Re P (A Child) (Adoption Order: Leave to Oppose Making of Adoption Order)
| Jurisdiction | England & Wales |
| Judgment Date | 2007 |
| Year | 2007 |
| Date | 2007 |
| Court | Court of Appeal (Civil Division) |
Adoption – Adoption order – Arrangements for adoption – Prospective adopters applying for adoption order – Natural parents seeking leave to oppose making of order – Guidance – Adoption and Children Act 2002, ss 1(7), 47(7).
By means of an emergency protection order, the child was removed from her parents. The local authority instituted care proceedings and a care order was made. The authority’s care plan was for the child to be adopted by strangers. A placement order was made under s 21 of the Adoption and Children Act 2002. The child was placed with her prospective adopters, who issued proceedings to adopt her. The parents applied for leave to oppose the making of the adoption order, asserting that there had been a change in circumstances since the placement order was made, within the terms of s 47(7) of the 2002 Act, sufficient for the judge to give them leave. The judge rejected the application, holding (i) that he was not satisfied that there had been a sufficient change in circumstances to cross the threshold for giving leave and, alternatively, (ii) that the child’s welfare, which he found to be his paramount consideration, required that she be adopted. The father appealed. An issue arose, inter alia, as to the meaning of s 1(7) of the 2002 Act, and whether or not the decision to grant or refuse leave to defend adoption proceedings within s 1(7)(b) included ‘any action … which may be taken … by an individual under this Act’.
Held – (1) On its true construction, the effect of the final 15 words in s 1(7) was that ‘coming to a decision relating to the adoption of a child’ within s 1(1) and (7) of the 2002 Act only applied to decisions under the 2002 Act: it did not include coming to a decision about granting leave in any other circumstances, including decisions about granting leave in proceedings under the Children Act 1989. On the plain language of the statute, the court was coming to a decision about granting leave in respect of the action taken by the parents in applying for it in order to defend the proceedings. The decision whether or not to grant leave had, accordingly, to be within the definition of ‘coming to a decision in relation to the adoption of a child’ contained in the opening words of s 1(7).
(2) An application for leave to defend adoption proceedings under s 47(5) of the 2002 Act involved a two-stage process. First, the court had to be satisfied, on the facts of the case, that there had been a change in circumstances within s 47(7). If there had been no change in circumstances, that was the end of the matter, and the application failed. If, however, there had been a change in circumstances within s 47(7), the door to the exercise of a judicial discretion to permit the parents to defend the adoption proceedings was opened, the decision whether or not to grant leave was governed by s 1 of the 2002 Act, and the paramount consideration of the court had to be the child’s welfare throughout his life. In addition, when deciding either limb, the judge had a discretion whether or not to hear oral evidence. It would be perfectly proper, for example, for the judge in an appropriate case to assume as true the facts asserted by the parents, and equally proper for him to dismiss the application on the ground that it was not in the interests of the child for the parents to be given leave to defend the proceedings. It was not necessary for the judge to conduct a full welfare hearing unless the issues which arose for decision positively required such a hearing, or required oral evidence in one of more particular respects.
In the instant case, the judge had been fully entitled to come to the conclusion that the child’s welfare continued to require that she be adopted by the prospective adopters.
Accordingly, the appeal would be dismissed.
Cases referred to in judgmentJR v Merton London BC[1992] 2 FCR 174; sub nom Re A (minors) (residence orders: leave to apply) [1992] 1 All ER 929, [1992] Fam 182, [1992] 2 WLR 536, CA.
KD (a minor) (ward: termination of access), Re [1988] FCR 657, [1988] 1 All ER 577, [1988] 1 AC 806, [1988] 2 WLR 398; sub nom Re KD (a minor) (access: principles) [1988] 2 FLR 159, HL.
AppealThe father appealed against an order of Judge Corrie, sitting as a judge of the Family Division in the Oxford County Court, dated 4 April 2007, whereby, in adoption proceedings issued under the Adoption and Children 2002 by S’s prospective adopters (the applicants), he refused her parents’ application for leave to oppose the making of an adoption order. The mother supported the father’s appeal. The adoption agency, the prospective adopters and the child’s guardian opposed the appeal. The facts are set out in the judgment of the court.
Eleanor Platt QC and Andrew Pote (instructed by Wilsons) for the appellant.
Piers Pressdee (instructed by Oxfordshire County Council and Darbys) for the first and second respondent.
Jonathan Sampson (instructed by Whetter, Duckworth & Fowler) for the third respondent.
Simon Miller (instructed by Challenor & Gardiner) for the fourth respondent.
WALL LJ. INTRODUCTION[1] This is the judgment of the court, to which each of its members has contributed.
[2] With permission granted by the judge in the court below, the father of S, a female child born [in] August 2005, appeals against an order made by 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 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.
[3] This is, we were told, the first case to reach this court in which the ‘leave’ provisions in s 47 of the 2002 Act fall to be considered. We were also told that there was a concern about how the provisions of ss 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[4] 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.
[5] 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 s 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 Judge Compston, with a time estimate of three hours.
[6] 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 s 38(6) of the Children Act 1989. That application was, however, refused by the judge and, so far as we are aware, was not...
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