Re D (Leave to Oppose Making of Adoption Order)

Hearing date: 15 th October 2013

Approved Judgment

This appeal concerns an application made by a mother under section 47(5) of the Adoption and Children Act 2002 ("the Act") for leave to oppose the making of an adoption order in relation to her child, L.

In September 2013, this court handed down judgment in the case of Re B-S[2013] EWCA Civ 1146, dealing with a mother's application under section 47(5) of the Act. Following Re B-S, the court heard two further cases raising similar issues. The judgment dealing with those two cases was handed down on 16 October 2013. Its long title is In the matter of W (a child); In the matter of H (children)[2013] EWCA Civ 1177 and I will refer to it simply as Re W and H. Although the hearing in the present case took place on 15 October 2013, counsel were given sight of the draft judgment in Re W and H in order that their arguments might take account of it, as they did.

I do not intend to travel again over the ground that was covered so recently in Re B-S and Re W and H. This judgment proceeds upon the basis of the law as it is found in those authorities; nothing that I say is intended to change or develop it. My concern is the application of that law to the facts of the present case.

The matter was listed before us for determination of whether permission to appeal should be granted, with the appeal to follow if we did give permission. The issue of permission was not, in fact, dealt with separately during the hearing. For my part, I would grant permission and this judgment therefore proceeds upon the basis that I am dealing with a substantive appeal.

The history

L was born in December 2010 and is therefore 3 ³/₄ years old. The appeal is brought by her mother (M) against the refusal, on 13 June 2013, of His Honour Judge Caddick to grant her permission under section 47(5) to oppose the making of an adoption order in respect of L.

At the time of L's birth, her mother was only 16 years old and had spent a considerable part of her life in care. Following L's birth, M and L lived with M's foster carer until, in April 2011, the placement was terminated. She and L moved to another foster placement, but L was removed from M's care at the end of May 2011 and has not lived with M since.

A care order and a placement order were made in relation to L on 18 May 2012 by the family proceedings court. The court found that M was unable to meet L's physical and emotional needs consistently having, for instance, neglected her care, not maintained proper hygiene, left L in the care of the foster parent for extended periods including on one occasion when she failed to return because she was intoxicated. Matters culminated in a sequence of volatile behaviour on 26 May 2011 when M packed and left the foster placement with L, was returned by the police, went again leaving the baby with the foster carer, and later returned in the early hours of the next morning shouting, swearing and pushing furniture around. It appears that there was concern also about M's relationships with abusive and violent men. The magistrates' reasons recorded that since L was born, M had moved placement 10 times, the majority of placements having been terminated as a result of her behaviour and her apparent inability to comply with boundaries. In the week of the hearing before the family proceedings court, she had started to move into a flat to live independently but the magistrates took the view that her ability to live independently had not been tested and she had not yet been able to demonstrate that she could provide a stable home for her daughter. They accepted the guardian's view that M still needed to demonstrate maturity and stability over a long period of time and that this would not be achieved soon enough to meet L's needs.

L was placed with adopters on 17 September 2012, so had been with them for nearly nine months when Judge Caddick considered M's application in June 2013. M had not had contact with her since June 2012.

The proceedings before the judge

When the application first came before the judge, it was in what he described as "unprepared form" and he gave M a few days in which to prepare a statement. She also gave oral evidence. She said that her circumstances had changed substantially since the care and placement orders were made. She said that she had very much seen the error of her ways. She said she had matured significantly, got her own rented flat and got employment. She said she was learning to drive to improve her employment options. She said she was avoiding undesirable associates and relationships with men. She said she no longer drank alcohol except for an occasional glass of wine. She wanted to have L returned to her on a gradual basis.

Judge Caddick said that he broadly accepted what M said in her statement and oral evidence. He acknowledged that she had done a great deal and had been working very hard to improve things in various ways, including caring very well for the flat that she had had for eight months, which contrasted with the situation at the time of the care proceedings when she did not have the ability to look after herself and care for her accommodation.

He considered that some features weighed against what M had said. The first feature was that M had not taken up the counselling advised by a psychologist who reported in 2011. The judge seemed disposed to be understanding about this for reasons he set out but he still considered it worthy of mention. He thought the second feature more important. That was that in June 2012 M had assaulted a police officer whilst drunk, which had resulted in a prosecution, a fine and a requirement that she perform unpaid work. The judge made allowance for the incident having taken place a month after the hearing before the magistrates, at the time of M's goodbye visit with L. However, he considered that it "does illustrate some element of not being entirely mature as at that stage, one year ago". The third feature revolved around an incident with a man which took place in February 2013. The circumstances are not entirely clear from the judgment but, in addition to what we have, the judge seems to have had not only M's oral evidence but also a police record relating to the incident. He said that M had accepted in evidence that she had exaggerated what happened to the police. The judge said of this:

"So, again, on that admission by the mother that, perhaps a little more worryingly, is, coming into this year, again something of an immaturity about it on her part, persisting from the kind of things that have happened pre-May 2012."

The judge's conclusion was that there had been a change of circumstances sufficient to require him to consider whether leave to oppose should be given and he went on to do so.

He felt that although M's position was better than it was in May 2012 when the orders were made, it would be "highly improbable that a court could say that the position was sufficiently different … to enable M to succeed in opposing an adoption application".

He considered matters from L's point of view, noting that she not had contact with M for the last year and that she had been placed with the adopters for nearly 9 months and was well settled there and attached to them. He also commented that the adoption proceedings were "well advanced".

There had already been delay in settling L permanently since she was taken into care in May 2011 and the judge took into account that, if M were given leave to oppose the adoption, it would extend the delay. He proceeded on the basis that further assessments of M would be needed and the delay would be months which would be bad for L when what she needed was permanence as soon as possible. He observed that the process would also run the risk of upsetting the placement with the adopters and he said "[p]utting it another way, further delay is against the interests of the "prospective adopters", He continued:

"Also, of course, that further delay is against the welfare interests of the child. Of course it is argued and perfectly understandably but it might not be in the long term if M is successful and successfully opposes the adoption…." [sic]

He nevertheless concluded that it would not be in L's interest to subject her and the adopters to further delay and, as for M:

"Although in the short term interests, as M would see it to give her that chance, would in my view not in the long term be something that would be for her because it would have the effect of raising false hope only for it to be dashed later on." [sic]

These various conclusions about the facts of the case were preceded by the judge's resume of the law as he saw it. The decision pre-dated Re B-S; the judge cited Re P (Adoption: Leave Provisions)[2007] EWCA Civ 616[2007] 2 FLR 1069§55 which set out the two stage process utilised on a section 47(5) application, the child's welfare throughout his or her life being paramount at the second stage. The judge also cited Re W (Adoption Order: Set Aside and Leave to Oppose)[2010] EWCA Civ 1535 [2011] 1 FLR 2153 of which he said:

"It reminds courts...