B-S (Children), Re

An application for leave to oppose adoption involves two stages: establishing a relevant change in circumstances and evaluating whether leave should be given. At the second stage, the child’s welfare throughout life is paramount. The court must consider the parent’s prospects of resisting adoption and the consequences for the child of granting or refusing leave. Those prospects concern preventing adoption, rather than securing the child’s return to parental care.

Leave is not confined to exceptionally rare circumstances. Existing care and placement orders, placement with prospective adopters and the passage of time cannot themselves determine the application. Stronger parental grounds require more compelling welfare reasons for refusal. The evaluation must reflect the principle that non-consensual adoption is a last resort. An appellate court reviews whether the decision was wrong, rather than plainly wrong.

The mother’s two children were removed from her care and made subject to care and placement orders in October 2011. Her consent was dispensed with. Contact ceased, and the children were placed with prospective adopters in April 2012. When the adopters applied for adoption orders, the mother sought leave to oppose under section 47(5) of the Adoption and Children Act 2002, relying on substantial improvements in her circumstances.

Parker J, sitting in Chelmsford County Court, accepted that circumstances had changed but refused leave and made adoption orders. The mother appealed with permission granted by McFarlane LJ. The central issues were the proper test for leave, whether the approach in Re W (Adoption: Set Aside and Leave to Oppose) required reconsideration following In re B (A Child) (Care Proceedings: Threshold Criteria), and whether Parker J’s refusal was wrong.

1. The appeal was dismissed. Parker J’s refusal of leave was correct. Although she had wrongly conflated the leave stage with the substantive adoption hearing, that error did not undermine her essential reasoning or conclusion.

2. Section 47(5) of the Adoption and Children Act 2002 involved two stages. The parent must first establish a relevant change in circumstances. The change need not be described as significant, but must be sufficient in nature and degree to open the second stage. The approach in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616 remained correct, subject to describing the second stage as judicial evaluation rather than mere discretion.

3. At the second stage, the court must consider all the circumstances, particularly the parent’s ultimate prospects of resisting adoption and the impact on the child of granting or refusing leave. The child’s welfare throughout life was paramount. Prospects of success must have substance, but concerned preventing adoption rather than obtaining the child’s return. Once changed circumstances and solid grounds were established, refusal required careful examination. Greater positive change and stronger grounds called for more cogent welfare reasons for refusal.

4. The descriptions of leave as available only in exceptionally rare circumstances, or as requiring a stringent approach, were misleading and should cease. Those aspects of Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535 were disapproved. Care and placement orders and an existing adoptive placement could not themselves justify refusal. Age and placement duration remained relevant, but short-term disruption and the burdens of contested proceedings required proportionate weight.

5. Granting leave displaced the statutory second condition for adoption. The application would proceed under the first condition, with parental consent and any need to dispense with it considered afresh in current circumstances.

6. The court also gave wider guidance. Non-consensual adoption required necessity, not merely a preferable upbringing. Evidence must analyse every realistic option, including its advantages, disadvantages and risks. Judgments must provide a global, holistic comparison and substantive proportionality analysis. Authorities must support a less interventionist order where proportionate. Missing essential evidence required an adjournment, even beyond the anticipated 26-week timetable.

7. The appellate approach established in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33 applied to refusals of leave to oppose adoption and to seek revocation of placement orders. Review concerned whether the evaluation was wrong, without requiring a fresh proportionality determination. The court left the wider boundaries of that approach open.

8. Parker J had recognised the mother’s improvement and balanced the children’s interests. Their earlier experiences remained relevant through continuing anxiety and the risk of behavioural regression. Their need for particular stability, understanding of the placement’s permanence and the risk that the mother could not cope justified refusal. The procedural fairness complaint also failed: the mother had time to consider new material, and no adjournment or cross-examination was requested.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1146 , the court dismissed the mother’s appeal against refusal of leave to oppose adoption.
2. Court of Appeal (Civil Division): McFarlane LJ granted permission to appeal on 14 June 2013 in Re B-S (Children) [2013] EWCA Civ 813 , on all but one of the grounds advanced.
3. Chelmsford County Court: On 7 May 2013, Parker J refused the mother leave under section 47(5) of the Adoption and Children Act 2002, made adoption orders and refused permission to appeal.
4. Earlier proceedings: Care and placement orders were made in October 2011, with the mother’s consent dispensed with.