Re P (A Child) (Adoption Proceedings)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 27 June 2007 |
| Neutral Citation | [2007] EWCA Civ 616 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/0906/CCFMF |
| Date | 27 June 2007 |
[2007] EWCA Civ 616
Lord Justice Thorpe
Lord Justice Wall and
Mr Justice Hedley
Case No: B4/2007/0906/CCFMF
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE CORRIE sitting in the High Court
FAMILY DIVISION AT OXFORD COUNTY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Eleanor Platt QC and Andrew Pote (instructed by Wilsons Solicitors) for the Appellant
Piers Pressdee (instructed by Oxfordshire County Council and Darbys—Solicitors) for the 1st and 2nd Respondent
Jonathan Sampson (instructed by Whetter, Duckworth & Fowler – Solicitors) for the 3 rd Respondent
Simon Miller (instructed by Challenor & Gardiner – Solicitors) for the 4 th Respondent
Hearing date: 12th June 2007
Introduction
This is the judgment of the court, to which each of its members has contributed.
With permission granted by the judge in the court below, the father of S, a female child born on 30 August 2005, appeals against an order made by HH Judge Corrie sitting as a Judge of the Family Division in the Oxford County Court on 4 April 2007, whereby, in adoption proceedings issued under the Adoption and Children 2002 (the 2002 Act) by S's prospective adopters (the applicants), he refused her parents' application for leave to oppose the making of an adoption order. By a respondent's notice dated 21 May 2007, S's mother supports the father's appeal. It is, however, opposed by the adoption agency, by the prospective adopters of S, and by S's guardian in the adoption proceedings.
This is, we were told, the first case to reach this court in which the “leave” provisions in section 47 of the 2002 Act fall to be considered. We were also told that there was a concern about how the provisions of sections 1(7) and 47 of the 2002 Act should be addressed at first instance, and that guidance from this court on the application of those two sections of the 2002 Act would be welcomed. Moreover, it seems to be because, as the judge put it, “there appears to be no authority on the basis upon which such applications should be considered”, that the parents' application for leave to defend the adoption proceedings was transferred to the High Court for hearing. Similar considerations appear to have influenced the judge in giving permission to the parents to appeal. In the event, however, the application was not heard by a Judge of the Family Division. It was agreed between the parties that Judge Corrie was best placed to determine it, since he had conducted both the care and the placement proceedings.
The facts
For the purposes of introducing the issues raised by the appeal, the facts can be very shortly summarised. S's parents are married, although at the time the proceedings were first before Judge Corrie, they had enjoyed what the judge found to be a highly volatile relationship, punctuated by serious violence inflicted by the father on the mother, and exacerbated by a mutual abuse of alcohol and illicit drugs. The result was the removal of S from her parents' care by means of an emergency protection order made on 1 September 2005, the institution of care proceedings by the local authority, and a care order made by Judge Corrie on 8 May 2006, following a substantive and fully contested hearing.
The local authority's care plan was for S to be adopted by strangers, and on 28 June 2006, Judge Corrie made a placement order under section 21 of the 2002 Act. The placement order was opposed by the parents, although no oral evidence was taken. In making the order, the judge dispensed with both parents' consent to the placement. S, who had previously been living with foster parents, was duly placed with the applicants on 7 July 2006. She has remained in that placement since that date, where on the evidence before the judge, she has both thrived and become fully integrated as a member of the applicants' family. On 26 November 2006, the applicants issued proceedings to adopt S, and those proceedings are currently due to be heard on 10 August 2007 before HH Judge Compston, with a time estimate of three hours.
There was no appeal to this court by S's parents against either the care order or the placement order. They did apply to the judge in the care proceedings for permission to appeal against his refusal to direct a residential assessment under section 38(6) of the Children Act 1989 (the 1989 Act). That application was, however, refused by the judge and, so far as we are aware, was not renewed in this court.
The mother gave birth to the parents' second child, H, on 11 August 2006. Following his birth, the parents underwent a successful residential assessment, and although H's name has been placed on the child protection register by the local authority, no care proceedings have been issued or are in prospect in relation to H, who is living with, and being cared for by his parents, who remain together as a couple. Indeed, the mother is currently pregnant with the parties' third child, whose expected date of birth is 6 September 2007.
On the application for leave to defend the adoption proceedings, the parents' case before the judge, in a nutshell, was that they both (but in particular the father) had addressed all the deficiencies in their lives and in their parenting of S identified by the judge in the care and the placement order proceedings. They were successfully caring for H. In addition, the father had resumed contact with his two children (born in 1998 and 1999 respectively) from a previous relationship, who regularly stayed for weekends at the parents' home.
The particular significance of the resumption by the father of his relationship with these two children was that his relationship with their mother had also been violent, and she had previously opposed his contact with them. There had, moreover, been care proceedings relating to those two children, and in those proceedings the draft threshold criteria (apparently not disputed by the father's previous solicitors, albeit not accepted by the father) comprised allegations of domestic violence by the father such as to render the two children likely to suffer significant harm. On any view, therefore, the satisfactory resumption by the father of contact with these two children was an extremely positive sign.
Before the judge, therefore, both parents sought leave to defend the adoption proceedings. They asserted that there had been “a change in circumstances since the placement order was made” within section 47(7) of the 2002 Act sufficient to make it appropriate for the judge to give them leave to defend the proceedings.
The judge rejected their application for leave to defend the adoption proceedings for two main reasons. Firstly, he was not satisfied that there was a sufficient change in their circumstances to cross the leave threshold. Alternatively, however, if he was wrong about that, he held that S's welfare, which he found to be his paramount consideration, required her to be adopted. The judge's approach, it seems to us, is summed up in paragraph 57 of his reserved judgment delivered on 25 April 2007 in which he says:—
The change of circumstances (sic) is not in any event sufficient. It remains, as I have put it, inchoate or work in progress, to be applauded but not finally crowned. If that is wrong, then there has to be consideration of the welfare of S and whether that dictates that leave should or should not be given.
For the father, Miss Eleanor Platt QC challenges both limbs of the judge's conclusion. Firstly, she argues that the judge was wrong to find that there had been an insufficient change in the parents' circumstances to cross the leave threshold. Secondly, she submitted that the judge had in any event been wrong to hold that S's welfare was the court's paramount consideration on an application for leave to defend adoption proceedings.
The statutory provisions
In order to test Miss Platt's arguments, it is, firstly, necessary to examine the relevant statutory provisions. We need not, we think set out the terms of sections 21 and 22 of the 2002 Act, which deal with placement orders. We go, accordingly, straight to section 47. That section, which is headed: Conditions for making adoption orders provides by section 47(1) that, subject to section 52 (parental consent):—
An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met.
For present purposes, the second condition, set out in section 47(4) and (5) is the condition which applies. These two sub-sections, as they apply to this appeal, read:—
(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) ……
(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.
The criterion for granting leave is set out in section 47(7), which provides:—
The court cannot give leave under subsection ….. (5) unless satisfied that there has been a change in circumstances since the placement order was made.
However, in approaching the grant or refusal of leave for a parent to defend adoption proceedings under section 47, the question...
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