M (A Minor), Re

When a parent seeks leave to oppose an adoption order after a placement order, the court must apply a two-stage statutory approach. It must first decide whether circumstances have changed since consent or the placement order. If so, it must exercise the welfare discretion under the Adoption and Children Act 2002, having regard to the statutory checklist. The leave application is not determined merely by asking whether adoption would ultimately serve the child's best interests. A judge need not mechanically repeat every checklist factor when giving reasons. Fairly read, the reasons must show consideration of the relevant welfare matters and explain why the balance falls against granting leave.

The local authority intervened after the child's birth. An interim care order was made on 23 May 2008, followed by care and placement orders on 29 May 2009. The mother later applied for leave to defend the adoption order application. His Honour Judge Booth refused that application on 6 August 2009. Permission to appeal was initially refused but was granted by Ward LJ on 28 September 2010, and the adoption proceedings were stayed.

The mother argued that the judge had applied the ultimate welfare test for adoption rather than the statutory test governing leave, and had failed adequately to apply the checklist in the Adoption and Children Act 2002. The central issue was the correct approach to the leave discretion and the adequacy of the judge's reasons.

Thorpe LJ, with Aikens and Tomlinson LJJ agreeing, dismissed the appeal. The formal order was that the appeal was refused.

1. The statutory approach to an application for leave to oppose an adoption order is twofold. The court must first consider whether there has been a change in circumstances since parental consent or the placement order. If that hurdle is met, it must exercise the wider welfare discretion under the Adoption and Children Act 2002, guided by the relevant provisions of section 1 and its welfare checklist.
2. Following Re P [2007] 1 WLR 2556, the court accepted that an application of this kind falls within section 1(7)(b)'s definition of a decision relating to adoption. Re P and Re W [2010] EWCA Civ 1535 provided ample guidance on how the lower court should exercise its discretion.
3. The judge below had expressly identified the two-stage test. He found that the mother had established a sufficient change of circumstances, then exercised the wider welfare discretion against granting leave. The submission that he had instead asked only whether adoption was in the child's best interests was legally sound as a criticism of the wrong test, but the judgment contained no language or implication showing that this was the test actually applied.
4. Although it would have been preferable for the judge to structure his reasons expressly by reference to each checklist factor, his reasons adequately explained the factors that tipped the balance against leave. They comprehended the relevant statutory area and disclosed no error of law.

• Court of Appeal (Civil Division): Permission to appeal was granted by Ward LJ on 28 September 2010. The appeal was dismissed and the order was recorded as appeal refused.
• Blackburn County Court: His Honour Judge Booth made care and placement orders on 29 May 2009 and refused the mother's application for leave to defend the adoption order application on 6 August 2009.