D (Children), Re

On an application for leave under Adoption and Children Act 2002, section 47(5), the court must ask whether circumstances have changed and, if so, whether leave to oppose adoption should be granted. The judge evaluates the solidity of the proposed opposition and the child’s welfare; these inquiries may be significantly intertwined.

The judge must look forward to the likely outcome of the adoption application and consider welfare throughout the child’s life. A section 47(5) application is an adjunct to adoption proceedings, not a re-run of placement proceedings. Written evidence may suffice. An adoptive placement may itself be a family placement where a sibling or half-sibling lives with the children. It is not inherently inferior to placement with other relatives merely because adoption severs legal ties.

The mother of two children appealed against an order of the Central Family Court dated 20 March 2015 refusing her leave to oppose adoption orders. She proposed that the children should be placed with their paternal aunt and uncle in Jamaica, who had become special guardians for a younger sibling.

The children had been placed for adoption with prospective adopters with whom their half-sibling already lived. The appeal challenged the judge’s assessment of the proposed family placement, the psychological and practical disruption of moving the children, immigration difficulties, and the asserted Articles 6 and 8 rights. The central issue was whether the judge had properly applied the section 47(5) leave test.

Appeal dismissed. Permission to appeal was granted and the substantive appeal was heard.

1. The two-stage test under Adoption and Children Act 2002, section 47(5), requires consideration of whether circumstances have changed and, if so, whether leave to oppose should be granted. The solidity of the proposed opposition and the children’s welfare are relevant throughout. Those questions may be significantly intertwined. The approach in Re B-S (Adoption: Application of section 37(5)) [2013] EWCA Civ 1146 and Re W; Re H [2013] EWCA Civ 1177 was not altered.
2. The judge must look into the future and forecast, as best possible, the likely outcome of the adoption application, considering the child’s welfare throughout life, past events, present circumstances and future possibilities. The factors relevant to the adoption decision are therefore material at the leave stage. Re L (Leave to Oppose Making of Adoption Order) [2013] EWCA Civ 1481 was applied.
3. A section 47(5) application is an adjunct to the adoption process, not a re-run of the original placement proceedings. Proper evidence is required, but such applications are typically dealt with on written evidence and submissions. The judge had sufficient material, including evidence from the social worker and the prospective adopters, to evaluate the proposed placement and its likely impact.
4. The existing adoptive placement was itself a family placement because the children lived with their half-sibling. It could not properly be treated as fundamentally inferior to placement with other relatives merely because adoption would sever legal ties with the biological family. The decision in A and B v Rotherham MBC [2014] EWFC 47 was materially distinguishable.
5. The judge was entitled to weigh the children’s settled attachment, their therapeutic progress, the uncertainties surrounding the proposed placement, and the possible damage from removal. Immigration difficulties and possible temporary foster care were relevant but were not treated as determinative. The judgment had to be read as a whole, despite its ex tempore structure.
6. The Article 8 argument added nothing on these facts. The judge had kept in mind that adoption is permissible only when nothing else will do, while recognising the family life represented by the children’s relationship with their half-sibling. Determination on written evidence and submissions was conventional for this type of application and disclosed no Article 6 breach.

• Court of Appeal (Civil Division): Permission to appeal granted; the appeal was heard and dismissed.
• Central Family Court: On 20 March 2015, HHJ Williams dismissed the mother’s application under section 47(5) for leave to oppose adoption orders.