A (a minor), Re

On an application under section 42(6) of the Adoption and Children Act 2002, the child’s welfare is relevant but is not paramount. The court must consider whether the proposed adoption application has a real prospect of success. Those inquiries will usually overlap.

The identity of the optimum adopter is ordinarily determined in adoption proceedings, rather than when care and placement orders are made. If a foster parent has a real prospect of establishing that adoption by that person would best serve the child’s lifelong welfare, delay will rarely justify refusing leave.

A local authority placed a six-day-old child with an experienced foster mother on a short-term basis. After eight months, the foster mother sought leave under section 42(6) of the Adoption and Children Act 2002 to apply to adopt the child. The local authority opposed her candidacy and had begun introducing the child to approved prospective adopters. The mother and the child’s former Children’s Guardian supported the foster mother.

His Honour Judge Bellamy refused leave. He relied substantially on the local authority’s assessment, the delay which adoption proceedings would cause, and his view that the family proceedings court had already approved a plan excluding the foster mother. The foster mother sought permission to appeal and, if permission were granted, an immediate substantive appeal. The central questions were whether the judge’s discretionary decision was flawed and whether the Court of Appeal should itself grant leave.

1. Appeal allowed unanimously. The judge’s exercise of discretion was flawed. The Court granted permission to appeal, set aside the refusal and granted the foster mother leave to apply for an adoption order.

2. Under section 42(6) of the Adoption and Children Act 2002, the child’s welfare is relevant but, by section 1(7), is not paramount. The court must also consider whether the proposed substantive application has a real prospect of success. Analysis of that prospect will almost always include consideration of welfare, although the two inquiries are not invariably identical.

3. The judge gave inadequate consideration to the Children’s Guardian’s support for a full assessment of the foster mother. Before rejecting that view, the judge needed to examine its reasons and the Guardian’s rejection of the local authority’s objections. An adjournment for a report, and preferably brief oral evidence, was available. Alternatively, the existing evidence justified granting leave.

4. The judge also failed to ask whether the foster mother had a real prospect of persuading the court that adoption by her was the optimum placement. Instead, his approach was insufficiently independent of the local authority’s conclusion. Suitability to foster does not establish suitability to adopt, but neither does it establish unsuitability. Some of the authority’s objections required much more critical examination.

5. The family proceedings court had decided only that the child should enter permanent care and be placed for adoption. It had not determined the identity of the optimum adopter. Close scrutiny of a care plan should not ordinarily extend to resolving competing claims about the identity of prospective adopters. That issue can be determined in later adoption proceedings. Exceptionally, proposed adopters’ credentials may be examined during care proceedings where necessary to decide whether adoption itself is in the child’s interests.

6. Delay and the disruption of an established prospective placement were relevant. Nevertheless, where there is a real prospect that adoption by the foster parent would best serve the child’s lifelong welfare, delay will rarely justify refusing leave. The grant of leave did not determine the merits: the foster mother’s candidacy remained subject to full investigation and adjudication.

1. Court of Appeal (Civil Division): Permission to appeal was granted, the appeal was allowed, the county court’s refusal was set aside and leave to apply for an adoption order was granted: [2007] EWCA Civ 1383.
2. Coventry County Court: His Honour Judge Bellamy refused the foster mother leave under section 42(6) of the Adoption and Children Act 2002 to apply for an adoption order.
3. Family proceedings court: The court made care and placement orders concerning the child. It did not determine the identity of the optimum adopter.