Borough of Poole v W & Anor

In a contested adoption application, the court must apply the statutory language carefully to the particular facts. Under section 52(1)(b) of the Adoption and Children Act 2002, the question is whether the child’s welfare requires adoption, not whether adoption satisfies an enhanced welfare test. The prospective adopters retain the legal burden of proving that adoption promotes the child’s welfare and that parental consent should be dispensed with. Where opposition is raised at a late stage, the natural parents must first establish a sufficient change of circumstances and solid grounds for permission, but their evidential burden does not displace the adopters’ final legal burden. The court must assess welfare throughout the child’s life, including the risks arising from failed rehabilitation, the child’s need for security and stability, and the parents’ ability to provide sustained care.

The prospective adopters applied to adopt SR, a child who had been removed shortly after birth and placed with them after care and placement orders had been made. The parents initially lacked permission to oppose the adoption, but the Court of Appeal allowed an appeal concerning that refusal and directed a rehearing. Permission was subsequently granted in respect of SR, and the matter came before the High Court for the opposed adoption hearing.

The central issue was whether rehabilitation with the natural parents should be attempted or whether SR’s welfare required adoption and the dispensing of parental consent.

1. Legal burden and statutory test. The court held that the prospective adopters retained the legal burden of establishing that adoption would promote SR’s welfare and that her welfare required parental consent to be dispensed with under section 52(1)(b) of the Adoption and Children Act 2002. Following Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, the statutory language had to be applied carefully to the particular facts. The word “requires” was imperative, but it did not create an enhanced welfare test for adoption.
2. Late opposition. Applying the framework in Re W (Adoption Order: Set Aside and Leave to Oppose) [2011] 1 FLR 2153, the parents had to overcome the successive hurdles of change of circumstances, permission, and opposition at the substantive hearing. They bore a significant evidential burden of presenting solid grounds, but the final legal burden remained with the prospective adopters.
3. Welfare evaluation. The court considered whether SR would survive rehabilitation, whether the parents would sustain the rehabilitation process, and whether they could provide care throughout her childhood. The assessment had to take a lifelong perspective and give particular weight to SR’s age, existing secure attachments, need for stability and security, and the serious emotional consequences if rehabilitation failed. Although the parents had made substantial progress and were committed to further work, their emotional fragility and the risks inherent in creating a third set of attachments meant that rehabilitation carried a real risk of grave harm.
4. Adoption offered SR a settled family life with carers to whom she was securely attached. Weighing the competing outcomes under section 1 of the Act, the court concluded that only adoption sufficiently safeguarded her welfare. An adoption order was therefore made and the parents’ consent was dispensed with, with letterbox contact as the available continuing connection.

• Court of Appeal: An earlier appeal against the care and placement orders was dismissed on 12 December 2012. A later appeal against refusal of permission to oppose the adoption was allowed, and the issue was remitted for rehearing.
• High Court (Family Division): Permission to oppose was granted in respect of SR, but following the opposed hearing the court made an adoption order and dispensed with parental consent.