W (A Child) and Another
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lord Justice Goldring,Lord Justice Elias |
| Judgment Date | 16 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1177 |
| Docket Number | Case No: B4/2013/1587 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 October 2013 |
[2013] EWCA Civ 1177
Sir James Munby President of the Family Division
Lord Justice Goldring
and
Lord Justice Elias
Case No: B4/2013/1587
Case No: B4/2013/1598
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BOURNEMOUTH & POOLE COUNTY COURT
His Honour Judge BOND
ON APPEAL FROM BRISTOL COUNTY COURT
His Honour Judge BARCLAY
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anthony Hand (instructed by Legal and Democratic Services, Borough of Poole) for the respondent local authority (Re W)
The appellant parents in person (Re W)
Ms Charlotte Pitts (instructed by Legal Services, Bristol City Council) for the respondent local authority (Re H)
The appellant parents in person (Re H)
Hearing dates: 24 September 2013 (ReW); 26 September 2013 (ReH)
Sir James Munby, President of the Family Division:
During the last week in September 2013 we heard two cases, one (Re W) an appeal and the other (Re H) an application for permission to appeal, arising from decisions of family judges refusing parents leave in accordance with section 47(5) of the Adoption and Children Act 2002 to oppose the making of adoption orders in relation to their children. Each case has, of course, to be determined on its own particular facts, but each raises very similar issues and each has to be determined in accordance with the recent decision of this court in Re B-S (Children) [2013] EWCA Civ 1146. Accordingly, although we heard the cases separately it is convenient and may be helpful if we give a single judgment dealing with both.
Re W — the facts
This case concerns a child, a girl, born in July 2011. There had been earlier proceedings in relation to her three older siblings which culminated in the making by His Honour Judge Bond in the Bournemouth & Poole County Court on 1 July 2011 of care and placement orders for all three of them. The reasons why he made those orders are explained in a long and careful judgment he handed down on 1 July 2011. The girl we are concerned with was born about three weeks later. Care proceedings were commenced on 2 August 2011. From 9 September 2011 she was accommodated by the local authority with the parents' agreement in accordance with section 20 of the Children Act 1989. The final hearing of the local authority's applications for care and placement orders took place in April 2012. On 11 April 2012 Judge Bond gave a judgment explaining why he was adjourning the case until 23 July 2012. He expressed various criticisms of the local authority. Having been referred to my judgment in Re L (Care: Assessment: Fair Trial) [2002] EWHC 1379 (Fam), [2002] 2 FLR 730, he concluded that the parents had not been fairly treated by the local authority. From the outset the local authority was fixed in its view that the appropriate outcome was adoption. It was, as Judge Bond put it, "static in its approach", it saw "no reason to take any action to assist the parents", it did not display the open mindedness of process required of it, its view that adoption was the proper course "should not have caused the local authority to adopt such an unhelpful and closed approach to the parents."
Following the adjourned hearing Judge Bond gave another long and careful judgment on 21 September 2012 explaining why he was making the care and placement orders sought by the local authority. The parents sought permission to appeal. The application came before me on 19 November 2012. I gave permission to appeal: Re W (A Child) [2012] EWCA Civ 1564. The appeal was dismissed by the full court (Pill and McFarlane LJJ) on 12 December 2012: Re W (A Child) [2012] EWCA Civ 1828.
The child was placed with prospective adopters on 19 November 2012. On 24 April 2013 the adoption application was issued. On 15 May 2013 the parents notified the court that they wished to oppose. The matter came before Judge Bond on 6 June 2013. He had before him two applications: the application for adoption and the parents' application under section 47(5) for leave to oppose. In accordance with directions made by His Honour Judge Meston QC on 15 May 2013, Judge Bond had a joint witness statement from the parents dated 30 May 2013, to which were attached various documents they were relying upon. Their application proceeded on the basis of the statement and submissions; there was no oral evidence. Judge Bond refused the parents' application, for reasons he explained in an extempore judgment, and went on to make an adoption order. He refused the parents permission to appeal. Having been notified of the parents' intention to renew their application to this court, Judge Meston (in the absence of Judge Bond) made an order on 11 June 2013 that no arrangements for the celebratory event should be made without further direction of the court.
The parents, by then acting in person, filed their Appellant's Notice on 12 June 2013. Their argument was very clearly set out in a well argued skeleton argument dated 26 June 2013. Permission to appeal was granted on the papers by McFarlane LJ on 25 July 2013. Having referred to the decision of the Supreme Court in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, and to the fact that the hearing in Re B-S had taken place on 22 July 2013, McFarlane LJ explained why he was giving permission:
"Although judgment has yet to be given [in Re B-S], I consider that it is inevitable that the approach taken in the present case by HHJ Bond will require reconsideration in the light of Re B and the pending decision n Re B-S; this is particularly so in the present case because of the judge's finding that there had been a clear, and positive, change of circumstances since the placement order was made."
On 8 August 2013 the local authority filed a Respondent's Notice seeking to uphold Judge Bond's order on additional grounds.
Re H — the facts
This case concerns two children, a girl born in May 2009 and her younger brother born in September 2010, who, together with their two older siblings were removed from their parents' care on 6 January 2012. Care proceedings had been commenced in February 2011 and concluded on 11 May 2012 in the Bristol County Court with the making of care and placement orders by His Honour Judge Barclay in relation to all four children. His reasons were set out in a long and detailed judgment. There was no attempt to appeal against his orders. So far as concerns the two younger children, with whom alone we are concerned, the final contact with their parents was in August 2012. They were placed with prospective adoptive parents on 21 September 2012. Applications for adoption orders were made. The matter came before Judge Barclay on 29 April 2013. He had before him two applications: the applications for adoption and the parents' application under section 47(5) for leave to oppose. In accordance with directions he had made on 21 February 2013 Judge Barclay had witness statements from both parents. Their application proceeded on the basis of those statements and submissions; there was no oral evidence. Judge Barclay refused the parents' application, for reasons he explained in an extempore judgment, and went on to make adoption orders.
The parents, acting in person, filed an Appellant's Notice on 7 June 2013 seeking permission to appeal and an extension of time. It was supported by four short and succinct grounds of appeal. Their application was heard on 2 August 2013 by Black and Gloster LJJ. They directed the application to be listed for hearing before the full court with appeal to follow if permission granted. They gave the parents permission to amend their grounds of appeal to include an additional fifth ground.
The parents filed a clear and helpful skeleton argument addressing all five grounds. The local authority had filed a Respondent's Notice, one day late, on 22 August 2013, seeking to uphold Judge Barclay's order on the additional grounds set out in grounds of cross-appeal dated 3 September 2013 and seeking also an extension of time.
The appeals
Judgment in Re B-S was handed down on 17 September 2013. We had earlier alerted the parties in both cases that the hand down was imminent and invited them to file supplemental skeleton arguments if they wished. All did so.
Re W came on for hearing before us on 24 September 2013. The parents appeared in person and made oral submissions in addition to relying on the arguments set out in their original skeleton argument and a further skeleton argument filed on 23 September 2013. The local authority was represented by Mr Anthony Hand whose two skeleton arguments were dated 15 and 23 September 2013. At the end of the hearing we reserved judgment.
Re H came on for hearing before us two days later on 26 September 2013. The parents appeared in person and made oral submissions supplementing their original skeleton argument and a further skeleton argument filed on 16 September 2013. The local authority was represented by Ms Charlotte Pitts whose two skeleton arguments were dated 3 and 24 September 2013. At the end of the hearing we reserved judgment.
The law
The law is now to be found set out in Re B-S. In certain significant respects the authoritative guidance given in Re B-S about how judges must approach applications for leave to oppose under section 47(5) differs from that set out in the earlier decisions of this court in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, and Re C (A Child) [2013] EWCA Civ 431. This obviously presents potential problems when, as here, appeals are...
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