W (Children), Re

In adoption proceedings, ‘a change in circumstances’ under Adoption and Children Act 2002 must not be raised to a significant-change or sea-change threshold. It must relate to the application for leave and be sufficient in nature and degree to open the court’s discretion. A newly available relative willing to care for the child may qualify, and the court must address that possibility.

Notice of a final adoption hearing must identify every application listed. A formal adoption order cannot be conditional on a condition precedent. An order affecting status must clearly state what is ordered and when, and formal adoption should be postponed until the parent’s time to seek permission to appeal has expired.

Public law proceedings concerned B and M, two children subject to care and placement orders who had been placed with prospective adopters. On receiving notice of the adoption hearings, both parents sought leave under Adoption and Children Act 2002 to oppose the orders. The father also sought contact and relied on his paternal aunt in Belgium as a possible carer.

Her Honour Judge Watson refused leave, dismissed the contact application, made an adoption order for B to be made after seven days, and purported to approve an adoption order for M conditional on circumcision. The appeal concerned the correct statutory test, the use of earlier findings, notice and hearing procedure, and the legal validity and clarity of the proposed adoption orders.

Sir James Munby P gave the judgment of the court. Lady Justice Black and Lord Justice Briggs agreed. The appeal was allowed, Judge Watson’s orders were set aside, and the parents’ applications for leave to oppose, the father’s contact application and the prospective adopters’ applications were remitted in their entirety to Judge Cleary.

1. Under section 47(7) of the Adoption and Children Act 2002, the change in circumstances must relate to the grant of leave and must be sufficient in nature and degree to open the discretion to permit opposition. The statute does not require a significant change. The phrase should not be glossed by adding that word. It can encompass a wide range of factual situations and is not confined to changes in the parents’ circumstances. The court applied the approach in In re P (A Child) (Adoption Proceedings) [2007] EWCA Civ 616.
2. The father’s aunt had appeared as a willing prospective carer after the placement orders. Her arrival on the scene was capable of being a change in circumstances. Judge Watson was required to consider it. Her failure to do so was a fatal omission.
3. Judge Watson was entitled to take earlier findings and Judge Cleary’s ruling that the parents were not realistic carers as the factual baseline, even though the proceedings involved different children and judges. Earlier findings may be revisited only for good reason, such as new evidence or solid grounds casting doubt on their accuracy. Mere speculation or hope is insufficient.
4. Notice under rule 14.15 of the Family Procedure Rules 2010 had to identify clearly and precisely every application listed for hearing. Descriptions such as birth parent adoption hearing were inadequate for a litigant in person. The application under section 47(5) should also have been addressed before contact and other issues.
5. No adoption order could be made subject to a condition precedent. The proposed order for M was therefore substantively flawed. The order concerning B was also unclear as to whether an adoption order had been made and, if so, when. Orders affecting status must be pellucid on both points. The formal order and celebratory event should ordinarily be postponed until the parent’s time to seek permission to appeal has expired.

• Court of Appeal (Civil Division) — [2015] EWCA Civ 403: appeal allowed; the orders of 29 September 2014 were set aside and the matters were remitted to Judge Cleary.
• Court of Appeal (Civil Division) — At the permission stage, Ryder LJ granted permission on 21 January 2015 in In the matter of W (Children) [2015] EWCA Civ 68.
• Family Court at Coventry — Her Honour Judge Watson, 29 September 2014: leave to oppose was refused, contact was dismissed, and adoption orders were made or purportedly approved for B and M.
• Family Court — Earlier care and placement orders had been made in relation to the children following findings against both parents.