B & R (Children), Re

An appellate court reviewing a refusal to revoke a placement order must determine whether the lower court erred in law or exercised its discretion plainly wrongly. It must not retry facts or substitute its own view merely because another conclusion was possible.

The revocation process has two stages under section 24(3) of the Adoption of Children Act 2002: a change of circumstances, followed by discretionary consideration of revocation. A parent’s separation, an unrealised aspirational plan to place siblings together, or the absence of an exact religious or cultural match may be insufficient. The child’s welfare, the passage of time and a settled, flourishing placement may justify maintaining the order. Relevant faith and cultural background must be considered, but does not dictate the outcome.

The father sought permission to appeal against Macfarlane J’s order of 17 December 2008 refusing his application to revoke the placement order concerning his youngest child, I. Earlier proceedings had resulted in findings concerning serious non-accidental injuries to another child and care and placement orders for all five children.

The father relied on his separation from the children’s mother, the failure of an intended plan to adopt all five siblings together, the suitability of prospective adopters, and the religious and cultural mismatch between the proposed placement and his own background. The central issues were whether these matters constituted a sufficient change of circumstances and, if so, whether revocation should be ordered having regard to I’s welfare.

1. Disposition. Wall LJ refused the father’s application for permission to appeal.
2. Appellate review. The Court of Appeal is a court of review. It does not retry facts, hear oral evidence or substitute its own assessment for that of the judge who heard the case. Intervention is justified for an error of law, a failure to take relevant factors into account or give them proper weight, or a conclusion that was plainly wrong.
3. Revocation process. Applying Re M (Children) (placement order) [2007] 3 FCR 681, the application involved a two-stage process. The court first had to determine whether circumstances had changed. If so, it then had a discretion whether to set aside the placement order. Macfarlane J had applied that test correctly.
4. Change of circumstances. The judge was entitled to find that the parents’ physical separation was merely cosmetic and not a substantial change. The failure of the aspirational plan to place all five children together was also capable of being treated as no change of circumstances, because the plan was not absolute and contemplated that it might not be achieved. The lack of an exact religious or cultural match with the father did not itself constitute such a change.
5. Balancing exercise. The father’s faith and background had been considered and weighed. The Court recognised the genuine cultural conflict but held that the judge had to apply English law. The judge had also considered, alternatively, the long passage of time, I’s settled and flourishing placement, and the inadequate prospect of success in removing him merely to test whether the father could care for him. Refusal of revocation was therefore within the proper exercise of discretion.
6. The Convention framework required state intervention to be lawful and proportionate, with a fair hearing. The Court was satisfied that the relevant matters had been addressed. The order was: application refused.

• Court of Appeal (Civil Division). On 1 May 2009 Wall LJ refused the father’s application for permission to appeal.
• Birmingham District Registry, Macfarlane J. On 17 December 2008 the judge refused the father’s application to revoke the placement order concerning I.
• Earlier family proceedings. Sumner J made findings concerning serious injuries to one child and made care and placement orders concerning all five children. Hughes LJ later refused the mother’s application for permission to appeal.