London Borough of Merton v LB

Article 15 of Brussels IIa does not apply to proceedings concerning adoption or measures preparatory to adoption. Under section 47(5) of the Adoption and Children Act 2002, the court must first decide whether there has been a sufficient change of circumstances. If so, it must assess the parent’s prospects of opposing adoption and the child’s welfare throughout life. A parent’s continuing challenge to earlier decisions is not a change of circumstances. Adoption may be required where every alternative would create instability and significant emotional harm for the child.

The local authority sought to proceed with the adoption of a six-year-old child who had been subject to care and placement orders and had lived with prospective adopters since May 2013. The mother applied for transfer of jurisdiction to Latvia under Article 15 of Brussels IIa, permission to oppose the adoption under section 47(5) of the Adoption and Children Act 2002, and contact.

The earlier care and placement orders had been upheld on appeal, and the mother’s subsequent challenges had failed. The issues were whether Brussels IIa applied, whether the mother had demonstrated a sufficient change of circumstances and realistic prospects of opposing adoption, and whether contact was compatible with the child’s welfare.

1. Transfer. The application under Article 15 failed because Brussels IIa excludes decisions on adoption and measures preparatory to adoption. It was unnecessary and impractical to transfer only the contact application. England was also clearly the more appropriate forum because the English courts and authorities had been involved with the child since 2010.
2. Permission to oppose adoption. Section 47(5) involves two stages. First, the court asks whether there has been a change of circumstances sufficient to open the discretion. Secondly, if there has, it assesses the parent’s prospects of resisting adoption and the impact on the child, with the child’s welfare throughout life paramount. The mother’s support network, more settled circumstances and continuing challenge to the earlier judgments did not address the circumstances which had led to the care and placement orders. There had therefore been no sufficient change.
3. Even if the first stage had been satisfied, the mother’s prospects lacked solidity. The evidence showed that the child was particularly vulnerable and required long-term security and stability. Moving her from the prospective adopters, or reintroducing contact, risked significant emotional harm. Adoption was the only outcome capable of providing the required stability.
4. Disposition. The applications for transfer, permission to oppose the adoption and contact were dismissed.

The judgment records that the earlier care and placement orders were upheld on appeal. The mother’s appeal to the Court of Appeal was dismissed on 1 May 2013; the judgment is cited as [2014] 1 FLR 1066. This court determined the later applications and dismissed them.