B-S (Children)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane |
| Judgment Date | 14 June 2013 |
| Neutral Citation | [2013] EWCA Civ 813 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 June 2013 |
| Docket Number | Case no: B4/2013/1377 |
[2013] EWCA Civ 813
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELTENHAM COUNTY COURT
(MRS JUSTICE PARKER)
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice McFarlane
Case no: B4/2013/1377
Ms Maureen Obi-Ezekpazu (instructed by the Bar Pro Bono Unit) appeared on behalf of the Applicant mother.
The Respondents did not appear and were not represented.
(Draft for approval)
.
This is an application for permission to appeal made by the mother of two young children against the determination made by Parker J sitting (apparently) as a judge of the county court in Chelmsford County Court on 7 May 2013. The proceedings concern two girls, both with the initial of their first name S, the eldest being born on 29 November 2007 and therefore now just over five and a half years of age, and the younger girl born on 22 September 2008, therefore four and three quarter years old.
The girls had been born to the mother when she herself was a teenager and living life in circumstances which made her very vulnerable and, as I suspect she now acknowledges, completely unable to provide safe or good enough parenting for her two young children.
The local authority were involved for some period of time after the children were born, but in the end the authority concluded, in February 2011 when the girls were respectively just over three and two and a half, that they should be removed from the mother's care. They were made the subject of full care orders in October 2011, and the court on that occasion made placement for adoption orders and held that the mother's consent to adoption should be dispensed with.
Contact between the mother and the girls ceased in December 2011, therefore some 18 months ago, and relatively soon after that in April 2012 they were placed with prospective adopters. In due course, the adopters issued an adoption application, and it was the adoption proceedings that were listed before Parker J on 7 May.
At that hearing, the mother, represented as she is today by Ms Obi-Ezekpazu, sought the court's permission to oppose the adoption, that permission being required under section 47(5) of the Adoption and Children Act 2002.
The judge heard submissions from all of the parties and considered the material in the case. As is well-known, the court can only grant permission to oppose adoption under section 47(7) if there has been "a change of circumstances" since the making of the relevant placement for adoption orders.
Happily for the mother, there had been an astonishing change of circumstances from the grim days to which I have already made short reference. She had parted company from the abusive, negative influence of her then partner. She had met the man who is now her husband, who is serving in the forces. She had settled down with him. They have their own young child. She has been assessed by two local authorities because of change of home circumstances, and both of those authorities, despite the adverse findings that have been made in relation to S and S, had concluded that there was no need to take proceedings in relation to the new baby. So the issue before the court was not whether there had been a change in circumstances, the issue was whether, despite that change in circumstances, the mother should now be given leave to oppose the adoption.
The judge gave a full judgment and I have the benefit of a note of judgment, which Ms Obi-Ezekpazu tells me is an agreed note of the three advocates who appeared before the judge on that day. After reciting the history, which included a summary of the adverse findings that were made about the mother as carer of the two girls and after summarising the law, the judge concluded that it was entirely improbable that the mother would ultimately succeed in having the girls returned to her care and she therefore refused permission to the mother to oppose the adoption. I am told that the adoption order was made on that day, but the judge directed that the so-called "celebration" event, which typically would be held some time on a day after that hearing, should not take place pending the mother's approach to the Court of Appeal.
Normally in deciding whether to grant or refuse permission to appeal, the court will give only a short judgment. However, on this occasion I intend to give a slightly longer judgment for a number of reasons. First of all, I am minded to grant permission to appeal for the grounds that are raised by the mother in her notice, save for ground 2, but also on a number of different bases, each of which arise out of the very recent decision of the Supreme Court in the case of Re B (A Child) [2013] UKSC 33, which was only published some 48 hours ago. I therefore wish to communicate to the court that will hear this full appeal the matters upon which I add to the grounds Ms Obi-Ezekpazu has raised.
I also set those matters out because today Ms Obi-Ezekpazu appears instructed through the Bar Pro Bono Unit, and there is no guarantee that either she or any legal representative will appear for the mother at the full appeal, and the points that I have in mind are unlikely to be points taken and argued for by any of the other parties. I also wish to indicate to the other parties the points that I have in mind, and finally I will be indicating that there is a potential here for a fundamental review of the test to be applied to applications of this sort for leave to oppose adoption, and it is very much in the interests of justice and the assistance of the court that is to grapple with this issue that the mother has proper legal representation. I do not know whether she would qualify for legal aid, but if provision of legal aid for her representation is something that is within the discretion of the Legal Aid Authority, I would very...
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