M (A Child), Re

This is an application by the mother of a young child, now two years and four months old, seeking permission to appeal the order made by HHJ Booth in the Blackburn County Court dismissing the mother’s application for leave to oppose the adoption of that child. The adoption hearing is to take place on Thursday next, 30 September. I am going to give permission to appeal and I am therefore going to stay the adoption proceedings and the court should be notified of that as soon as possible.

The reasons for my coming to that decision are not the appearance on behalf of the mother of Ms Eleanor Platt QC, great though the pleasure is to have her here and great though the surprise was to see her; but she has persuaded me, in her inimitable way, that there is a good ground for argument.

It runs something like this. The child was placed in care at virtually birth mainly because of the unsatisfactory nature of the relationship this very young mother then had with a 40-something year old man, who was deeply unsatisfactory. Since then, the care order having been made in May 2009, the mother has made considerable advances and improvements in her life, the detail of which I need not enumerate, but which improvements were sufficient to satisfy the judge that she had overcome the first limb of the twofold test this court has laid down in the case of Re: P (a Child) (Adoption Order: Leave to Oppose Making of Adoption Order) [2007] All ER page 334, [2007] EWCA Civ 616.

So she has established the change of circumstance. The question then is: how do you apply the welfare test which then has to be satisfied? And there are essentially two points that merit argument. The first, which I may express less eloquently than Ms Platt, is this. Is the test to be applied this: whether on the facts known at the time of this application for leave to oppose adoption will be in the best interests of the child? Or is the question: Is it in the best interests of the child that a not hopeless case for opposition be heard? It seems to me arguable that the latter is the proper approach to adopt in these circumstances, because to ask the former question is perhaps to prejudge the adoption question and not therefore give a fair right of hearing to the mother opposing adoption.

Obviously all cases will be different, but an application to oppose should involve an exercise of assessing to some extent the prospects of success of the opposition. But it should be viewed more perhaps -- and this is the issue the court will have to decide -- in terms of whether this is an utterly hopeless case, or whether this is a case which is at least arguable in the sense that, even if there is not a better than even chance of success, there is some realistic prospect of success in much the same way as we decide whether to grant permission or not.

But the second ground of attack against the judgment is against the perfunctory --that is my word, not Ms Platt’s word -- way in which the judge approached the exercise of discretion. The Act requires the court to have regard to a list of factors and, whilst it is not always imperative that the checklist be mechanically considered by a judge, it is not a bad thing for the judge to go through each and every factor, for the reasons adumbrated by this court in Re: EH (ex parte London Borough) [2010] EWCA Civ 344. Here it is arguable that the judge had regard only to the child’s particular need for stability and did not sufficiently weigh the likely effect on the child throughout her life -- important words, perhaps -- of having ceased to be a member of the original family and to become an adopted person. The judge did not adequately have regard to the fact that the harm was in a relationship which had come to an end and that change had been effected, and did not have regard to the relationship the child had or was capable of having with a young mother making considerable strides to improve herself.

So on both those grounds there is perhaps a good ground for inviting this court to consider the matter, and I give permission accordingly.