W (A Child: Leave to Oppose Adoption)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Arnold,Lord Justice Leggatt |
| Judgment Date | 21 January 2020 |
| Neutral Citation | [2020] EWCA Civ 16 |
| Date | 21 January 2020 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2019/2877 |
[2020] EWCA Civ 16
Lord Justice Peter Jackson
Lord Justice Leggatt
and
Lord Justice Arnold
Case No: B4/2019/2877
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT MANCHESTER
HHJ Wallwork
MA09019
Royal Courts of Justice
Strand, London, WC2A 2LL
Michael Jones (instructed by WTB Solicitors) for the Appellant Child by his Children's Guardian
Danish Ameen (instructed by Manchester City Council) for the Respondent Local Authority
Lukhvinder Kaur (instructed by Bromleys Solicitors LLP) for the Respondent Father
Soria Kajue (instructed by KHF Solicitors Ltd) for the Respondent Mother
Hearing date: 16 January 2020
Approved Judgment
B, a boy now aged 2 years 9 months, was removed from his parents' care in April 2017 when he was two days old. In March 2018 he was made subject to a placement order. In November 2018 he was placed with prospective adopters and in April 2019 they applied to adopt him. The parents, who have had no contact since October 2018, asked for leave to oppose the making of an adoption order. On 1 November 2019, their application was refused. B's Children's Guardian now appeals from that refusal. The parents (naturally) support the appeal; the local authority opposes it.
I will first set out the legal context for decisions of this kind before turning to consider the judge's decision and the grounds of appeal.
The legal context
The legal institution of adoption dates back to the Adoption of Children Act 1926. After several legislative iterations, the process is now governed by the Adoption and Children Act 2002 (ACA 2002). The number of adoptions, having peaked at around 25,000 in 1968, is now much smaller: 3,570 children looked after by local authorities were adopted during the year ending 31 March 2019.
The ACA 2002 brought about significant changes of principle and practice. One of these concerned the process by which parental objections to adoption are considered. Previously, the question of whether parental consent should be dispensed with was decided at the adoption hearing, the main basis for dispensation being that consent was being unreasonably withheld. In many cases, this process artificially pitted prospective adopters and parents against each other and led to hearings at which the focus was rather on the parents than the child and at which the preservation of the confidentiality of the adoptive placement was a particular concern. The ACA 2002 changed the main basis for dispensing with consent by linking it explicitly to welfare and it decoupled the decision about parental consent from the decision about adoption, enabling the court to decide the former at an earlier stage in the process. The result is that by the time the adoption application comes to be heard it is hardly ever formally opposed.
This outcome is achieved by the provisions concerning placement orders (ss. 21 and 52 ACA 2002) combined with those concerning adoption orders (ss. 46 and 47). Section 21 provides for placement orders, which authorise a local authority to place a child for adoption with any prospective adopters it may choose. By s. 21(3) and s. 52(1)(b) the court may only make a placement order if in the case of each parent or guardian of the child who does not consent it is satisfied that the welfare of the child requires the consent to be dispensed with.
Section 46, which gives the power to make an adoption order, is subject to s. 47, which provides conditions that must be met before an order can be made. The relevant condition here is s. 47(4), which together with ss. (5) reads:
“(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.
(6) …
(7) The court cannot give leave under subsection ( 3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.”
Accordingly, the parent of a child who has been placed for adoption under a placement order can only oppose the making of an adoption order with the leave of the court, granted in accordance with ss. (7).
Finally so far as legislation is concerned, the decision about whether to make an adoption order is one to which the general considerations contained in s. 1 will apply. These include the core provisions of welfare paramountcy throughout life, the delay principle and the welfare checklist, which provides that:
“(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of the Children Act 1989 (c. 41)) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, with any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.”
The abilities and perspective of parents therefore remains a consideration for the court considering an adoption application, regardless of whether leave to oppose has been given.
The proper approach to the exercise of the power under s. 47(5) has been settled by the decisions of this court in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616; [2007] 2 FLR 1069 and Re B-S (Adoption: Application of s 47(5)) [2013] EWCA Civ 1146; [2014] 1 FLR 1035.
Re P established that an application for leave to oppose adoption proceedings involves a two-stage process. First, the court has to be satisfied that there has been a change of circumstances of a sufficient nature and degree. Only if there has been such change will the court have a discretion to permit the parents to defend the proceedings, the child's lifelong welfare being the paramount consideration in that decision. As to the first stage, as Wall LJ put it:
“32. We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents in the position of S's parents should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable. We therefore take the view that whether or not there has been a relevant change in circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application.”
Re B-S contains a number of relevant observations about s. 47(5) leave applications. The first concerns the effect of leave being granted:
“13. So one can see the crucial effect of a parent being given leave to oppose under section 47(5): not merely is the parent able to oppose the making of an adoption order, but the parent, notwithstanding the making of the earlier placement order, is entitled to have the question of whether parental consent should be dispensed with considered afresh and, crucially, considered in the light of current circumstances (which may, as in the present case, be astonishingly different from those when the placement order was made).”
Next, the court explained the nature of the evaluation at the second stage:
“59. … In deciding how discretion is to be exercised at the second stage the court must have regard to the parent's ultimate prospects of success if leave to oppose is given. In deciding how discretion is to be exercised the child's welfare is paramount; that being so one can well see why the parent's prospects must be more than just fanciful and must be solid — for how otherwise can it be consistent with the child's welfare to allow matters to be reopened?”
Then come these observations about the overall approach:
“70. Section 47(5) is intended to afford a parent in an appropriate case a meaningful remedy — and a remedy, we stress, that may enure for the benefit not merely of the parent but also of the child. …
71. Parliament intended section 47(5) to provide a real remedy. Unthinking reliance upon the concept of the “exceptionally rare” runs the risk — a very real and wholly unacceptable risk — of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical...
To continue reading
Request your trial
-
M (A Child: Leave to Oppose Adoption)
...The same applies in cases where a final care order is made, though that is not the focus of this appeal. Section 47(5) 8 In Re W (A Child: Leave to Oppose Adoption) [2020] EWCA Civ 16, [2020] 1 FLR 1125 at [3–14] I gave a full account of the legal context surrounding applications under s. ......
-
A Local Authority v Prospective Adopters
...identified the legal principles by reference to the statutory provisions and to the recent decision of this court in Re W (A Child: Leave to Oppose Adoption) [2020] EWCA Civ 16 and in particular paragraphs 8 to 13 of the judgment of Peter Jackson LJ (in which he summarised the principles s......