D, Re (Leave To Oppose Making of Adoption Order) (Rev 1)

On an application under Adoption and Children Act 2002, section 47(5), the court must first consider whether circumstances have changed sufficiently and then assess the parent’s ultimate prospects of opposing adoption. Those prospects must be more than fanciful and must possess sufficient solidity. The child’s welfare throughout life remains paramount. The court must consider past, present and future circumstances, including the child’s settled placement, delay and the prospective adopters’ position. Those matters are relevant but must not receive undue weight. The benefits of being brought up by the natural parent remain vitally important. The lower court’s reasoning is assessed by reading its judgment as a whole.

The appellant mother sought leave under section 47(5) of the Adoption and Children Act 2002 to oppose the adoption of her daughter. Care and placement orders had previously been made, and the child had been placed with prospective adopters. The mother relied on substantial improvements in her circumstances. His Honour Judge Caddick accepted that there had been a sufficient change of circumstances but refused leave, finding that her prospects of successfully opposing adoption lacked the necessary solidity and that further delay would not serve the child’s welfare. The mother appealed, arguing that the judge had overstated the significance of delay, the placement and the adopters’ position, and had failed adequately to address the child’s lifelong welfare and the benefits of upbringing by her mother. The Court of Appeal considered whether the judge’s reasoning disclosed an error of law.

Black LJ, with Gloster LJ and Moses LJ agreeing, granted permission to appeal but dismissed the substantive appeal.

1. Two-stage approach. An application under section 47(5) of the Adoption and Children Act 2002 requires, first, consideration of whether circumstances have changed sufficiently and, second, consideration of whether leave to oppose should be granted. The first-stage finding was not challenged.
2. Prospects of success and welfare. At the second stage the court must assess the parent’s ultimate prospects of success if leave is granted. The prospects must be more than fanciful and must possess solidity. The assessment is informed by past events, the current position and what may happen in future. The child’s welfare throughout life remains paramount: Re B-S [2013] EWCA Civ 1146 and Re W and H [2013] EWCA Civ 1177. A parent’s improvement may therefore be insufficient if the overall circumstances do not support a realistic prospect that placement with the parent would serve the child’s welfare.
3. The judge was entitled to consider the mother’s recent conduct alongside her earlier immaturity and to rely on his assessment of her oral evidence. Although the reasoning could have been fuller, the judgment showed that the mother’s prospects lacked the necessary solidity independently of the concerns about delay and disruption.
4. It was proper to consider the child’s circumstances and those of the prospective adopters. Placement for adoption and the passage of time are not determinative. Short-term consequences and the adverse impact of delay or disruption may be relevant, but must not be given undue weight. The benefits of upbringing by the child’s own mother were a vitally important factor and had been recognised: Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616.
5. The adequacy of the first-instance reasoning had to be assessed by reading the judgment as a whole. The absence of an express reference to section 1 of the Act did not establish an error where the reasoning demonstrated that the relevant welfare considerations had been addressed. The later making of an adoption order did not undermine the appeal; if the appeal had succeeded, that order would have required setting aside, and the practice in Re W and H [2013] EWCA Civ 1177 should be followed to avoid that situation.

• Court of Appeal (Civil Division): granted permission to appeal and dismissed the appeal. [2013] EWCA Civ 1480
• Maidstone County Court: His Honour Judge Caddick refused the mother leave under section 47(5) to oppose the making of an adoption order.