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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 16
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ON APPEAL FROM THE FAMILY COURT AT MANCHESTER
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LEGGATT
LORD JUSTICE ARNOLD
| W (A Child: Leave to Oppose Adoption)
Danish Ameen (instructed by Manchester City Council) for the Respondent Local Authority
Lukhvinder Kaur (instructed by Bromleys Solicitors LLP) for the Respondent Father
Soria Kajue (instructed by KHF Solicitors Ltd) for the Respondent Mother
Hearing date: 16 January 2020
Crown Copyright ©
Lord Justice Peter Jackson:
The legal context
"(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,
(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."
Accordingly, the parent of a child who has been placed for adoption under a placement order can only oppose the making of an adoption order with the leave of the court, granted in accordance with ss. (7).
"(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child."
The abilities and perspective of parents therefore remains a consideration for the court considering an adoption application, regardless of whether leave to oppose has been given.
"32. We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents in the position of S's 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. We therefore take the view that whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application."
"13. So one can see the crucial effect of a parent being given leave to oppose under section 47(5): not merely is the parent able to oppose the making of an adoption order, but the parent, notwithstanding the making of the earlier placement order, is entitled to have the question of whether parental consent should be dispensed with considered afresh and, crucially, considered in the light of current circumstances (which may, as in the present case, be astonishingly different from those when the placement order was made)."
"59. … 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?"
"70. Section 47(5) is intended to afford a parent in an appropriate case a meaningful remedy – and a remedy, we stress, that may enure for the benefit not merely of the parent but also of the child. …
71. Parliament intended section 47(5) to provide a 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
72. Subject only to one point which does not affect the substance, the law, in our judgment, was correctly set out by Wall LJ in 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.
73. There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given? In relation to the first question we think it unnecessary and undesirable to add anything to what Wall LJ said.
74. In 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)  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)  EWCA Civ 1233,  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."
The application for care and placement orders
The judge's decision
- The Guardian cautioned that the question is whether there is a solid prospect of successfully opposing adoption and that this should not be conflated with the question of rehabilitation. However, here the only real options are rehabilitation or adoption, so it is a binary issue.
"So that is an outline of the position and the reasons why I come to a conclusion that in this case there is a parallel between the question for determination at this stage and what may be considered at a final hearing, but only in the sense that if one is looking at the solidity of the application then the compelling features of this case, which really do come down to his previous disruption of attachment, and the fact that he is now attached, and the lack of relationship with his natural family. Those three matters lead me to consider that there is in fact no solidity in the prospect of the parents avoiding an adoptive order being made in due course."
"So, in this case, and I will say with a degree of sadness as far as the parents are concerned, I recognise the journey that they have been on. I wish they had been able to undertake it sooner. I realise how much they want to restore their family. I wholly accept their good faith and good intentions, their care for their children that is now being exhibited, the efforts that they are making. But I am concerned that where, in looking at the solidity of their prospects is concerned, the effects on the welfare of B, even bearing in mind, as I say, the benefits of a relationship with natural family, are such that I would fear for his future welfare in the event that there were to be a further disruption to his placement. And so I also, again, repeat that the parents are really now, for the first time, experiencing a reunification with the older children, and it is still a work in progress, it seems to me. It will be some time before there will be any certainty that the rehabilitation of the other three children has been successfully achieved. So, very, very sadly, I come to the conclusion that it would not be right for leave to be given. I would not wish there to be further delay, because it does seem to me that the journey that B is on is one where he is coming to a position where he is attaching and that is very important. I see what the parents believe, that they would not want a sudden change. I see that they are open to professional support. I understand all of that. But sadly, for the reasons that I have come to it appears to me that the welfare of B does require that this application be dismissed."
The Grounds of Appeal
(1) The judge reached conclusions in relation to the impact of any future placement move upon the child without having adequate evidence upon which to do so.
(2) The judge was wrong to conclude that the parents' prospects of successfully opposing the making of an adoption order lacked solidity.
(3) The judge failed to provide adequate reasoning for departing from the recommendations of the Children's Guardian.
The submissions of the parties
"'Research suggests that children who have formed good patterns of attachment can go on to do so again with sensitive introductions and at a pace appropriate to their needs if they need to move. The older the child's age and the better their understanding the harder that becomes. A child of B's age would generally be considered able to re-form attachments such as from his foster carer to adoption but there is less research and information available when considering the impact on children if they are returned to their birth family as it is very unusual for this to occur.
Therefore, in my view there is much information missing within the updating social work statement about the attachments of B, how he fits into his adoptive family and whether if necessary how and if, he could be successfully moved or whether he should not be moved and should only be adopted."
Mr Jones argues that the judge, having at first identified the need for further evidence, went on to deal with this issue without the specific evidence that was needed: that was a flawed approach and it underpinned what he described as the compelling features that led him to conclude that the parents' case lacked solidity. In support of this submission, he relies upon a passage from Re W (A Child)  EWCA Civ 793. In that case a child had been placed in foster care at birth and with prospective adopters at 7 months old. After the birth of a second child to the mother, the maternal grandparents became aware of the birth of their first child and expressed the wish to care for her as well as the second child. They were given permission to apply for a special guardianship order, and that application was heard together with the adoption application. There was a conflict of professional advice as to what outcome was best for the child. The judge made a special guardianship order to the grandparents. The prospective adopters successfully appealed and the matter was remitted for rehearing. The main judgment of this court, given by McFarlane LJ, considers the approach to be taken once a child has become fully settled in a prospective adoptive home and, late in the day, a viable family placement is identified. Of relevance to the present case, he said this:
"66. In a case such as the present, where the relationship that the child has established with new carers is at the core of one side of the balancing exercise, and where the question of what harm, if any, the child may suffer if that relationship is now broken must be considered. The court will almost invariably require some expert evidence of the strength of the attachment that exists between the particular child and the particular carers and the likely emotional and psychological consequences of ending it. In that regard, the generalised evidence of the ISW and the Guardian, which did not involve any assessment of [the child] and [the prospective adopters], in my view fell short of what is required."
Analysis and decision
(1) To rule out the possibility of a birth family placement for B, even at this late stage, was premature. The decision depended on a view of attachment that was not agreed as between the social work witnesses or supported by expert evidence. This was a case where all the evidence, including expert evidence about the emotional and psychological effect on B of a further move, needed to be fully considered. Nothing less than that could adequately resolve the professional disagreement in this case. The firm stance taken by the Guardian and his own initial instinct that expert evidence may be needed should have alerted the judge to the fact that the parents' opposition to B's adoption needed to be fully considered.
(2) By excluding the possibility of B being cared for by his parents the judge was inevitably prevented from weighing up all the matters that are likely to be relevant to his lifelong welfare. The factors he found compelling (attachment and lack of a birth family relationship) could not be accurately evaluated on the available evidence. Nor were they the only factors affecting B's welfare, when there was evidence of considerable parental change leading to the return of his siblings to the family home. The fact that a move would carry disadvantages is not in doubt, but it may not be the whole picture. Even if B is to be adopted it is important for him to know in later life that he really could not have been cared for by his parents.
(3) The negative aspects of a contested adoption hearing must always be taken into account, but in the absence of specific disadvantages, they cannot in themselves be given much weight. Nor, despite the judge's understandable concerns, can further short-term delay be very influential when seen alongside the lifelong significance of the decision about adoption.
Lord Justice Arnold
Lord Justice Leggatt