C (A Child), Re

Under the Adoption and Children Act 2002, section 47(5), permission to oppose adoption involves two stages. The court first asks whether circumstances have changed since the placement order. If not, the application ends. If so, the change opens a discretion exercised by reference to the child’s welfare. A parent’s progress may satisfy the threshold without making opposition appropriate. The court may weigh progress, prognosis, parental cooperation, the child’s attachments, the need for permanence, delay and the parties’ family-life rights. Appellate intervention requires an error of law or an arguably improper exercise of discretion. The appellate court should not substitute its own view where the decision was plainly open to the judge.

The appellants, the child’s parents, sought permission to appeal from an order made by the Liverpool County Court on 23 April 2008. Her Honour Judge Daley had refused permission for them to oppose the prospective adoption of their daughter, who was subject to care and placement orders made in earlier proceedings.

The parents relied principally on the mother’s substantial progress through psychotherapy. The judge accepted that this amounted to a change of circumstances, but concluded that the child’s need for permanence, her existing attachments and the uncertainty of the mother’s future ability to parent meant that permission should be refused. The Court of Appeal had earlier refused permission to appeal against the care and placement orders. The central issues were whether the judge had applied the correct legal test and whether her exercise of discretion was arguably open to appellate interference.

Application refused.

1. The Court of Appeal could not reopen the earlier care and placement orders or investigate the circumstances in which the child had been removed. Those orders had been the subject of an unsuccessful application for permission to appeal, so the present court had to proceed on the basis that they were properly made.
2. Section 47(5) of the Adoption and Children Act 2002 establishes a two-stage process. The court must first decide whether there has been a change in circumstances since the placement order. If there has not, the application cannot proceed. If there has, the court has a discretion to grant permission, exercised according to the child’s best interests.
3. The judge correctly applied that test. She properly treated the mother’s engagement with psychotherapy as a significant change of circumstances, thereby allowing the welfare discretion to be exercised.
4. In exercising that discretion, the judge was entitled to consider the mother’s progress and the absence of a reliable prognosis, the father’s continuing anger and lack of cooperation, the child’s primary attachments to her carers and adopters, the need for permanence, the consequences of delay, and the competing family-life rights of the parents and child. She was entitled to conclude that denying permanence while awaiting an uncertain psychological outcome was contrary to the child’s interests.
5. The appellate question was not whether the Court of Appeal would have reached the same decision. It was whether there was an error of law or an arguable improper exercise of discretion. The judge’s conclusion was plainly open to her, and a further hearing would only increase delay and distress.

• Court of Appeal (Civil Division): On 22 July 2008, Lord Justice Wall refused the parents’ application for permission to appeal. [2008] EWCA Civ 958
• Court of Appeal (Civil Division): On 9 October of the previous year, the court refused permission to appeal against the care and placement orders.
• Liverpool County Court: On 23 April 2008, Her Honour Judge Daley refused permission for the parents to oppose the prospective adoption.
• Liverpool County Court: In earlier care proceedings, the court made care and placement orders in relation to the child; she was placed with prospective adopters on 25 May 2007.