C (A Child)

Permission to oppose an adoption under section 47(5) of the Adoption and Children Act 2002 involves two stages. The applicant must establish a change of circumstances and then satisfy the court that permission should be granted. At the second stage, the child’s welfare throughout life is paramount.

A stringent approach is required. The proposed opposition must have substantial and solid prospects, assessed against the effect of reopening the placement upon the child and adoptive family. Proper application of the statutory welfare criteria will normally satisfy Article 8 proportionality requirements. An appellate court may interfere with the resulting evaluative discretion only where the judge erred in principle or was plainly wrong.

The appellant discovered through DNA testing that he was the father of a child who had already been placed with prospective adopters. He promptly applied under section 47(5) of the Adoption and Children Act 2002 for permission to oppose the adoption and to be joined as a party.

Her Honour Judge Redgrave accepted that the discovery of paternity was a change of circumstances. She nevertheless refused permission because the child had no relationship with the appellant, was settled with the prospective adopters and risked emotional harm from further disruption. An adoption order was subsequently made while the appellant’s appeal was pending.

The central issue was whether Judge Redgrave had applied an excessively stringent approach or otherwise erred in exercising her welfare-based discretion. A proposed appeal against the later adoption order was also raised, although no appellant’s notice had been filed in respect of it.

1. Appeal dismissed. The father had satisfied the first stage under section 47(7) of the Adoption and Children Act 2002 because the discovery of his paternity was a change of circumstances. At the second stage, however, section 1 made the child’s welfare throughout life paramount. A stringent approach was required, and the proposed opposition needed prospects possessing substance and solidity.

2. Judge Redgrave had addressed the relevant statutory factors and had been entitled to give decisive weight to the child’s circumstances. The father had never met the child and had no relationship with him. The child had lived with the prospective adopters for more than two years, was settled and attached to them, and faced a serious risk of emotional harm if that stability were disturbed. The judge’s reasoning disclosed no error of law or approach, and her evaluative decision was not plainly wrong.

3. An appellate court must not substitute its own discretion for that of the trial judge. Reasons should be read on the assumption that the judge knew the applicable functions and relevant considerations unless the judgment demonstrates otherwise. The omission of an express reference to a particular consideration does not itself establish error.

4. The judge’s application of section 1 also met the requirements of Article 8. The statutory considerations broadly reflect the elements involved in assessing whether adoption is necessary and proportionate. Article 8 did not entitle the father to a full merits investigation or further assessment where the welfare-based refusal of permission was properly reached.

5. The proposed appeal against the later adoption order was academic. The father nevertheless had standing to appeal despite not having been a party when that order was made. Setting aside a lawfully made adoption order requires highly exceptional and particular circumstances, although a fundamental breach of natural justice may justify that course. Whether this threshold could have been met remained open.

6. The court gave mandatory procedural guidance for appeals concerning placement orders or consequential orders. An appellant’s notice must be filed promptly; interim relief must be considered; any available note of judgment must accompany the notice if the transcript is unavailable; the transcript must be ordered and processed immediately; and respondents must notify the appellant and the Court of Appeal of consequential applications and hearings.

1. Court of Appeal (Civil Division): The appeal from Judge Redgrave’s refusal of permission to oppose the adoption was dismissed by [2013] EWCA Civ 431. The proposed appeal against the subsequent adoption order was academic.
2. High Court, Family Division: Her Honour Judge Redgrave refused the father permission under section 47(5) of the Adoption and Children Act 2002 to oppose the adoption and to be joined as a party. The decision was unreported.