W (A Child)

An application under section 47(5) of the Adoption and Children Act 2002 requires a two-stage inquiry. The court first asks whether circumstances have changed. If they have, it considers whether leave to oppose should be granted.

The parent must demonstrate prospects of ultimately resisting adoption which are more than fanciful and have real solidity. The child’s lifelong welfare is paramount. Once solid prospects are established, leave should be refused only after careful consideration of whether an opposed application would itself harm the child sufficiently to require refusal. Adoption remains a last resort.

If an appellate court invalidates the refusal of leave, an adoption order made in reliance upon that refusal must be set aside. Courts should therefore postpone the formal adoption order until the period for seeking permission to appeal has expired.

These conjoined matters concerned parents refused leave under section 47(5) of the Adoption and Children Act 2002 to oppose adoption orders. In Re W, the Bournemouth and Poole County Court found a change of circumstances but refused leave and immediately made an adoption order. In Re H, the Bristol County Court accepted some change in the parents’ circumstances, refused leave and made adoption orders for two children.

The parents challenged whether the judges had undertaken the analysis subsequently required by Re B-S (Children) [2013] EWCA Civ 1146. The central questions were whether the judgments adequately addressed the parents’ ultimate prospects of success and the children’s welfare, whether the Court of Appeal could decide the applications itself, and what should happen to adoption orders made after an invalid refusal of leave.

1. Both appeals were allowed. The refusals of leave and the resulting adoption orders were set aside. Each application was remitted to the judge who had originally heard it for reconsideration under section 47(5) of the Adoption and Children Act 2002.

2. The statutory inquiry has two stages. The court first asks whether circumstances have changed. If they have not, the application ends. If they have, the court decides whether leave to oppose should be granted. At that second stage it must first evaluate whether the parent has more than fanciful prospects, possessing real solidity, of ultimately resisting adoption. The child’s welfare throughout life is paramount in that evaluation.

3. Where solid prospects exist, the remaining focus is whether the child’s welfare would be so adversely affected by an opposed rather than an unopposed application that leave should nevertheless be refused. The court must avoid undue reliance on short-term disruption or anxiety to prospective adopters. It must remember that adoption is a last resort, permissible only where nothing else will do.

4. A pre-Re B-S judgment must be read fairly and as a whole, with attention to substance rather than terminology. It must nevertheless reveal that the judge addressed the decisive questions and explain the essential reasons. Judge Barclay’s references to whether arrangements could sensibly or possibly be “unscrambled” did not show the required analysis. Judge Bond’s judgment also left unclear whether the parents lacked solid prospects or had crossed that threshold but failed on welfare grounds.

5. The Court of Appeal could not determine either leave application on the available material. Although the findings of changed circumstances stood, the substantive leave questions required remittal. The parents had therefore secured reconsideration only, not leave or success at any eventual opposed adoption hearing.

6. Once the orders refusing leave were invalidated, the adoption applications could not properly be treated as unopposed. Allowing the adoption orders to stand would create fundamental injustice to both parents and children. In future, the formal order and celebratory event should be postponed until the time for seeking permission to appeal has expired.

7. Family court orders, including case-management directions, must be obeyed strictly and on time. A person unable to comply must seek an extension before the deadline. Default by a public authority is especially serious where it impairs a parent’s ability to know the case advanced concerning the permanent loss of a child.

1. Court of Appeal (Civil Division): In Re W, allowed the appeal. In Re H, granted permission and an extension of time and allowed the appeal. It set aside the adoption orders and remitted both section 47(5) applications.
2. Bournemouth and Poole County Court: Judge Bond found changed circumstances but refused the Re W parents leave to oppose and made an adoption order. An earlier appeal against the care and placement orders had been dismissed in Re W (A Child) [2012] EWCA Civ 1828.
3. Bristol County Court: Judge Barclay accepted some change in circumstances but refused the Re H parents leave to oppose and made adoption orders for the two children.