M (A Child: Leave to Oppose Adoption)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Holroyde,Lady Justice Macur |
| Judgment Date | 18 April 2023 |
| Neutral Citation | [2023] EWCA Civ 404 |
| Docket Number | Case No: CA-2022-002202 |
| Court | Court of Appeal (Civil Division) |
[2023] EWCA Civ 404
Lady Justice Macur
Lord Justice Holroyde
and
Lord Justice Peter Jackson
Case No: CA-2022-002202
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT LEICESTER
Recorder Pemberton
LE48/22
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Beasley (instructed by Leicestershire County Council) for the Appellant
Rebecca Foulkes and Frankie Shama (instructed by Dawson Cornwell) for the Respondent Mother
Hearing date: 28 March 2023
Approved Judgment
Overview
Section 47(5) of the Adoption and Children Act 2002 (‘the Act’) provides that where a child has been placed with prospective adopters under a placement order a parent or guardian may not oppose the making of an adoption order without the court's leave. Section 47(7) states that the court cannot give leave unless it is satisfied that there has been a change in circumstances since the placement order was made.
This restriction on parental opposition, alongside the court's power to permit it where there has been a change of circumstances, forms a part of the balanced structure created by the Act to ensure a fair and timely process for making a decision about adoption. Before the Act came into effect, the decision would be taken at the hearing of the adoption application itself, a process that unhelpfully pitted parents and prospective adopters against each other. The Act instead allows the adoption decision to be taken together with the care proceedings, with the full participation of the parents. If a placement order is made, the expectation is that the local authority will find suitable adopters and that the adoption application will not then face renewed opposition. However, there remains the possibility that during the passage of time between the placement order and the adoption hearing the situation has changed in such a way that adoption is no longer the appropriate outcome. The court's power to grant leave to a parent to oppose the making of an adoption order exists so that these cases are not missed.
I would therefore state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:
1. Has there been a change in circumstances since the placement order was made?
2. If so, taking account of all the circumstances and giving paramount consideration to this child's lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?
I will discuss the correct approach to each of these questions below, and then address the appeal in the present case. But before that, a point of practice arises in this case, and has arisen before.
Transcripts of judgment in placement order proceedings
A decision to approve adoption as a child's care plan is of huge importance to the child, to the birth family and to the adoptive family. The reasons for the decision will appear in a judgment or in justices' reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary.
A further reason for creating a record of the reasons for a placement order is that the order may not be the end of the litigation about the child. The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.
Accordingly in my view, when giving reasons for making a placement order, the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note. The same applies in cases where a final care order is made, though that is not the focus of this appeal.
Section 47(5)
In Re W (A Child: Leave to Oppose Adoption) [2020] EWCA Civ 16, [2020] 1 FLR 1125 at [3–14] I gave a full account of the legal context surrounding applications under s. 47(5), noting that the proper approach to the exercise of the power had been settled by this court in Re P (A Child)(Adoption Proceedings) [2007] EWCA Civ 616, [2007] 1 WLR 2556, [2007] 2 FLR 1069 and Re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035. Those decisions make clear that the provision is intended to provide a real and meaningful remedy and that it should not be too narrowly applied: Re B-S at [70–72]. A parent who obtains leave to oppose 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: Re B-S at [13]. It nevertheless remains the fact that it is for the parent to show that the court should revisit its decision and contemplate the wholesale reversal of the programme for the child that it had felt driven to endorse when making the placement order (to borrow words from Wilson LJ in Warwickshire County Council v M [2007] EWCA Civ 1084, a case under s.24(3) of the Act).
Re P established that an application for leave to oppose an adoption application involves a two-stage process. The first – has there been a change of circumstances? – is a threshold test, while the second – should leave be granted? – is a broad evaluation. At the first stage, the court is typically asked to consider what has occurred in the parents' lives since the placement order was made, though change of any kind can be taken into account. By contrast, the focus at the second stage is firmly on the welfare of the child and, as was said in Re P at [33], this stage is far more important.
More than that, where the court is satisfied that there has been change, the two stages are intertwined, and it will carry forward its assessment of the nature and degree of the change into the welfare evaluation. Self-evidently, the baseline from which change is measured will vary from case to case. In some cases, the difficulties that led to the making of the placement order will be so profound that, even though there has been sufficient change to satisfy the statute, it will be quite inadequate to cause the court to revisit the plan for adoption. In other cases, the combination of a more favourable starting position and a marked degree of change may amount to a strong argument in favour of granting leave: cf. Re B-S at [74(vi)]. Either way, the court will take account of the nature of its assessment at the first stage in any case where it is able to move to the second stage.
Change of circumstances
Section 47(7) reads:
“(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.”
The aim of this provision is clearly to prevent the adoption proceedings from becoming a rerun of the placement order proceedings for no other reason than that the parents continue to oppose adoption. It is a filter to ensure that the structure put in place by the Act is not defeated.
In Re P at [30–32], this court held that the asserted change of circumstances must be relevant to the grant of leave and “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”. It rejected reading words into the statute, so as to require change to be ‘significant’ and said that the test should not be set so high so as to be unachievable. Whether or not there has been a relevant change of circumstances is a matter of fact to be decided by the good sense and sound judgement of the decision-maker. Re B-S endorsed this approach, while preferring to describe the process at the second stage as an evaluation rather than the exercise of a discretion.
It of course follows that the parent is not expected to show that there has been a complete change of circumstances. The court will look at the situation overall and the fact that some things have not changed will not prevent the test from being satisfied if there has been a sufficient change of circumstances in other respects.
I also reject the suggestion that the change must be unexpected or unforeseen. This proposition was advanced in obiter dicta in the decisions in Prospective Adopters v SA [2015] EWHC 327 (Fam) at [16–19] and in Prospective Adopters v London Borough of Tower Hamlets [2020] EWFC 26 at [5]. In the earlier case, Mostyn J stated:
“Obviously the words “a change in circumstances” are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order.”
While in the later case he added:
“Obviously, changes that were clearly either foreseen or which were foreseeable at the...
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H (Children: Placement Orders)
...children, even if the reasons for the decision can be broadly deduced from the professional reports. I repeat what I said in Re M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404 at paras. 5–7 about the obligation on the court and the local authority to ensure that a transcript of j......