G (A Child)

A person who is neither a parent nor guardian may seek leave under section 29(4)(b) of the Adoption and Children Act 2002 to apply for a residence order in adoption proceedings. The provision contains no separate requirement to prove a change in circumstances, although changes in the underlying circumstances remain highly relevant. The leave decision concerns the initiation of proceedings, so the statutory paramountcy rule does not apply. The court must weigh the child’s welfare and the prospects of the proposed residence application. Joinder is discretionary. The court should consider the applicant’s prospective legitimate role and what would follow joinder. A non-relative former carer with no realistic prospect of obtaining a substantive order need not be joined merely to participate in the adoption proceedings.

G had been removed from the appellant, AR, his unrelated former carer, following final care and placement orders and was later placed with prospective adopters. After an adoption application was issued, AR sought leave to oppose it, alternatively leave under section 29(4)(b) of the Adoption and Children Act 2002 to apply for residence and joinder as a party. HHJ Edwards refused the applications, treating AR as unable to proceed under section 47 and considering the alternative route by reference to section 10(9) of the Children Act 1989. The Court of Appeal reconsidered the correct procedural routes, the relevance of welfare and changed circumstances, and whether AR had sufficient interest to be joined.

1. Appeal dismissed. The appellant’s applications for leave to seek a residence order and for joinder as a party both failed.
2. Sections 29(3) and 29(4) of the Adoption and Children Act 2002 provide a route for “any other person” to seek leave to apply for a residence order where an adoption application has been made. In the absence of an express provision in the Family Procedure Rules 2010, an application for leave should be made under Part 18.
3. Section 29(4) contains no discrete preliminary requirement to establish a change in circumstances, unlike sections 24 and 47. Changes in the underlying circumstances remain highly relevant when assessing both the prospects of the proposed application and the child’s welfare. Following the approach in Warwickshire County Council v M, cited as [2008] 1 FLR 1093, welfare is relevant but is not paramount. The court must weigh welfare and prospects of success together.
4. The reasoning in Re P (Adoption: Leave Provisions), cited as [2007] EWCA Civ 616, [2007] 2 FLR 1069, and in Warwickshire County Council v M showed why the statutory paramountcy rule applied differently to leave to oppose adoption and leave to initiate proceedings. The later authorities Re B, cited as [2013] UKSC 33, and Re B-S, cited as [2013] EWCA Civ 1146, supported a proportionate assessment of positive and negative matters.
5. AR had achieved genuine positive changes, including counselling and separation from her husband. However, the earlier findings concerning her longstanding instability, mental health, relationships and parenting capacity were deeply established. There was no realistic prospect that a residence application would succeed or that G’s welfare would be advanced by returning him to AR.
6. Rule 14.3(3) of the Family Procedure Rules 2010 gives the court a discretionary power to join a person. Re R (Adoption: Father’s Involvement), cited as [2001] 1 FLR 302, was explained and distinguished. Re B (Paternal Grandmother: Joinder as Party), cited as [2012] EWCA Civ 737, [2012] 2 FLR 1358, required the court to consider what would follow joinder. AR was a non-relative with no realistic substantive application, and therefore lacked sufficient interest to be joined.

• Court of Appeal (Civil Division): dismissed AR’s appeal and upheld the refusal of leave to apply for a residence order and joinder as a party.
• Swansea Civil Justice Centre: HHJ Edwards refused AR’s applications in the adoption proceedings on 29 November 2013.