B-S (Children), Re

Permission to oppose adoption requires a change of circumstances under Adoption and Children Act 2002, section 47(7), together with a welfare-based exercise of discretion under section 1. The stages must remain distinct: the final question whether adoption should be made arises only at the full opposed hearing. In light of Re B (A Child), the description of such applications as exceptionally rare might require reconsideration, and an appellate court must examine compliance with engaged Article 8 rights. The appeal was allowed so these issues could be fully argued.

The mother sought permission to appeal against Parker J’s refusal of permission to oppose the adoption of her two children under section 47(5) of the Adoption and Children Act 2002. The children were subject to care and placement for adoption orders and had been placed with prospective adopters. Although the mother’s circumstances had substantially improved, the judge considered it improbable that she would ultimately regain care of the children.

The Court of Appeal considered whether the judge had conflated the stages identified in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535; [2011] 1 FLR 2153, and whether the recent Supreme Court decision in Re B (A Child) [2013] UKSC 33 required reconsideration of the applicable threshold and appellate approach.

1. Disposition. Lord Justice McFarlane granted permission to appeal on the mother’s grounds except ground 2. The formal order recorded the result as appeal allowed. The full appeal was directed to be heard urgently before a court of three Lord or Lady Justices, with skeleton arguments to be filed.
2. Statutory framework. Section 47(5) of the Adoption and Children Act 2002 provides the gateway for a parent wishing to oppose an adoption application. Section 47(7) requires a change of circumstances. In addition, the discretion must be exercised by applying section 1, giving the children’s welfare throughout their lives paramount consideration. If permission is granted, the application moves from the statutory second condition to a full hearing under the first condition, including the question whether parental consent should be dispensed with in the circumstances then existing.
3. Separate stages. Re W described three progressively higher fences: establishing a change of circumstances; satisfying the court that permission should be granted; and, only after permission, persuading the court at the full opposed adoption hearing to refuse the adoption. The third stage was not part of the decision whether to grant permission. The judge’s apparent conflation of the second and third stages was therefore arguably erroneous.
4. Effect of Re B. The Supreme Court’s restatement of the high evidential standard for adoption without parental consent raised a serious question whether Re W’s description of such applications as exceptionally rare remained tenable. Re B also made it plain that an appellate court must review compliance with engaged Article 8 obligations. It was arguable that the appellate question was whether the first-instance judge was wrong, rather than plainly wrong. Those matters required full argument and did not determine the ultimate adoption question.

• Court of Appeal (Civil Division): On 14 June 2013, Lord Justice McFarlane granted permission to appeal except on ground 2 and directed an urgent full appeal before three Lord or Lady Justices. The formal order stated: appeal allowed.
• County court: On 7 May 2013, Parker J refused the mother permission to oppose the adoption, despite finding that her circumstances had changed, because success in recovering care of the children appeared improbable.