The Prospective Adopters v IA & Anor

Permission to oppose an adoption order requires a two-stage inquiry. The applicant must first show a change in circumstances since the placement order. If that threshold is met, the court must assess whether the applicant’s prospects of success are more than fanciful and have sufficient solidity. Later appellate guidance may constitute a change in circumstances where the earlier court did not apply the subsequently clarified test that adoption must be necessary, in the sense that nothing else will do. Permission does not determine the substantive choice between adoption and special guardianship. The child’s welfare remains paramount, but it is not necessarily a reason to refuse permission where the proposed hearing will not adversely affect the child.

The father applied under section 47(5) of the Adoption and Children Act 2002 for permission to oppose the prospective adopters’ application for an adoption order. He also sought a stay pending proceedings before the European Court of Human Rights.

The child had severe disabilities and had lived with the prospective adopters for several years. Earlier care and placement orders had been upheld on appeal, but later authorities, including Re B and Re B-S (Children), had emphasised the necessity of adoption and rigorous comparison of realistic alternatives. The issues were whether there had been a change in circumstances and whether the father’s prospects of successfully opposing adoption had sufficient solidity.

1. Permission to oppose. The father’s application was granted. Under section 47(5) of the Adoption and Children Act 2002, the court must first determine whether there has been a change in circumstances since the placement order. If so, it must assess whether the parent’s prospects of success are more than fanciful and have sufficient solidity.
2. Change in circumstances. The alleged changes concerning contact, the child’s health, the European Court of Human Rights application and the paternal grandmother’s immigration status did not qualify. The later decisions in Re B and Re B-S (Children) did qualify. The earlier judge had described adoption as the best solution and special guardianship as a possible solution, but had not determined that adoption was necessary or that nothing else would do. The subsequent authorities therefore exposed a material issue that had not been properly determined.
3. Prospects of success. It was impossible to predict the result of a properly conducted comparison between adoption and special guardianship. Adoption was not inevitable. The father’s prospects therefore had the required solidity.
4. Welfare and scope. The child’s welfare was paramount. The local authority accepted that granting permission would not adversely affect her welfare. Permission did not indicate a preference for special guardianship, and there was no question of removing the child from the prospective adopters’ care. The forthcoming hearing was confined to the issues identified in Re B and Re B-S (Children).
5. Stay. The stay application was refused. Once permission to oppose was granted, the father accepted that the European Court of Human Rights proceedings no longer served a purpose. The proceedings were to be abandoned.

The judgment records that earlier care and placement orders were unsuccessfully challenged in the Court of Appeal and that permission to appeal to the Supreme Court was refused. Those decisions formed part of the background to the present application.