Re B-S (Children)

JurisdictionEngland & Wales
JudgeSir James Munby President of the Family Division
Judgment Date17 September 2013
Neutral Citation[2013] EWCA Civ 1146
Docket NumberCase No: B4/2013/1377
CourtCourt of Appeal (Civil Division)
Re B-s (children)

[2013] EWCA Civ 1146

Before:

Lord Dyson Master of the Rolls

Sir James Munby President of the Family Division

and

Lady Justice Black

Case No: B4/2013/1377

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM CHELMSFORD COUNTY COURT

Mrs Justice PARKER

Royal Courts of Justice

Strand, London, WC2A 2LL

Ms Maureen Obi-Ezekpazu (instructed by the Bar Pro Bono Unit) for the appellant (mother)

Mr Alex Verdan QC (instructed by Baxter Harries Solicitors and Essex County Council) for the respondents (the adopters and the local authority)

Sir James Munby President of the Family Division
1

This is the judgment of the court.

2

This is an appeal, pursuant to permission given by McFarlane LJ on 14 June 2013 ( Re B-S (Children) [2013] EWCA Civ 813), from an order dated 7 May 2013 made by Parker J sitting in the Chelmsford County Court. Parker J refused a mother's application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose the making of adoption orders in relation to her two children. At the conclusion of the argument we were satisfied that the appeal had to be dismissed and informed the parties accordingly. We have taken some time to put our reasons in writing because the appeal not merely requires us to determine an important question of law as to the proper application of section 47(5); it also raises some very significant matters of more wide-reaching importance.

The background facts

3

The mother has two children, the elder born in November 2007 and the younger in September 2008. In February 2011 they were removed from the mother's care. In October 2011 they were made the subject of care and placement orders, the court dispensing with the mother's consent in accordance with section 52(1)(b) of the 2002 Act. Contact between the mother and the children ceased in December 2011. The children were placed with prospective adopters in April 2012. An application for adoption followed in 2013. It was listed before Parker J on 7 May 2013. The mother applied under section 47(5) of the Act for leave to oppose the adoption. The basis of her application was that there had been what MacFarlane LJ described as "an astonishing change of circumstances" since the making of the care and placement orders. Parker J gave a full judgment explaining why she refused the mother's application and then proceeded to make adoption orders. We return below to consider Parker J's reasoning. Parker J refused the mother permission to appeal.

The appeal

4

The mother filed an appellant's notice on 23 May 2013 setting out seven grounds of appeal and seeking a new trial. McFarlane LJ explained in some detail why he was giving permission to appeal on all except one of the grounds relied on. He was concerned that the full court should have the opportunity of considering the then very recent decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911. In particular he thought that the test in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, might need to be reconsidered in the light of Re B. He indicated (para 10) that there was a potential here for what he called a fundamental review of the test to be applied to applications of this sort for leave to oppose adoption. He questioned (para 18) whether some of what had been said in Re W was still tenable in the light of what the Supreme Court had subsequently said in Re B. He accordingly gave permission to appeal (para 19) "so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level."

The statutory framework

5

Care orders are made in accordance with section 31 of the Children Act 1989. Placement and adoption orders are made in accordance with sections 21 and 46 respectively of the 2002 Act.

6

The court cannot make a placement order unless either the parent has consented or the court is satisfied that the parent's consent should be dispensed with: section 21(3). The court cannot dispense with a parent's consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child "requires" the consent to be dispensed with: section 52(1). In deciding whether or not to make a placement order the paramount consideration of the court must be the child's welfare "throughout his life": section 1(2). The court must have regard to the 'welfare checklist' in section 1(4). So far as material for present purposes a placement order continues in force until it is revoked under section 24 or an adoption order is made: section 21(4).

7

A parent who seeks the revocation of a placement order must first be given leave to apply: section 24(2)(a). The court "cannot" give leave "unless satisfied that there has been a change in circumstances since the order was made": section 24(3). There is therefore a two-stage process: Has there been a change in circumstances? If so, should leave to apply be given?

8

The change in circumstances does not have to be "significant", but needs to be of a nature and degree sufficient to open the door to a consideration of whether leave to apply should be given: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616, [2007] 2 FLR 1069. At the second stage, the child's welfare is relevant but not paramount: M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093. The question for the court is "whether in all the circumstances, including the mother's prospect of success in securing revocation of the placement order and T's interests, leave should be given": NS-H v Kingston upon Hull City Council and MC [2008] EWCA Civ 493, [2008] 2 FLR 918, para 27.

9

It is to be noted that the parental right to apply under section 24(2) for leave to apply to revoke a placement order comes to an end when the child is placed for adoption: section 24(2)(b). Thereafter there is no opportunity for a parent to challenge the process until an application for an adoption order is issued: M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093, Re F (Placement Order) [2008] EWCA Civ 439 [2008] 2 FLR 550.

10

Section 42 sets out minimum periods during which the child must have lived with the prospective adopters before an application for an adoption order can be made. Where, as typically and as in the present case, the child has been placed with the applicants by an adoption agency, here the local authority, that period is 10 weeks: section 42(2). Longer periods applicable in other cases are prescribed by sections 42(3)-(5).

11

Section 47 sets out the conditions for making an adoption order. So far as material for present purposes it provides as follows:

"(1)An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met; but this section is subject to section 52 (parental etc consent).

(2)The first condition is that, in the case of each parent or guardian of the child, the court is satisfied –

(a) that the parent or guardian consents to the making of the adoption order,

(b) that the parent or guardian has consented under section 20 (and has not withdrawn the consent) and does not oppose the making of the adoption order, or

(c) that the parent's or guardian's consent should be dispensed with.

(3)A parent or guardian may not oppose the making of an adoption order under subsection (2)(b) without the court's leave.

(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,

(b) either –

(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."

12

In the present case, and because placement orders had been made and not revoked, the adoption application was proceeding under "the second condition": see section 47(4)(b)(ii). Had the mother been given leave to oppose, the matter could no longer have proceeded under that condition: see section 47(4)(c). It would necessarily have had to proceed under "the first condition". As McFarlane LJ put it ( Re B-S [2013] EWCA Civ 813, para 1 1):

"The effect if leave is given to oppose is that the case can no longer proceed as it was doing under "the second condition" in s 47(4), and the adoption application would fall to be determined at a full hearing under which the "first condition" in s 47(2) would be in play, with the question of whether the child's welfare requires dispensing with parental consent to adoption being determined at that hearing in the light of the circumstances that then exist."

We agree.

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...

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