W (A Child)

Leave for a parent to oppose an adoption order under section 47(5) requires a material change in circumstances and then a welfare-based exercise of discretion. At a very late stage, the court must give great weight to the effect of reopening adoption proceedings on the child and adoptive family. Leave should not be granted unless the parent has substantive and solid, rather than merely fanciful or measurable, prospects of ultimately preventing adoption.

A procedural failure to notify a parent requires the adoption order to be set aside. It does not itself justify leave to oppose. The issues are distinct, and the welfare evaluation must not give excessive weight to speculative future consequences while underweighting the child’s present stability.

A child was removed from his mother’s care, made subject to care and placement orders, and later placed with prospective adopters. The mother had overcome drug dependency after the placement order but did not participate in the earlier proceedings.

An adoption order was made after notice of the final hearing was mistakenly sent to the wrong address. Holman J set aside that order, gave the mother leave to oppose a renewed adoption application, and directed further case-management steps.

The adopters, supported by the local authority, appealed. The central issue was whether the procedural error and the mother’s changed circumstances justified leave to oppose adoption under section 47(5).

1. Appeal allowed. The adoption order had been made without the required notice to the mother and could not stand. Setting it aside did not, however, determine whether she should receive leave to oppose a new adoption order.

2. The court approved Holman J’s analysis of the statutory lacuna. Where a valid adoption order is set aside, the legal position reverts to that immediately before its making: the placement order and the previous allocation of parental responsibility resume.

3. Leave under section 47(5) entails a two-stage process. There must first be a material change in circumstances sufficient to permit consideration of discretion. The court then determines leave by applying the child’s welfare throughout life. The court accepted the approach in Re P [2007] 2 FLR 1069, but held that it did not provide the required guidance for the second-stage discretion.

4. At this exceptionally late stage, the grant of leave would profoundly disrupt a child embedded in an adoptive family. The parent must therefore show prospects of ultimately defeating adoption that have substance and solidity. It was not enough that there was a real possibility of success.

5. Holman J had wrongly treated setting aside the procedurally flawed order as effectively requiring leave to oppose. He had also underweighted the powerful present welfare case for adoption and overvalued speculative future feelings about the mother’s lack of notice. The court preferred the stringent approach expressed in X and Y v a Local Authority [2009] 2 FLR 984.

6. The permission to oppose and the subsequent directions were set aside. An unopposed adoption order was to be granted as if made in September 2010.

• Court of Appeal (Civil Division): allowed the adopters’ appeal and set aside the mother’s permission to oppose the adoption application: [2010] EWCA Civ 1535.
• Principal Registry, Family Division: Holman J set aside the adoption order, granted the mother leave to oppose adoption, and directed further conduct of the application.
• County Court: HHJ Hallon made the adoption order on 24 March 2010 after notice of the final hearing had been sent to an incorrect address.