RAP v Serial No. 52/2006 & Ors

An application for leave to oppose an adoption order under section 47(5) of the Adoption and Children Act 2002 is a decision relating to adoption. The child’s welfare throughout life is therefore paramount.

The application requires two stages. First, the court must find a relevant change in circumstances since the placement order. The statute does not require a significant change, but the change must be sufficient to justify exercising the discretion. Secondly, the court decides leave by applying the statutory welfare principle and checklist.

A full oral welfare hearing is not automatic. The judge may determine the application on submissions, or assume the parents’ asserted facts, unless a factual issue requires oral evidence.

The father appealed, with the mother supporting him, from an order refusing the parents leave to oppose the prospective adopters’ application for an adoption order. The order followed earlier care and placement orders concerning S.

The parents relied on improvements in their circumstances, including their successful care of a later child. The judge held that the changes did not meet the leave threshold. Alternatively, he held that S’s welfare required adoption.

The appeal concerned the proper construction and application of sections 1 and 47 of the Adoption and Children Act 2002, and whether the leave application required a full welfare hearing with oral evidence.

1. Appeal dismissed. The court held that a decision whether to grant leave under section 47(5) of the Adoption and Children Act 2002 is a decision relating to the adoption of a child. It falls within section 1(7)(b), rather than section 1(7)(a), because it concerns leave for action under that Act. Section 1 therefore applies and the child’s welfare throughout life is paramount.

2. The court prescribed a two-stage process. First, the parent must establish a change in circumstances since the placement order under section 47(7). The change must be relevant to the grant of leave and sufficient, in the circumstances, to open the door to discretion. Parliament did not require the change to be “significant”, and the court must not add that gloss. Secondly, if that threshold is met, the court decides leave by reference to the child’s lifelong welfare and the section 1(4) checklist.

3. The court did not need to decide whether the parents’ improvements satisfied the first stage. The judge had correctly considered the alternative welfare question. He was entitled to give substantial weight to the existing adoption plan, S’s successful and settled placement, her need for permanence, and the limited evidence that her parents could meet her needs within her timescale. His conclusion that leave should be refused was plainly open to him.

4. Paramount welfare does not automatically require a full oral welfare enquiry. The judge has discretion over procedure and may resolve the application on submissions where that is fair. Oral evidence is necessary only where the issues positively require it. Here, the parents had not sought to give oral evidence or cross-examine witnesses, and the hearing was fair.

• Court of Appeal (Civil Division): dismissed the parents’ appeal in [2007] EWCA Civ 616.
• High Court, Family Division, sitting at Oxford County Court: refused the parents leave to oppose the prospective adopters’ application for an adoption order on 4 April 2007.