B-S (Children), Re

Non-consensual adoption is a last resort. It is permissible only where adoption is necessary and no less interventionist option will meet the child’s welfare needs. The court must consider all realistic alternatives, weigh their advantages and disadvantages, and receive evidence and reasons sufficient to explain why nothing short of adoption is appropriate.

Under section 47(5) of the Adoption and Children Act 2002, the court must first identify a change in circumstances. If one exists, it must undertake a welfare evaluation of whether leave to oppose should be given. The parent’s prospects concern resisting adoption, not necessarily securing the child’s return. Placement and the passage of time are relevant but not determinative. On appeal, the question is whether the evaluative decision was wrong, rather than plainly wrong.

The mother appealed against an order made by Parker J in the Chelmsford County Court on 7 May 2013. The judge refused her application under section 47(5) of the Adoption and Children Act 2002 for leave to oppose adoption orders concerning her two children and then made the adoption orders.

The children had been removed from her care, made subject to care and placement orders, and placed with prospective adopters. The mother relied on a substantial and positive change in her circumstances. The appeal concerned the proper application of section 47(5), including whether the approach in Re W (Adoption: Set Aside and Leave to Oppose) required reconsideration following the Supreme Court’s decision in In re B (A Child) (Care Proceedings: Threshold Criteria).

Disposition and statutory test

1. Appeal dismissed. The Court of Appeal held that Parker J had not been wrong in refusing leave to oppose, although the judge had wrongly conflated the second and third stages described in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535.
2. Applications under section 47(5) of the Adoption and Children Act 2002 involve two stages. First, the court must decide whether there has been a change in circumstances since the placement order. The change need not be significant, but must be of a nature and degree sufficient to open the door to the second stage. Secondly, the court must undertake a judicial evaluation of whether leave to oppose should be granted. The child’s welfare throughout life is paramount.
3. The second-stage evaluation requires consideration of the parent’s ultimate prospects of resisting the adoption order and the impact on the child of granting or refusing leave. The relevant prospect is the prospect of preventing adoption, not necessarily the prospect of securing the child’s restoration to parental care. The more positive the change and the more solid the parent’s grounds, the more cogent and compelling the welfare reasons must be for refusing leave.
4. The court rejected the use of exceptionally rare circumstances and stringent as descriptions of the section 47(5) test. Those expressions risk making the statutory remedy illusory. The fact that the child has been subject to care and placement orders and is living with prospective adopters cannot, alone or in combination, justify refusal of leave. Placement and elapsed time are relevant, but neither is determinative. The court must avoid giving undue weight to short-term disruption when assessing welfare throughout the child’s life.
5. In adoption cases, proper evidence from the local authority and guardian must address every realistically available option and analyse the benefits, detriments, risks, and advantages of each. The judge must give an adequately reasoned, global and holistic evaluation, comparing the options side by side rather than rejecting them sequentially until adoption is the only remaining option. A balance-sheet approach is encouraged.
6. The approach on appeal identified in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 applies to section 47(5) decisions. Because the judicial task is evaluative and engages Convention rights, the appellate court may intervene where the judge was wrong; the more restrictive plainly wrong test applicable to ordinary exercises of discretion is not the appropriate test.
7. Applying those principles, Parker J accepted the mother’s significant change, considered the welfare checklist, and identified the children’s past experiences, continuing vulnerabilities, attachments, and the risk that the mother might not cope. She was entitled to conclude that the mother’s prospects of resisting adoption were entirely improbable and that refusal of leave was in the children’s best interests.

• Court of Appeal (Civil Division): dismissed the mother’s appeal against the refusal of leave to oppose adoption.
• Chelmsford County Court: Parker J refused the mother’s application under section 47(5) of the Adoption and Children Act 2002 and made adoption orders on 7 May 2013.