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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> W (A Child: Leave To Oppose Adoption) [2020] EWCA Civ 16 (21 January 2020) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2020/16.html Cite as: [2020] EWCA Civ 16 |
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ON APPEAL FROM THE FAMILY COURT AT MANCHESTER
HHJ Wallwork
MA09019
Strand, London, ![]() ![]() |
||
B e f o r e :
LORD JUSTICE LEGGATT
and
LORD JUSTICE ARNOLD
____________________
![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() ![]() |
____________________
WTB
Solicitors) for the Appellant
Child
by his
Children's
Guardian
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) thechild
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) thechild
![]()
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) thechild
![]()
was
placed for
adoption
under a placement
order,
and
(c) no parent or guardianopposes
the making of the
adoption
![]()
order.
(5) A parent or guardian may notoppose
the making of an
adoption
![]()
order
under the second condition
without
the court's
leave.
(6) …
(7) The court cannot giveleave
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 oradoption
agency must have
regard
to the following matters (among others)—
(a) thechild's
ascertainable
wishes
and feelings
regarding
the decision (considered in the light of the
child's
age and understanding),
(b) thechild's
particular needs,
(c) the likely effect on thechild
(throughout his life) of having ceased to be a member of the original family and become an
adopted
person,
(d) thechild'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) therelationship
![]()
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 suchrelationship
continuing and the value to the
child
of its doing so,
(ii) the ability andwillingness
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) thewishes
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 givenleave
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 haveregard
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 meaningfulremedy
– 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 areal
![]()
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 pointwhich
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, shouldleave
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. Inrelation
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 hererelates
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 analysiswe
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 seekingleave,
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 theadoption
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 circumstancesrequires
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 seekingleave
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 thechild
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 thatwhat
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 judgewill
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 background
The application for care and placement orders
Subsequent events
The judge's decision
- B having been
removed
at birth, has never lived
with
his natural family and has been in his present placement for 12 months. Family contact ceased over 12 months ago.
- A contested
adoption
hearing
would
probably not happen before March or April 2020, by
which
time B
would
be aged 3.
- There have been significant commendable changes made by the parents since the placement
order
![]()
which
opened the door to a
welfare
evaluation of their application.
- 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.
- The evidence of the social
worker
![]()
was
compelling. As a
result
of the passage of time and the changes in attachment to carers, a second move
would
be "a devastating blow emotionally and in every
way"
for B.
- The
return
of the eldest two
children
has been
reported
to be successful, but the
return
of the third
child
![]()
would
be a tall
order.
If B
were
![]()
returned
to the household his needs might be met but there
would
be risks and he
would
not
receive
the one-to-one care he currently experiences.
"So that is an outline of the position and thereasons
![]()
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 Iwill
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 judgereached
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 judgewas
![]()
wrong
to conclude that the parents' prospects of successfully
opposing
the making of an
adoption
![]()
order
lacked solidity.
(3) The judge failed to provide adequatereasoning
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 missingwithin
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)
[2016] 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 judgewas
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 contestedadoption
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