Re W (A Child) (Adoption: Leave to Oppose)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Munby,Mr Justice Coleridge |
| Judgment Date | 24 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1535 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4 / 2010 / 2272 |
| Date | 24 November 2010 |
[2010] EWCA Civ 1535
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY, FAMILY DIVISION
(Mr Justice Holman)
Before: Lord Justice Thorpe
Lord Justice Munby
and
Mr Justice Coleridge
Case No: B4 / 2010 / 2272
Mr Chisholm (instructed by Messrs McMillan Williams) appeared on behalf of the Appellants, the adopters.
Mr Howling (instructed by London Borough of Lambeth Legal Services) appeared on behalf of the First Respondent, the local authority.
Mr Douglass (instructed by Charles Ete and Co) appeared on behalf of the Second Respondent, the mother.
Lord Justice Thorpe:
This appeal, for which Wilson LJ granted permission, is brought to decide the future of a little boy, Josiah, who is five years 10 month of age, having been born on 27 January 2005. He was removed from his mother's care under an emergency protection order on 18 August 2007 and that is the date of his mother's last contact with him. Care proceedings developed conventionally to a final care order granted on 29 April 2008 to the local authority. The mother did not participate in those proceedings. The next stage was a placement order made on 16 June 2008, again without the mother's participation. However, by 29 September 2008, some three months after the making of the placement order, the mother registered her liberation from a dependence on drugs which had prevented her providing good-enough parenting for Josiah during his early life.
The recovery seemed on the face of it to have come too late for Josiah and on 25 February 2009 he was placed with prospective adopters. The mother was informed of this placement some two days later on 27 February. Predictably, inevitably indeed, an application for adoption was issued by the adopters in the county court on 2 August 2009. Perhaps unexpectedly on 26 January 2010 the social worker with responsibility received a telephone call from the mother in which she stated her desire to resume her natural role in Josiah's life. The social worker of course explained to her the realities and two days later they met in order that the mother could hand over a birthday present for her son.
In the adoption proceedings it was incumbent on the county court to give the mother notice of the adoption hearing which would conclude the adoption proceedings. Unfortunately, as a result of an error in the social work report, the county court gave notice to the wrong address and the letter was returned through the usual service, not known at this address. Accordingly at the final hearing before HHJ Hallon on 24 March 2010 there was no attendance by the mother and the adoption order was duly made. The mother's absence at that final stage in this long process can have caused little surprise to either the adopters or indeed to the judge because inevitably that would be the norm. The final hearing of an adoption application arising out of long-dead care proceedings is generally not so much a listing in which the judge exercises a difficult discretionary decision but more something akin to a celebration of the culmination of the process and the benefits that it is intended to secure for the child during its future in a new family.
On 1 April 2010 the mother through her solicitors applied for the revocation of the placement order to the court in which the care proceedings had taken place, namely the Inner London Family Proceedings Court. That was reflective of erroneous judgment on the part of the mother's solicitors since her right to apply for the revocation of the placement order died with Josiah's placement on 25 February 2009. The statutory right of application runs from the date of the making of the placement order to the date of placement but not beyond. The mother's solicitors were informed of the making of the adoption order on 20 May 2010 and that led to the issue of an application to set aside the adoption order. HHJ Hallon transferred that to the High Court on 20 July and directions on the application were made by Wood J on 17 August 2010. The order in paragraph 1 lists the application for hearing on 2 September “to determine whether the adoption Order should be set aside and if so whether the Mother should be given leave to oppose an adoption application”.
On 2 September the judge sitting was Holman J. He heard submissions over the course of the day, reserved his judgment and handed it down on the 8th. The order that flowed from judgment set aside the adoption order, granted the mother permission to oppose the making of an adoption order and directed an early appointment in the Principal Registry for directions as to the future conduct of the adoption order application. Those directions were given by the senior District Judge on 4 October, but of course subject to reconsideration at the conclusion of this appeal, since permission had been granted by Wilson LJ on 25 October.
The appeal is brought by the adopters who contend that the judge should not have granted permission to the mother to oppose the adoption order application. In that they are supported by the local authority. The case for the respondent is carried by Mr Douglass for the mother and all three counsel have made excellent submissions in support of their various positions. Mr Chisholm for the adopters advances two grounds. He, by ground one, submits that the judge conflated the two questions, the first whether the order made by HHJ Hallon should be set aside, the second whether the mother should be granted permission to oppose, so that his decision on the difficult question should the mother be granted permission was seen by him almost to flow from her success on the first question, whether the order below should be set aside for procedural error.
His second ground of appeal is a classic ground. He says that the judge in exercising his discretion to grant permission misconducted the balancing exercise, alternatively was plainly wrong in his conclusion.
Mr Howling for the local authority supports and adopts those submissions. He further asks this court to validate the judge's direction as to the consequence of setting aside an adoption order and finally he makes a complaint which is aired by Mr Chisholm but perhaps not with the same emphasis, namely that the judge failed to follow an approach which had been articulated by McFarlane J in the case of X and Y v a Local Authority [2009] 2 FLR 984.
Mr Douglass of course supports the judgment below and essentially urges on this court that the judge was right for the reasons which he gave and that in any event this court should be very slow to interfere with the exercise of discretion of the judge in the court of first instance.
I turn to the essential material which is the judgment in the court below. All counsel have paid tribute to the care which Holman J brought to this case and the clarity and lucidity of his judgment. As I survey it there are a number of points which I wish to select for particular emphasis.
The first is that the judge, as he recorded in paragraph 3, was exercising the jurisdiction of a county court judge under CCR Order 37. He was not sitting in an appellate capacity. The case had been transferred for the determination of a judge of the Division, but a judge of the Division still sitting within the county court. The judge thereafter, in paragraphs 6 to 11 inclusive, reviewed the essential facts with his characteristic thoroughness. He then recorded the position of the mother and then embarked upon an important analysis of the legal position. Within that analysis, between paragraph 17 and 19 inclusive, he considered the effect of the setting aside of an adoption order. Here I cite in their entirety paragraphs 17 to 19:
“17. In this case an adoption order has indeed been made which is currently valid and effective, so by virtue of section 21(4) the placement order no longer ‘continued in force’ after 24 March 2010 and on that date, by virtue of section 46(2), the prior parental responsibility was ‘extinguished’. If I considered that fro some reason (e.g. total want of jurisdiction) the existing adoption order is and always has been ‘void’ or a ‘nullity’, then it would logically and conceptually follow that the placement order had not ceased to continue in force, and the prior parental responsibility had not been extinguished. But it is much less clear what happens if the currently valid adoption order is set aside as an exercise of discretion and, in truth, there is a statutory lacuna in that no statutory provision is made for the extremely rare and exceptional situation where a valid adoption order may later be set aside.
18. I had much helpful argument and submissions on the point from both Mr. Howling and from Mr. Michael Sherwin on behalf of the adopters. During that argument we all considered various metaphors. I have since concluded that the use of metaphors in a situation such as this can mislead. We spoke during the hearing of whether a fire which has been ‘extinguished’ can reignite. One might have spoken of the impossibility of unscrambling an egg, but another metaphor might be that of pieces on a chess board. When the adoption order was made the pieces were rearranged, and some of them (e.g. the mother) were removed, but that does not make it impossible to reinstate them in their former positions.
19. In the face of a statutory lacuna, but eschewing all metaphors, it seems to me permissible, pragmatic and most purposive to the statutory mechanism to hold, as I now do, that if the adoption order is set aside or ‘voided’ then the legal position would revert to...
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