Re G (A Child)
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Lewison,Lord Justice Sullivan |
| Judgment Date | 08 April 2014 |
| Neutral Citation | [2014] EWCA Civ 432 |
| Date | 08 April 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/3654 |
[2014] EWCA Civ 432
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE
HHJ Edwards
SA54/13
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Sullivan
Lord Justice McFarlane
Lord Justice Lewison
Case No: B4/2013/3654
Miss Ruth Henke QC and Miss Lucy Leader (instructed by Goldstones Limited) for the Appellant
Miss Lorna Meyer QC (instructed by City and Council of Swansea) for the First Respondent
Miss Catherine Heyworth (instructed by Graham Evans & Partners) for the Second Respondent
Miss Ann Chavasse (instructed by David Prosser & Co.) for the Third Respondent
Hearing date: 13 March 2014
This appeal relates to a boy G, born on 8 th April 2011 and now aged nearly 3 years, who was made subject of a final care order and an order authorising the local authority to place him for adoption made on 2 nd November 2012. The underlying facts are to a degree unusual, and, as a result, they have thrown up a technical novelty with respect to the law relating to adoption. In this judgment, after a short description of the background circumstances, I propose to deal with the point of law and procedure before turning, finally, to consider the outcome of the appeal.
Brief background
G's mother, at the time of the child's birth, concluded that she was unable to provide a home for her son. At that time the mother was in a relationship with a man, DT, who is not G's father. The identity of G's father is unknown. Shortly after G's birth the mother handed over the care of G to the appellant in these proceedings, AR, who is the mother of DT. It follows that the appellant is in no manner related to the child G.
The appellant cared for G from those early days until the conclusion of the care and placement order proceedings some 18 months later in November 2012. In consequences of the court's orders, G was removed from her care at that time and was, subsequently, placed with prospective adopters in May 2013. The prospective adopters issued an application to adopt G on 19 th August 2013.
On 21 st October 2013 the appellant made an application within the adoption proceedings seeking "leave to oppose the adoption order on the ground that there has been a significant change in her circumstances". The application form then went on to list details of the alleged changes to which I will turn later in this judgment.
The appellant's application came on for hearing before Her Honour Judge Edwards in the Swansea County Court on 29 th November 2013. The local authority, the appellant and the Children's Guardian were all legally represented at that hearing. The mother was unrepresented but attended in person.
The judge, correctly, held that a formal application for leave to oppose adoption under the Adoption and Children Act 2002, s 47 ("ACA 2002"), may only be made by "a parent or guardian" (within the meaning of the ACA 2002) and, on any view, the appellant did not come within the terms of that provision.
The judge, therefore, considered what alternative procedural avenues might be open to the appellant. She described the position in these terms at paragraph 15 of her judgment:
"I am invited to consider whether Mrs R should be made a respondent under the Family Procedure Rules 2010, rule 14.3. I have to ask myself this question: to what end? There is no application by Mrs R for a residence order. She has no locus to oppose the adoption order or to seek leave to do so. If she sought a residence order she does not fall into any of the categories provided for in Children Act 1989, s 10 and would need leave under s 10(9)."
On the facts of the case the judge held that any such application would lack merit and be wholly unjustified. She therefore refused AR's application and invited her to leave the courtroom.
The appellant now seeks to challenge the judge's determination of her application. On 14 th February 2014 I granted permission to appeal on the basis that the procedural course taken by the judge, which assumed that a person in the position of the appellant could only be heard in opposition to an adoption application if they met the criteria under the Children Act 1989 s 10(9) ("CA 1989") to apply for a residence order, merited reconsideration. In addition, on the information that was then available, I considered that the appellant's case on the merits had a reasonable prospect of success.
Legal context
(a) Can AR make a substantive application within the adopting proceedings?
A placement order is an order made by the court "authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority" (ACA 2002, s 21(1)).
The appellant's initial intention was to apply to revoke the placement order. Such an application may be made by "any person" (ACA 2002 s 24(1)). However s 24(2) limits those who can apply to the court to revoke the order without first obtaining leave:
"But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless—
(a) the court has given leave to apply, and
(b) the child is not placed for adoption by the authority."
In addition, section 24(3) provides that:
"The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made."
It is accepted that section 24 is wide enough to apply to the appellant, being "any person", provided that the court was satisfied that there had been "a change in circumstances since the order was made" and the grant of leave was justified in accordance with earlier case law ( M v Warwickshire County Council [2008] 1 FLR 1093). However, because G had been placed for adoption with the prospective adopters before the appellant issued any application, the effect of s 24(2)(b) closed off that procedural avenue to her.
Once an adoption application has been issued with respect to a child who is the subject of a placement for adoption order under ACA 2002, s 21, no "parent or guardian" may oppose the making of an adoption order without the court's leave and the court cannot grant such leave unless it is satisfied that there has been a change in circumstances. The relevant statutory provisions are in ACA 2002, s 47 and are 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)….
(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…(5) unless satisfied that there has been a change in circumstances since… the placement order was made."
The terms "parent" and "guardian" in ACA 2002, s 47 are defined elsewhere within the 2002 Act. So far as "parent" is concerned, s 47(1) states that s 47 is "subject to" s 52. Section 52(6) defines "parent" as meaning "a parent having parental responsibility"; thus a father who does not have parental responsibility falls outside s 47.
The term "guardian" is defined in ACA 2002, s 144 as having the same meaning as in CA 1989 and includes a special guardian within the meaning of that Act. CA 1989, s 105(1) defines "guardian of a child" as meaning a guardian appointed in accordance with the provisions of CA 1989, s 5.
It is accepted that, despite the fact that she cared for G for the first 18 months of the child's life, AR falls outside the statutory definitions of parent or guardian and cannot make an application for leave to oppose the making of an adoption order with respect to G by seeking to come within the terms of ACA 2002, s 47.
I am very grateful to Miss Lorna Meyer QC for identifying the options within the 2002 Act which may be deployed to accommodate the position of an individual such as AR, who is not related to the child but who has played a significant part in the child's early life and who may, depending on the factual context, establish a good reason to be heard within the compass of any subsequent adoption proceedings. Miss Meyer draws attention to the provisions of ACA 2002, s 29(3) and (4) which provide:
"(3) Where a placement order is in force—
(a) no prohibited steps order, residence order or specific issue order, and
(b) no supervision order or child assessment order,
may be made in respect of the child.
(4) Subsection (3)(a) does not apply in respect of a residence order if—
(a) an application for an adoption order has been made in respect of the child, and
(b) the residence order is applied for by a parent or guardian who has obtained the court's leave under subsection ( 3) or (5) of section 47 or by any other person who has obtained the court's leave under this subsection."
Miss Meyer submits that the effect of s 29(3) is to override the court's general ability in family proceedings to make a residence order of its "own motion" and to operate as a bar to the making of a residence order where...
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