M (A Child), Re

On an application for leave to oppose adoption, once a parent establishes a change of circumstances, the further welfare inquiry may require consideration of whether the proposed opposition is arguable and not hopeless, rather than prematurely deciding whether opposition would itself be in the child’s best interests. The judgment left that issue open because it concerned permission to appeal. A judge need not mechanically recite every checklist factor in every case, but should ordinarily address the relevant factors. These include the lifelong effect of adoption, the consequences of ceasing to belong to the original family, the ending of the harmful relationship, and the child’s relationship with the birth parent. Failure to engage adequately with those matters may provide an arguable ground of appeal.

The mother of a young child sought permission to appeal HHJ Booth’s dismissal of her application for leave to oppose adoption. The child had been placed in care shortly after birth. By the time of the application, the mother had made substantial improvements, and the judge accepted that she had established the required change of circumstances. The Court of Appeal considered whether the welfare stage should focus on the prospects and arguability of the proposed opposition, and whether the lower court had adequately considered the statutory welfare factors. The adoption hearing was imminent, and the respondents were neither present nor represented.

1. Permission and stay. Permission to appeal was granted because the proposed grounds raised a good ground for argument. The adoption proceedings were stayed and the court was to be notified immediately.
2. Welfare stage. The court accepted that the mother had satisfied the first limb of the twofold test identified in Re P (a Child) (Adoption Order: Leave to Oppose Making of Adoption Order) [2007] All ER 334, [2007] EWCA Civ 616, namely establishing a change of circumstances. The proper approach to the second, welfare, limb was left for argument. It was arguable that the question should be whether the proposed opposition was at least arguable, with a realistic prospect of success, rather than whether opposition would itself be in the child’s best interests on the facts then known. The latter approach might prejudge the adoption decision and deny a fair hearing.
3. Checklist factors. The judge’s approach to the statutory checklist was also arguably inadequate. Although mechanical consideration of every factor is not invariably required, it is useful to address each factor, consistently with the guidance in Re EH (ex parte London Borough) [2010] EWCA Civ 344. The lower court had focused on the child’s need for stability but arguably failed sufficiently to weigh the lifelong effect of losing membership of the original family and becoming adopted, the fact that the harmful relationship had ended, and the child’s present or potential relationship with the mother.

1. Court of Appeal (Civil Division): Permission to appeal granted and the adoption proceedings stayed.
2. Blackburn County Court: HHJ Booth dismissed the mother’s application for leave to oppose the adoption order.