B-S (Children), Re

LORD JUSTICE McFARLANE :

This is an application for permission to appeal made by the mother of two young children against the determination made by Parker J sitting (apparently) as a judge of the county court in Chelmsford County Court on 7 May 2013. The proceedings concern two girls, both with the initial of their first name S, the eldest being born on 29 November 2007 and therefore now just over five and a half years of age, and the younger girl born on 22 September 2008, therefore four and three quarter years old.

The girls had been born to the mother when she herself was a teenager and living life in circumstances which made her very vulnerable and, as I suspect she now acknowledges, completely unable to provide safe or good enough parenting for her two young children.

The local authority were involved for some period of time after the children were born, but in the end the authority concluded, in February 2011 when the girls were respectively just over three and two and a half, that they should be removed from the mother's care. They were made the subject of full care orders in October 2011, and the court on that occasion made placement for adoption orders and held that the mother's consent to adoption should be dispensed with.

Contact between the mother and the girls ceased in December 2011, therefore some 18 months ago, and relatively soon after that in April 2012 they were placed with prospective adopters. In due course, the adopters issued an adoption application, and it was the adoption proceedings that were listed before Parker J on 7 May.

At that hearing, the mother, represented as she is today by Ms Obi-Ezekpazu, sought the court's permission to oppose the adoption, that permission being required under section 47(5) of the Adoption and Children Act 2002.

The judge heard submissions from all of the parties and considered the material in the case. As is well-known, the court can only grant permission to oppose adoption under section 47(7) if there has been "a change of circumstances" since the making of the relevant placement for adoption orders.

Happily for the mother, there had been an astonishing change of circumstances from the grim days to which I have already made short reference. She had parted company from the abusive, negative influence of her then partner. She had met the man who is now her husband, who is serving in the forces. She had settled down with him. They have their own young child. She has been assessed by two local authorities because of change of home circumstances, and both of those authorities, despite the adverse findings that have been made in relation to S and S, had concluded that there was no need to take proceedings in relation to the new baby. So the issue before the court was not whether there had been a change in circumstances, the issue was whether, despite that change in circumstances, the mother should now be given leave to oppose the adoption.

The judge gave a full judgment and I have the benefit of a note of judgment, which Ms Obi-Ezekpazu tells me is an agreed note of the three advocates who appeared before the judge on that day. After reciting the history, which included a summary of the adverse findings that were made about the mother as carer of the two girls and after summarising the law, the judge concluded that it was entirely improbable that the mother would ultimately succeed in having the girls returned to her care and she therefore refused permission to the mother to oppose the adoption. I am told that the adoption order was made on that day, but the judge directed that the so-called "celebration" event, which typically would be held some time on a day after that hearing, should not take place pending the mother's approach to the Court of Appeal.

Normally in deciding whether to grant or refuse permission to appeal, the court will give only a short judgment. However, on this occasion I intend to give a slightly longer judgment for a number of reasons. First of all, I am minded to grant permission to appeal for the grounds that are raised by the mother in her notice, save for ground 2, but also on a number of different bases, each of which arise out of the very recent decision of the Supreme Court in the case of Re B (A Child) [2013] UKSC 33, which was only published some 48 hours ago. I therefore wish to communicate to the court that will hear this full appeal the matters upon which I add to the grounds Ms Obi-Ezekpazu has raised.

I also set those matters out because today Ms Obi-Ezekpazu appears instructed through the Bar Pro Bono Unit, and there is no guarantee that either she or any legal representative will appear for the mother at the full appeal, and the points that I have in mind are unlikely to be points taken and argued for by any of the other parties. I also wish to indicate to the other parties the points that I have in mind, and finally I will be indicating that there is a potential here for a fundamental review of the test to be applied to applications of this sort for leave to oppose adoption, and it is very much in the interests of justice and the assistance of the court that is to grapple with this issue that the mother has proper legal representation. I do not know whether she would qualify for legal aid, but if provision of legal aid for her representation is something that is within the discretion of the Legal Aid Authority, I would very firmly encourage them to look favourably on any application for legal aid, because it will be very important for the mother's side of the argument, as it were, to be canvassed by a properly qualified lawyer when the full appeal takes place.

Having set the scene, I deal with matters in this way. The issue was whether the mother should be given leave to oppose adoption under section 47(5). The effect if leave is given to oppose is that the case can no longer proceed as it was doing under "the second condition" in s 47(4), and the adoption application would fall to be determined at a full hearing under which the "first condition" in s 47(2) would be in play, with the question of whether the child's welfare requires dispensing with parental consent to adoption being determined at that hearing in the light of the circumstances that then exist.

The statutory requirement is to establish "a change of circumstances" in s 47(7), but case law has established that, in addition to demonstrating a change of circumstances, the court will only grant leave to oppose adoption by applying s 1, namely by affording the welfare of the children throughout their lifetimes paramount consideration.

The leading case on this area of the law is Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535; [2011] 1 FLR 2153, a decision of this court in which Thorpe LJ gave the main judgment. I quote from two paragraphs in that judgment which seem to me to be of relevance in this appeal. In the second part of paragraph 17, Thorpe LJ says this:

The second quotation is from paragraph 18 in which Thorpe LJ says this:

I refer to that part of the judgment because it seems plain to me in reading that that the "third and final stage" referred to relates to the full adoption hearing if the parent is given leave to oppose. It does not relate to the decision whether or not leave to appeal the adoption should be granted.

As I have indicated, I propose to grant permission to appeal, save on ground 2. I do so partly because of a modest level of concern as to the approach apparently taken by Parker J to the test in law, but more particularly because I am concerned that the judgments in the Supreme Court in the case of Re B may materially impact upon the approach to be taken to this case, both at first instance and on appeal.

The short description of the matters I have in mind are as follows. Firstly, at two stages in her judgment, the judge apparently referred to the test that she had to apply being a three-stage test. The judge quoted from Re W (paragraph 18), as I have just done, and then went on to say: "The second and third hurdle are conflated into one test”. Then later in the next page of the judgment, she said again, "2nd and 3rd test have to be looked at together". I consider it is arguable that that displays an erroneous understanding of the test. My reading of Re W is that the third fence that Thorpe LJ describes is one that is only faced by the parent if they succeeded in getting leave to oppose the adoption and they are sitting in court arguing the point in the full hearing. That justifies to a degree granting permission to appeal, but if that was the only point in the case, I would have been reluctant to grant permission because the judge's general approach to the determination of the issue before her seems to have been more generally in line with Re W and the threshold described there.

The second reason for granting permission to appeal arises from Re B . First of all, in the judgments both of Lord Neuberger and of Baroness Hale, in particular at paragraphs 82 and 104 in the former, and 145, 198 and 215 in the case of the latter, very clear and firm descriptions are given of the high level of evidence that has to be established before a court can go on to make an adoption order in circumstances where the child's parents do not consent to adoption. Having read those judgments, and having read the Court of Appeal decision in Re W , I am concerned that the test in Re W may now need to be reconsidered in the light of the approach to adoption which has been restated in these very clear terms by the Supreme Court. In particular, I am concerned that the words of my Lord, Thorpe LJ, that I have quoted from paragraph 17, where he describes as "exceptionally rare" a parent succeeding in an application of this sort may no longer be tenable. Particularly I have in mind that a parent can only be in the position of making an application under section 47(5) if there has been a care order, a placement order, the placement of the child for adoption and an adoption application being lodged. Those are the very circumstances that trigger the jurisdiction under section 47(5).

There is justification therefore in my view in giving leave so that the test to be applied in these applications for leave as cast in Re W can now be audited in the light of the judgments of the Supreme Court in Re B to ensure that it sets the threshold at a proportionate level.

Thirdly, and in a different context, each of the Justices in the Supreme Court describes the approach that is now to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge, but are decisions which impact upon Convention rights, the human rights, of one or more of the parties. Where an appeal takes place, Re B makes it plain that the appellate court has a duty to review the first instance judge's compliance or otherwise with her obligation not to determine the application in a way that is incompatible with the Article 8 rights that are engaged. Arguably such a review is, in my opinion, justified on the facts of this case.

Previously I would have applied a test of considering whether the prospective appellant here has a reasonable prospect of establishing that Parker J was "plainly wrong" in refusing permission to oppose. Now it seems that the test is one that is potentially lower, namely of considering whether Parker J was "wrong". There is a need first of all to clarify which of those two tests does apply to an appeal of this sort on this topic, and if the lower level is applicable, namely that the judge was "wrong", then on the facts of this case it becomes less clear that the mother has no reasonable prospect of persuading the full court that Parker J was indeed "wrong". That is particularly the case where, as I remind myself, the issue here is not the ultimate question of whether or not an adoption order should be made, but simply whether the mother can oppose the making of the order at a full hearing where the issue of parental consent is then determined afresh in the light of all the current circumstances.

I should clarify that by using the word "simply" in the previous sentence, I do not in any way underestimate the impact that a decision even to grant leave to oppose would be likely to have on the adoptive family and potentially the children in their care.

So those are my reasons for granting permission to appeal. I have made it plain to the mother that it will be a matter for the full court when it hears the appeal how this case proceeds, and she should not in any manner take from my favourable decision this morning that ultimately she will succeed or fail in her main endeavour of having the orders that are currently in place set aside.

Equally, the adopters and those of the social services who support them I hope will understand that unfortunately for them this predominantly legal issue has arisen largely as a result of the Supreme Court judgment in Re B , generating a need for this matter to be looked at again. I hope they will see my decision in that light, and not be unduly perturbed or discomforted by the need for the Court of Appeal to look at this matter.

What is plain to me is that we need to get on with this and hold the appeal hearing as soon as reasonably can be arranged. Inevitably, the attempt to obtain funded legal representation for the mother may take some time, and inevitably all parties, including the mother, will need to file skeleton arguments that deal with the points that I have raised. But it is my hope that this case can be heard before the end of July. I will make directions that it is to be set down for a one-day hearing on a date before 31 July before a court of three Lord or Lady Justices.

I will direct that each party, including the mother, shall file and serve a skeleton argument dealing with these points. It seems to me that they will need to have the transcript of the judgment I have just given, and so it is pointless requiring those skeleton arguments to be filed before Monday, 1 July, and I will direct that they be filed by Monday, 1 July. I direct that the judgment I have just given is to be transcribed with the utmost urgency so that it is available to the parties as soon as possible.