D, Re (Leave To Oppose Making of Adoption Order) (Rev 1)

This appeal concerns an application made by a mother under section 47(5) of the Adoption and Children Act 2002 (“the Act”) for leave to oppose the making of an adoption order in relation to her child, L.

In September 2013, this court handed down judgment in the case of Re B-S [2013] EWCA Civ 1146, dealing with a mother’s application under section 47(5) of the Act. Following Re B-S, the court heard two further cases raising similar issues. The judgment dealing with those two cases was handed down on 16 October 2013. Its long title is In the matter of W (a child); In the matter of H (children) [2013] EWCA Civ 1177 and I will refer to it simply as Re W and H. Although the hearing in the present case took place on 15 October 2013, counsel were given sight of the draft judgment in Re W and H in order that their arguments might take account of it, as they did.

I do not intend to travel again over the ground that was covered so recently in Re B-S and Re W and H. This judgment proceeds upon the basis of the law as it is found in those authorities; nothing that I say is intended to change or develop it. My concern is the application of that law to the facts of the present case.

The matter was listed before us for determination of whether permission to appeal should be granted, with the appeal to follow if we did give permission. The issue of permission was not, in fact, dealt with separately during the hearing. For my part, I would grant permission and this judgment therefore proceeds upon the basis that I am dealing with a substantive appeal.

L was born in December 2010 and is therefore 3 ¾ years old. The appeal is brought by her mother (M) against the refusal, on 13 June 2013, of His Honour Judge Caddick to grant her permission under section 47(5) to oppose the making of an adoption order in respect of L.

At the time of L’s birth, her mother was only 16 years old and had spent a considerable part of her life in care. Following L’s birth, M and L lived with M’s foster carer until, in April 2011, the placement was terminated. She and L moved to another foster placement, but L was removed from M’s care at the end of May 2011 and has not lived with M since.

A care order and a placement order were made in relation to L on 18 May 2012 by the family proceedings court. The court found that M was unable to meet L’s physical and emotional needs consistently having, for instance, neglected her care, not maintained proper hygiene, left L in the care of the foster parent for extended periods including on one occasion when she failed to return because she was intoxicated. Matters culminated in a sequence of volatile behaviour on 26 May 2011 when M packed and left the foster placement with L, was returned by the police, went again leaving the baby with the foster carer, and later returned in the early hours of the next morning shouting, swearing and pushing furniture around. It appears that there was concern also about M’s relationships with abusive and violent men. The magistrates’ reasons recorded that since L was born, M had moved placement 10 times, the majority of placements having been terminated as a result of her behaviour and her apparent inability to comply with boundaries. In the week of the hearing before the family proceedings court, she had started to move into a flat to live independently but the magistrates took the view that her ability to live independently had not been tested and she had not yet been able to demonstrate that she could provide a stable home for her daughter. They accepted the guardian’s view that M still needed to demonstrate maturity and stability over a long period of time and that this would not be achieved soon enough to meet L’s needs.

L was placed with adopters on 17 September 2012, so had been with them for nearly nine months when Judge Caddick considered M’s application in June 2013. M had not had contact with her since June 2012.

When the application first came before the judge, it was in what he described as “unprepared form” and he gave M a few days in which to prepare a statement. She also gave oral evidence. She said that her circumstances had changed substantially since the care and placement orders were made. She said that she had very much seen the error of her ways. She said she had matured significantly, got her own rented flat and got employment. She said she was learning to drive to improve her employment options. She said she was avoiding undesirable associates and relationships with men. She said she no longer drank alcohol except for an occasional glass of wine. She wanted to have L returned to her on a gradual basis.

Judge Caddick said that he broadly accepted what M said in her statement and oral evidence. He acknowledged that she had done a great deal and had been working very hard to improve things in various ways, including caring very well for the flat that she had had for eight months, which contrasted with the situation at the time of the care proceedings when she did not have the ability to look after herself and care for her accommodation.

He considered that some features weighed against what M had said. The first feature was that M had not taken up the counselling advised by a psychologist who reported in 2011. The judge seemed disposed to be understanding about this for reasons he set out but he still considered it worthy of mention. He thought the second feature more important. That was that in June 2012 M had assaulted a police officer whilst drunk, which had resulted in a prosecution, a fine and a requirement that she perform unpaid work. The judge made allowance for the incident having taken place a month after the hearing before the magistrates, at the time of M’s goodbye visit with L. However, he considered that it “does illustrate some element of not being entirely mature as at that stage, one year ago”. The third feature revolved around an incident with a man which took place in February 2013. The circumstances are not entirely clear from the judgment but, in addition to what we have, the judge seems to have had not only M’s oral evidence but also a police record relating to the incident. He said that M had accepted in evidence that she had exaggerated what happened to the police. The judge said of this:

“So, again, on that admission by the mother that, perhaps a little more worryingly, is, coming into this year, again something of an immaturity about it on her part, persisting from the kind of things that have happened pre-May 2012.”

The judge’s conclusion was that there had been a change of circumstances sufficient to require him to consider whether leave to oppose should be given and he went on to do so.

He felt that although M’s position was better than it was in May 2012 when the orders were made, it would be “highly improbable that a court could say that the position was sufficiently different … to enable M to succeed in opposing an adoption application”.

He considered matters from L’s point of view, noting that she not had contact with M for the last year and that she had been placed with the adopters for nearly 9 months and was well settled there and attached to them. He also commented that the adoption proceedings were “well advanced”.

There had already been delay in settling L permanently since she was taken into care in May 2011 and the judge took into account that, if M were given leave to oppose the adoption, it would extend the delay. He proceeded on the basis that further assessments of M would be needed and the delay would be months which would be bad for L when what she needed was permanence as soon as possible. He observed that the process would also run the risk of upsetting the placement with the adopters and he said “[p]utting it another way, further delay is against the interests of the “prospective adopters”, He continued:

“Also, of course, that further delay is against the welfare interests of the child. Of course it is argued and perfectly understandably but it might not be in the long term if M is successful and successfully opposes the adoption….” [sic]

He nevertheless concluded that it would not be in L’s interest to subject her and the adopters to further delay and, as for M:

“Although in the short term interests, as M would see it to give her that chance, would in my view not in the long term be something that would be for her because it would have the effect of raising false hope only for it to be dashed later on.” [sic]

These various conclusions about the facts of the case were preceded by the judge’s resume of the law as he saw it. The decision pre-dated Re B-S; the judge cited Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 [2007] 2 FLR 1069 §55 which set out the two stage process utilised on a section 47(5) application, the child’s welfare throughout his or her life being paramount at the second stage. The judge also cited Re W (Adoption Order: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535 [2011] 1 FLR 2153 of which he said:

“It reminds courts that the test is stringent and not based upon there being merely ‘a real possibility’ that the court may be persuaded not to grant an adoption. It has to have a ‘solid basis’: see paragraphs 18 and 20.”

The submissions made by Mrs Connolly QC, who with Mr Tregidgo represented M before us, revolved very much around the notion that the judge had given too much weight to short term considerations and not enough to L’s long term interests, particularly the benefits to her of being brought up by her own mother.

Mrs Connolly complained that nowhere in his judgement had the judge referred to the welfare checklist in section 1(4) of the Act, that there was nothing to indicate that he had regard at all to section 1(2) to the effect that the paramount consideration for the court had to be the child’s welfare throughout her life and that he failed to provide any reasoning as to why adoption was in L’s interests rather than L having the chance to be brought up by M.

She also submitted that the judge gave inappropriate weight to the position of the adopters. She referred us to §74(viii) and (ix) of Re B-S which warn that judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given or to the argument that granting leave to oppose will have an adverse impact on the prospective adopters and thus on the child. She said that there was nothing in this case to suggest that any upset would be other than short term.

Mrs Connolly rightly pointed out that the mere fact that the child has been placed for adoption is not determinative and nor is the mere passage of time (see Re B-S §74(vii)). Similarly, she submitted, the judge’s observation that the adoption proceedings were “well-advanced” was irrelevant given that an application under section 47(5) can only be made once such proceedings are on foot.

She submitted that the judge’s principal concern here had in fact been about delay and the unravelling of the process that had begun with L’s removal from M’s care in May 2011 and that he had not balanced against this the benefits were M ultimately to be able to care for L or taken account of the fact that meanwhile L would remain with the prospective adopters and was too young to be directly affected by the uncertainty.

She submitted that the judge failed to provide reasons for his conclusion that it was highly improbable that the court could say that the position was sufficiently different from that in May 2012. There was then a close emotional attachment between M and L, she said, with good contact taking place. She submitted that the problem was M’s immaturity and chaotic lifestyle and M had made marked changes in this; the judge failed to say why these were insufficient.

Apart from the judge’s failure to mention section 1 of the Act, little, if any, exception was taken on M’s behalf to the judge’s statement of the applicable law. Since Re B-S, he would not have used the word “stringent” in the passage I have quoted at §17 above (see Re B-S §68) but Re W and H makes it clear that such a reference is not fatal and that what matters is the effect of the judgment read as a whole.

There is no question but that the judge had the appropriate two stage process in mind. His finding that there had been a sufficient change in circumstances to take him to stage two is not challenged; the appeal revolves around his treatment of the second question, that is whether leave to oppose should be given.

In setting out the essence of Re B-S in Re W and H, the President said this of the second question:

“In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity.” (§20)

and

“In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.” (§21)

Cases are so dependent on their own facts that it is not often helpful to have reference to the facts of other cases. However, in the early aftermath of Re B-S, it may be of assistance to reiterate here the facts of the President’s “clear and telling” examples.

In Re B-S, the mother’s circumstances had changed very significantly for the better. The children had been removed from home in February 2011, had ceased to have contact with the mother in December 2011 and been placed for adoption in April 2012, just over a year before Parker J heard the matter, in the expectation that they were to be there forever, as they were old enough to understand. They had had “terrible experiences” before they came into care. They had a particular need for stability and care and any upset was a risk to their emotional state. As for the mother, Parker J accepted that her life had turned round and the “signs are good” although she did consider that there was a risk that she might not be able to cope if the care order was discharged. Parker J concluded that it was “entirely improbable” that the mother would succeed in opposing adoption; her refusal of leave to oppose was upheld in the Court of Appeal which concluded its judgment with the observation that the judge was right to conclude that taking all the relevant factors together, in the children’s interests the mother’s application had to be dismissed.

In Re C (A Child), the child was taken into care in August 2007, days after he was born, and remained there until he was placed for adoption in November 2010. In April 2011, the prospective adopters applied for an adoption order. The child’s father was unaware that he was the father of the child. It seems that the mother had always told him he was not, although he had begun to have doubts towards the end of 2010. In about May 2011, the father became aware of the adoption proceedings and steps then taken on his behalf led to a DNA test which indicated his paternity. When he learned of this in October 2011, he applied next day for leave to oppose the adoption order. That was refused in February 2012, by which point the child was 4 ½ years old. For the purposes of the appeal against this refusal to the Court of Appeal, the local authority was willing to assume that, in combination with his sister, the father could provide for the child’s physical needs to a good standard. The appeal was, however, dismissed, the President observing (§37):

“Standing back from the detail, the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?”

Although Judge Caddick in the present case did not use the word “solidity” in connection with his assessment of M’s prospects of successfully opposing the adoption, that was clearly what he was looking for, finding it lacking as we can see from his statement that it would be “highly improbable” that the court would say the position was sufficiently different to enable M successfully to oppose the adoption application.

Was he wrong to assess M’s chances in this way and/or did he fail to demonstrate in his reasoning how he arrived at this conclusion, as Ms Connolly said?

In answering this question, it is important to read the judgment as a whole. As the court observed in Re B-S (see §74(ii)), the question of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave are almost invariably intertwined and so they were here. The position that the judge reached, as he said expressly in §18, was that there had been a change in circumstances but that there were also features of the period following the making of the placement order which weighed against the progress that M had made, three in particular being identified in §§18 to 26 of the judgment. The judge’s concern about these was that the offence in June 2012 and the incident in February 2013 in particular indicated remaining immaturity on the part of M; in my judgment he was entitled to take that view, even allowing for the difficult circumstances in June 2012. He rightly put these events into the context of M’s previous immaturity and, although he could perhaps have reasoned this stage in his decision making more fully, we can see, I think, from §38 that, quite independently of the question of how L would be affected by delay and/or the disruption of her placement, he concluded that the overall picture was such that M was unlikely to be able to establish that her position was different enough to persuade a court that it was in L’s interests to be placed with her. He had the particular advantage of having heard M’s oral evidence in which the events since the placement order were explored and it seems to me that he was entitled to arrive at this assessment, which deprived the M’s prospects of the necessary solidity.

It was entirely appropriate that the judge should consider L’s circumstances and those of the adopters. Re B-S underlines that what is paramount in adoption decisions is the welfare of the child throughout his or her life and that it is important for judges not to attach undue weight to the short term consequences to the child of giving leave. It does not, however, say that even short term consequences for the child are completely irrelevant and they certainly are not. Similarly, Re B-S recognises that in some cases the adverse impact on the prospective adopters, and thus on the child, is something which may have considerable force (§74(ix)) although equally it is important that undue weight should not be given to the argument for the reasons set out in that paragraph.

I do not accept the argument that the judge omitted to consider, or to give proper weight to, the benefits to L of being brought up by her own mother. That vitally important factor is recognised in §37 of the judgment, albeit in quite short form and without express reference to the provisions of section 1 of the Act. It was also stressed in the passage which, in directing himself on the law, the judge cited from Re P, which concludes with a statement that the paramount consideration of the court must be the child’s welfare throughout his or her life. As I see it, the core of the judge’s decision was that he just did not consider that the changes in M (for which he properly recognised she should be commended) were going to be sufficient to enable a court to conclude that she could bring up L at the present time.

I have not been persuaded by the arguments so cogently advanced on M’s behalf that the judge erred in his approach to this case or failed to set out his reasoning for his decision sufficiently. I would accordingly dismiss the appeal.

I would make one further observation. In opposing the appeal, Mr Choi for the local authority argued in his written skeleton (prepared before he had the benefit of the draft judgment in Re W and H) that the fact that an adoption order has now been made in relation to L undermines M’s grounds of appeal. In the light of Re W and H, this argument is not a good one. If the appeal against the refusal of leave to oppose the making of the adoption order were to have succeeded, the adoption order which followed would have had to be set aside (see §29 of Re W and H). I invite attention to §§30 and 31 of Re W and H which set out the practice that should be followed to ensure that an adoption order is not made in cases where there is an appeal to this court.

I agree that, in the circumstances set out in the judgment of Black LJ, with which I agree, permission to appeal should be granted but the appeal should be dismissed.

I also agree.