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

Once a parent has shown a change of circumstances under section 47(5) of the Adoption and Children Act 2002, the court must assess whether the parent has solid, rather than fanciful, prospects of successfully opposing adoption. It must then decide whether the child’s welfare nevertheless requires leave to be refused.

That assessment forecasts the final adoption decision. It requires a global and holistic comparison of all realistic options, including the respective strengths, weaknesses and uncertainties of the parent’s case and the proposed adoptive placement. Significant uncertainty in the adoptive household may mean that a lesser degree of present confidence in the parent justifies leave. Adoption remains a last resort, permissible only where necessary for the child’s welfare.

The mother appealed against His Honour Judge Grenville Perry’s refusal on 22 May 2013 to give her leave under section 47(5) of the Adoption and Children Act 2002 to oppose an adoption order for her son.

A care order and placement order had followed concerns about the mother’s ability, when very young, to care safely for the child. The child was placed with a married couple who later separated. The prospective female adopter withdrew, while the male adopter pursued a sole application. His new relationship, an expected child, and unresolved proceedings concerning the couple’s other adopted child created further uncertainty.

The judge accepted that the mother’s circumstances had changed, but held that her prospects of opposing adoption lacked solidity. The central issue was whether he had properly assessed those prospects and the child’s welfare in the light of the disrupted proposed adoptive placement.

1. Appeal allowed unanimously. The court granted the mother leave under section 47(5) of the Adoption and Children Act 2002 to oppose the adoption order and directed an urgent county court directions hearing.

2. The judge had correctly proceeded to the second stage of the section 47(5) inquiry. Following [2013] EWCA Civ 1146 and [2013] EWCA Civ 1177, that stage requires assessment of whether the parent’s ultimate prospects of success have solidity, followed by careful consideration of the welfare impact of granting or refusing leave.

3. The judge did not apply an incorrect verbal test or focus impermissibly on restoration to the mother’s care. Her case had principally been that she could care for the child. He erred, however, by failing to give proper effect to the disruption and uncertainty in the proposed adoptive household when evaluating the solidity of her prospects.

4. The leave decision forecasts the final adoption decision, for which the child’s lifelong welfare is paramount. It therefore requires a global and holistic evaluation of every realistic option, comparing the strengths and weaknesses of the parent’s position and the proposed adopter’s position side by side. Adoption is a last resort and may be imposed only where necessary: [2013] EWCA Civ 965; [2013] UKSC 33.

5. The proposed placement was not the usual settled and stable placement. Its extensive disruption could materially improve the mother’s prospects. Where the alternative placement also carries significant uncertainty, a lesser degree of confidence in a parent’s present ability may justify leave. The mother’s evidence remained disputed, but it had potentially positive features and her prospects were solid when the options were evaluated comparatively.

6. An assessment of the mother need not begin with returning the child to her care. It could proceed in stages, with reintroduction only if an initial prognosis justified it. The existing uncertainty and delay meant that the child’s welfare did not require refusal of leave. The court expressed no view on the ultimate merits of either adoption or rehabilitation.

Black LJ added that the required confidence in a parent will remain fact-sensitive. A child long settled with adopters may require greater confidence before prospects can be treated as solid. Conversely, serious deficiencies in a parent’s case may still defeat leave despite uncertainty in an adoptive placement.

• Court of Appeal (Civil Division): Allowed the appeal, granted leave under section 47(5) of the Adoption and Children Act 2002, and required an urgent directions hearing in the county court: [2013] EWCA Civ 1481.
• Swansea Civil Justice Centre: His Honour Judge Grenville Perry refused the mother leave to oppose the adoption order on 22 May 2013.