I (A Child)

Before deciding under section 52 of the Adoption and Children Act 2002 that a child’s welfare requires adoption, the court must actively and in detail consider the advantages and disadvantages of any realistic alternative order, including special guardianship. This comparison is especially important where the natural family is expected to remain meaningfully involved in the child’s life. The Court of Appeal granted permission to appeal on that issue. It refused permission on a challenge to the Adoption Panel process, holding that where the judge has fully considered the evidence, the judge’s decision is the principal focus and alleged panel defects are of lesser significance.

The child had lived with foster carers since discharge from hospital shortly after birth. The local authority sought a placement for adoption order, with the foster carers intended to become the adopters. The father and paternal grandmother had maintained regular contact with the child.

HHJ Atkins made the placement order, dispensed with the father’s consent and made no contact order because continued contact had been agreed. Permission to appeal had previously been refused by Ward LJ and Black LJ. On the renewed oral application, the principal issues were whether the judge had properly considered special guardianship as an alternative to adoption, whether the contact issue required a formal order, and whether alleged defects in the Adoption Panel process were arguable.

Permission to appeal was granted in part. Permission was granted on grounds 2, 3, 4 and 5, subject to the appellants drafting a further ground addressing the failure to engage adequately with special guardianship. Permission was refused on Ground 1, concerning the Adoption Panel process.

1. The legal issue before the lower court was the status that the child would have in the care of the foster carers. The distinction between adoption and special guardianship should have been central, particularly because the paternal family was expected to continue playing a meaningful part in the child’s life.
2. Under section 52 of the Adoption and Children Act 2002, the court could not determine whether the child’s welfare required adoption, rather than another form of order, without actively and in detail considering the advantages and disadvantages of the realistic alternative, here special guardianship. Re P [2008] EWCA Civ 535 was directly in point because the test for dispensing with consent required that exercise.
3. The lower judgment referred to special guardianship only briefly and did not sufficiently engage with the comparison required by section 52. That omission made the proposed grounds of appeal arguable. The Court of Appeal did not express a view on whether adoption or special guardianship was ultimately the correct order.
4. The Adoption Panel challenge was not arguable. Where a judge has fully considered the evidence and made the decision, the appellate focus is the judge’s decision. Whether the panel process was flawed, including in light of Re B [2002] 1 FLR 545, was of lesser significance. The application was therefore granted in part.

• Court of Appeal (Civil Division): On 24 July 2012, Lord Justice McFarlane granted permission to appeal in part, subject to an additional ground concerning special guardianship, and refused permission on the Adoption Panel ground.
• Principal Registry Family Division: HHJ Atkins made a placement for adoption order on 17 February 2012, dispensed with the father’s consent and made no order for contact because continued contact had been agreed.
• Earlier Court of Appeal decisions: Ward LJ refused permission on 24 January 2012 in relation to the earlier refusal of further assessment. Black LJ refused permission on paper on 30 April 2012 on grounds concerning the Adoption Panel process, welfare and the effect of ending membership of the original family.