Mr and Mrs A v A Local Authority and Others
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Baker |
| Judgment Date | 22 June 2015 |
| Neutral Citation | [2015] EWFC 52 |
| Docket Number | Case No: BT15Z00009 |
| Court | Family Court |
| Date | 22 June 2015 |
[2015] EWFC 52
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr. Justice Baker
Case No: BT15Z00009
In the Matter of the Adoption and Children Act 2002
And in the Matter of the Children Act 1989
And in the Matter of LG (A Child)
Marcia Hyde (instructed by Eskinazi and Co) for the Applicants
Hannah Markham (instructed by Local Authority Solicitor) for the First Respondent
The Second Respondent appeared in person
Daisy Hughes (instructed by Creighton and Partners) for the Third Respondent
Pamela Warner (instructed by Williams and Co) for the Fourth Respondent
Hearing dates: 5 th June 2015
Introduction
At the conclusion of a hearing on 5 th June 2015, I gave leave under s.47(5) of the Adoption and Children Act 2002 to a father to oppose an adoption application in respect of his daughter, hereafter referred to as "L", who had been placed with prospective adopters following the making of a placement order under s.21 of the Act. The father's case was that L should be removed from the prospective adopters and placed with her paternal grandfather. Following my decision to grant leave, the prospective adopters withdrew their adoption application and, with the consent of all parties, L moved very quickly to live with her grandfather.
This judgment sets out my reasons for giving the father leave to oppose the adoption application.
Background
L's parents started a relationship when the mother was 17 and the father 18. They conceived a child in 2013 but subsequently the mother underwent a termination. It is the parents' case that the extended family on both sides were very upset that the parents had conceived a child when they were both so young and unprepared to look after a baby. Notwithstanding what had happened, the parents conceived a second child later in 2013. During this second pregnancy, difficulties emerged in their relationship and there were extensive discussions as to whether or not the mother would keep the baby after the birth.
The child, L, was born on 3 rd March 2014. On discharge from hospital, the mother and L went to a mother and baby foster placement but after a few days the placement broke down. The mother signed an agreement under s.20 of the Children Act 1989 and L moved to a different foster placement. On 31 st March 2014, the local authority started care proceedings.
It is the father's case before this court that he declined to tell his family about L's existence because he felt "scared" to tell them as "he had embarrassed and shamed [his] family and let them down again". As a result, the extended paternal family had no knowledge of L's existence during the currency of the care proceedings. The father was pressed by professionals, including the allocated social worker and his own solicitor, to explain why he did not want his family to be involved. During the course of these discussions, he alleged that he had suffered physical abuse at the hands of his own father, L's paternal grandfather. His case before this court is that this allegation was completely untrue and was said with a view to "getting people off his back".
The final hearing of the care proceedings took place before the justices and concluded on 28 th August 2014 with the making of care and placement orders, the local authority having failed to identify any person within the wider family network who had the potential to look after the child. The father had disengaged from contact some months earlier and L had her final contact with her mother in September 2014. Later that month, she was placed with prospective adopters, hereafter referred to as "Mr and Mrs A", with whom she remains living to this day.
In December 2014, the father finally informed his family about L's existence. Members of the family immediately contacted social services to express their wish to care for the child.
On 8 th January 2015, Mr and Mrs A filed an application for an adoption order in respect of L. On the following day, members of the father's family had an initial meeting with L's social worker, AD, at which they were informed about developments and that the local authority planned to support the proposed adoption. On 10 th February 2015, the father applied for leave to oppose the adoption order. He further applied for a direction for an assessment by an independent social worker to establish the suitability of members of his paternal family to care for L. Statements in support of his application were provided by the father himself, the paternal grandfather, paternal uncle and aunt. After a case management hearing, the case was transferred to be listed before a High Court judge.
On 13 th March, the matter duly came before the President who granted the father's application for permission to instruct an independent social worker, Ms Sheila Sidhu to undertake viability assessments of each of the three options proposed by the paternal family to care for L and thereafter to undertake a full special guardianship assessment of whichever option ranked highest in the family's order of preference to care for the child. The President made further directions within the proceedings, including listing the matter before a judge of the Division for a final hearing of the application for permission to oppose the adoption and of the adoption application itself on 3 rd June 2015 with a time estimate of 3 days.
In the event, all the viability assessments carried out with regard to members of the paternal family were positive. Ms Sidhu proceeded to carry out a full special guardianship assessment of the paternal grandfather which concluded with a recommendation that such an order be made in his favour. That course is now supported by both the local authority and the guardian.
The Law
Where a child has been placed for adoption by an adoption agency under a placement order with the prospective adopters in whose favour the adoption order is proposed to be made, a parent may not oppose the making of the adoption order without the court's leave: s.47(5) of the Adoption and Children Act 2002. The court can not give leave under this subsection unless satisfied that there has been a change in circumstances since the placement was made: s.47(7).
Under s.1(1) of the 2002 Act, when coming to a decision relating to the adoption of a child, the court must apply the provisions of s.1(2) to (4) of the Act. S.1(7) makes it clear that this applies to applications for leave under s. 47. S.1(7) reads:
"In this section 'coming to a decision relating to the adoption of a child', in relation to a court, includes
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances."
Under s.1(2) the paramount consideration of the court must be the child's welfare, throughout her life, and to that end the court must have regard inter alia to the matters set out in the checklist in section 1(4). In addition, of course, the court must have regard to the ECHR, in particular the right to respect for family life under article 8
In Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 at paragraph 26, Wall J, giving the judgment of the court, said:
"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 the adoption proceedings under s.47(5) of the 2002 Act involves a two stage process. First of all, the court has to be satisfied, on the facts of the case, that there has been a change of circumstances within s.47(7). If there has been no change in circumstances, that is the end of the matter, and the application fails. If, however, there has been a change in circumstances within s.47(7), then the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings is open, and the decision whether or not to grant leave is governed by s.1 of the 2002 Act. In other words, "the paramount consideration of the court must be the child's welfare throughout his life"."
This approach was subsequently confirmed by the Court of Appeal in Re B-S (Adoption: Application of S 47(5)) [2013] EWCA Civ 1146, subject to a minor qualification, as identified by Sir James Munby P at paragraph 72, that "the exercise at the second stage is more appropriately described as one of judicial evaluation rather than one involving mere discretion."
As to the first stage, Wall LJ observed in Re P (at paragraphs 30 and 31):
"…the change in circumstances since the placement order was made must, self evidently and as a matter of statutory construction, relate to the grant of leave. It must equally 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….self evidently, a change in circumstances can embrace a wide range of different factual situations. S.47(7) of the 2002 Act does not relate a change to the circumstances of the parents. The only limiting factor is that it must be a change in circumstances 'since the placement order was made'".
As to the second stage, the leading authority is now the decision of the...
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