case (Re B-S (Children) [2013] EWCA Civ 813, para 15):
"it seems plain to me in
"where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under s 47(5), the judge must have great
That is a reference to what Lord Collins had said in Agbaje v Agbaje [2010] UKSC 13, [2010] 1 AC 628, para 33.
referred (para 26) to the way in which the judge had formulated the issue, which was as follows:
"I have concluded that there is a
He contrasted that with what McFarlane J, as he then was, had said in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para 15:
"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:
Thorpe LJ continued (para 28):
"The language of McFarlane J seems to me much more to
Re P. There is a two stage process. In deciding how discretion is to be exercised at the second stage the court must have regard to the parent's ultimate prospects of success if leave to oppose is given. In deciding how discretion is to be exercised the child's welfare is paramount; that being so one can well see why the parent's prospects must be more than just fanciful and must be solid – for how otherwise can it be consistent with the child's welfare to allow matters to be reopened?
"under the statutory
With that there can be absolutely no quarrel. It brings out the unhappy fact – unhappy, that is, for a parent – that the parental right to apply under section 24(2) for leave to revoke a placement order comes to an end when the child is placed for adoption and that thereafter the parent can do nothing until there is an application for an adoption order. It is the next part which is problematic:
"However, it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that permission will be granted after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application."
return to this in due course.
Re W we should refer to Coleridge J's short concurring judgment (para 30):
"No one can have anything but the profoundest sympathy for this mother who seems to have turned her life round in the course of the last two years and to have conquered her addiction to hard drugs. If the court was in the business of
Re W there has been another case in the Court of Appeal to which we should refer: Re C (A Child) [2013] EWCA Civ 431. It was an appeal against the refusal of the judge to give leave under section 47(5). The facts were very stark. The father, whose application it was, had been deceived by the child's mother and had never seen his son. The child had been placed with adopters in November 2010. The application for an adoption order was made in April 2011. The father's application under section 47(5) was made in October 2011 and was heard by Her Honour Judge Redgrave in February 2012. The appeal was heard in December 2012.
"Before Judge
At this stage a "stringent approach" was
Explaining why the appeal had to be dismissed the President said (para 37):
"Standing back from all the detail, the
Re W of the phrase "exceptionally rare circumstances". He referred to what Lord Neuberger and Lady Hale had said in the paragraphs in Re B to which we have already drawn attention. He continued (para 18):
"Having
"Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged. Those are the very circumstances that trigger the jurisdiction under section 47(5)."
We agree, and add a point to which we have already drawn attention: section 42(2) requires the child to have been living with the prospective adopters for at least 10 weeks before the application for an adoption order can be made.
Section 47(5) of the 2002 Act – fundamentals
Re C, of the word "stringent" to define or describe the test to be applied on an application under section 47(5). Both phrases are apt to mislead, with potentially serious adverse consequences. In the light of Re B they convey quite the wrong message. Neither, in our judgment, any longer has any place in this context. Their use in relation to section 47(5) should cease.
read into the use by McFarlane J in X and Y v A Local Authority (Adoption: Procedure) [2009] EWHC 47 (Fam), [2009] 2 FLR 984, para 15, of the phrase "entirely improbable." We read that as being merely his assessment of the applicant's prospects of success in that particular case. It was not intended as a test and should not be treated as such.
remedy – and a remedy, we stress, that may enure for the benefit not merely of the parent but also of the child. Whilst we can understand what lay behind what Thorpe LJ said, we think that his use of the phrase "exceptionally rare circumstances" carries with it far too great a potential for misunderstanding, misapplication and indeed injustice for safety. The same, if in lesser measure, applies also to the word "stringent". Stringent, as we have said, is a word that appropriately describes the test that has to be surmounted before a non-consensual adoption can be sanctioned. It is not a word that comfortably describes the test that a parent has to meet in seeking to resist such an adoption.
real remedy. Unthinking reliance upon the concept of the "exceptionally rare" runs the risk – a very real and wholly unacceptable risk – of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical efficacy, none of those facts, even in combination, can of themselves justify the refusal of leave.
Section 47(5) of the 2002 Act – the proper approach
Re P, though we fear it may on occasions have been applied too narrowly and indeed too harshly. The only qualification is that the exercise at the second stage is more appropriately described as one of judicial evaluation rather than as one involving mere discretion.
relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.
relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points:
i) Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent's care.
ii) For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.
iii) Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child's welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the "last resort" and only permissible if "nothing else will do" and that, as Lord Neuberger emphasised, the child's interests include being brought up by the parents or wider family unless the overriding requirements of the child's welfare make that not possible. That said, the child's welfare is paramount.
iv) At this, as at all other stages in the adoption process, the judicial evaluation of the child's welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ's 'balance sheet' is to be encouraged.
v) This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.
vi) As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent's grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child's welfare must be if leave to oppose is to be refused.
vii) The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.
viii) The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child "throughout his life". Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions) [1995] 2 FLR 124, 129, that "the court should take a medium-term and long-term view of the child's development and not accord excessive weight to what appear likely to be short-term or transient problems." That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.
ix) Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.
x) We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: "the test should not be set too high, because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable."
return in due course to consider the application of these principles to Parker J's judgment in this case. First, however, we need to consider, in the light of Re B, the approach which we should adopt as an appellate court hearing an appeal against a refusal of leave under section 47(5).
The appellate approach
Re B in various family law contexts has been considered in a number of recent judgments in this court of Black LJ and McFarlane LJ: see Re A (Children) [2013] EWCA Civ 1026, Re V (Children) [2013] EWCA Civ 913, Re P (A Child) [2013] EWCA Civ 963, Re G (A Child) [2013] EWCA Civ 965 and, most recently, Re A (A Child) [2013] EWCA Civ 1104.
Re B yet again, except to note that it leaves undisturbed the approach in case management appeals set out by this court in Re TG (Care Proceedings: Case Management: Expert Evidence) [2013] EWCA Civ 5, [2013] 1 FLR 1250: see Re B para 45 (Lord Wilson). Nor does the new learning in Re B affect the traditional approach to appeals from fact-finding determinations: Re A (Children) [2013] EWCA Civ 1026, para 34.
Re B are conveniently summarised in the judgment of McFarlane LJ in Re G (A Child) [2013] EWCA Civ 965, paras 32-33:
"32 The second aspect of the Supreme Court decision in
33 Moving on from consideration of the s 31 threshold criteria, all five SCJs were agreed that the task of a trial judge making the ultimate determination of whether to make a care order was 'more than to exercise a discretion' (Lord Wilson SCJ, paragraph 45). The trial judge's task is to comply with an obligation under HRA 1998, s 6(1) not to determine the application in a way which is incompatible with the Art 8 rights that are engaged. The majority in the Supreme Court went on from that unanimous position
Re P, para 105:
"Because of the obligation of the trial judge not to determine the matter in a way which is incompatible with article 8 ECHR, the
Re B itself, Lord Neuberger had said this (para 93):
"There is a danger in over-analysis, but I would add this. An appellate judge may conclude that the trial judge's conclusion on proportionality was (i) the only possible view, (ii) a view which she considers was right, (iii) a view on which she has doubts, but on balance considers was right, (iv) a view which she cannot say was right or wrong, (v) a view on which she has doubts, but on balance considers was wrong, (vi) a view which she considers was wrong, or (vii) a view which is unsupportable."
He went on to say that the appeal must be dismissed if the appellate judge's view is in category (i) to (iv) and allowed if it is in category (v) to (vii).
Re B, Re V, Re P and Re G.
Re A, where McFarlane LJ said this (para 43):
"
referred. Like them, we decline any attempt to establish the boundaries of the Re B approach.
revocation of a placement order in accordance with section 24 of the 2002 Act, or leave to oppose the making of an adoption order in accordance with section 47(5) of the 2002 Act, the Re B approach must apply. Both require that an appellate court be able to intervene whenever the judge was 'wrong'. Whether the approach identified in Re B – was the judge wrong? – applies in all cases where the issue for the judge was whether or not to give a family member leave to participate in proceedings under the 1989 Act or the 2002 Act is not something for decision today.
Parker J's judgment
Referring to what Thorpe LJ had said in Re W, Parker J noted that there is a three stage test, with three fences each presenting a higher obstacle. She said that the second and third hurdles "are conflated in one test"; later in the judgment she said they had to be "looked at together." She continued: "In all these cases it is impossible to ignore the facts which gave rise to the children coming into care … It has an effect on them." Having summarised those matters she said:
"It is obvious that the children had terrible experiences … [children] who have had these experiences are going to behave in a way that is sometimes aggressive, unsettled, easily upset … in many
referred to the welfare checklist in section 1(4) and correctly directed herself that the interests of the children must be the paramount consideration.
recognised that adoption "is not to be undertaken without compelling reason." She identified "the risk that the mother might not be able to cope if the care order was discharged" and said "there is a long road to travel." She said that both the mother and the adopters had Article 8 rights which were engaged. She said that the children "have the capacity to understand" that when they were placed there was an expectation of the placement being forever. She said "I accept that adoption is not a universal solution every time a parent is not able to parent a child to a good enough standard." She said she was "struck" by what Coleridge J had said in Re W in the passage we have already quoted. She concluded that it was "entirely improbable" that the mother would ultimately succeed. To embark upon the process would be "utterly devastating" for the adopters. So, she refused the mother leave to oppose.
The grounds of appeal
but submitted that Parker J had been entirely correct to refuse leave to oppose. Indeed, he said, the welfare of the children strongly indicated that leave should not be given.
Ground 1
respect to counsel, nothing in this point. Both principle and the authorities to which we have referred require a court operating a leave filter, including under section 47(5), to have regard to the applicant's ultimate prospects of success. If and insofar as complaint is made that Parker J wrongly conflated the second and third stages in the Re W analysis, we agree, for reasons we have already given, that she was wrong to do so. But we do not think that this error of law in fact vitiated her essential reasoning or her conclusion. We note McFarlane LJ's view (Re B-S (Children) [2013] EWCA Civ 813, para 17) that if this had been the only point he would have been reluctant to grant permission to appeal because, as he put it, and we agree, the judge's general approach to the determination of the issue before her seems to have been more generally in line with authority.
Ground 2
reasons why, despite the admitted change in circumstances, leave to oppose ought not to be given, including, in particular, the children's memories, their at least partial understanding of the current situation, and the risk that giving leave would risk great upset and behavioural regression.
Ground 3
by section 47(5), had to look at the full picture, balancing what the children would, or might, lose if leave to oppose was not granted against what they would, or might, lose if leave to oppose was granted. We have already identified the factors that weighed in particular with the judge. The judge was in our judgment entitled to give the various factors, pro and con, the weight that she chose to attribute to them.
Ground 4
reverting to the original 'harm' issues and placing great weight upon them. This is linked with a complaint that the judge failed to look in any depth at the extent and breadth of the changes since the placement orders were made that were relevant to the adoption application. We cannot agree. The original 'harm' issues, as counsel describes them, were plainly relevant, and given their continuing impact on the children as found by the judge it was clearly open to her to attach considerable weight to them. In relation to the other part of the complaint we repeat what we have already said in relation to ground 2.
Ground 5
representatives time to consider new material produced at the hearing by the local authority, thereby denying her a fair trial. We reject this complaint. The fact is that the mother and her representatives did have time to consider this material. And, importantly, no application was made either for an adjournment or for cross-examination.
Ground 6
real' remedy, since placement is itself a bar to any ability to persuade the court to allow opposition to the making of an adoption order.
repeat, the facts that a parent applying under section 47(5) will always, by definition, be faced with unless the case falls within section 47(4)(b)(i) – that the court has made both a care order and a placement order and that the child is now living with the prospective adopter – cannot of themselves, even in combination, justify the refusal of leave.
real question at the end of the day is whether, having regard to the proper approach to applications under section 47(5) which we have spelt out, it can be said, as Ms Obi-Ezekpazu would have us accept, that Parker J's decision refusing leave to oppose was wrong. In our judgment Parker J was not wrong.
been significant change: the mother's life had "turned round". She recognised that adoption is not "a universal solution" when a parent is not able to give a child good enough parenting and that it "is not to be undertaken without compelling reason." She did not, as Mr Verdan observed, make any reference to Thorpe LJ's "exceptionally rare circumstances" approach. She went through the relevant welfare checklist, recognising correctly that the children's interests were paramount. She did not treat the matter as concluded by the mere fact that the children had been placed successfully for some time.
reverting to their previous "emotionally deregulated" behaviour and that accordingly they needed particularly stability and care; the fact that the elder girl has "unhappy anxious memories" which impinged on her wishes and feelings; and the fact that the children have the capacity to understand the "forever" nature of their adoptive placement. She also identified "the risk that the mother might not be able to cope", saying that "there is a long road to travel." There is no suggestion that those were not findings that Parker J was entitled to make on the evidence.
refused. She was entitled to attach to these factors the weight she did and to conclude that, taken together and in all the circumstances, they meant that in the children's best interests the mother's application had to be dismissed. We cannot say that Parker J was wrong; on the contrary, we consider that she was right.
Conclusion
Note 1 This case, the aftermath of Down Lisburn Health and Social Services Trust and another v H and another [2006] UKHL 36, involved a freeing order under the Northern Ireland equivalent of the Adoption Act 1976 rather than a placement order under the 2002 Act but the principles are the same. [Back]