CB (A Child)

An application for permission to oppose an adoption order under section 47(5) of the Adoption and Children Act 2002 is a measure preparatory to adoption. It therefore falls outside Council Regulation (EC) No 2201/2003, including its transfer mechanism.

Permission to oppose requires a sufficient change of circumstances and a welfare-based assessment of the applicant’s prospects. A court need not commission a fresh assessment without prima facie evidence of relevant change.

Non-consensual adoption remains lawful but is a last resort, permissible only where nothing else will do. In cases involving foreign nationals, authorities must involve the relevant consular authorities promptly and rigorously consider the child’s national, cultural, linguistic, ethnic, religious and family identity.

A Latvian mother appealed against Moylan J’s dismissal of three applications concerning her daughter: transfer of the proceedings to Latvia under article 15 of Council Regulation (EC) No 2201/2003; permission under section 47(5) of the Adoption and Children Act 2002 to oppose an adoption order; and renewed contact.

The child had entered care after suffering serious physical and emotional neglect. Care and placement orders were made in 2012 and upheld on appeal. She was placed with prospective adopters in 2013. The Latvian authorities became involved later and supported reassessment and transfer to Latvia, although they identified no particular alternative carer.

Moylan J dismissed all three applications in Re B, London Borough of Merton v LB [2014] EWHC 4532 (Fam). The issues were whether the adoption proceedings could be transferred, whether Latvia’s involvement or other matters constituted a sufficient change of circumstances, whether further assessments were required, and whether domestic non-consensual adoption law had been applied compatibly with international obligations.

1. Appeal dismissed unanimously. Moylan J had reached the correct decision on each issue and essentially for the reasons he gave.

2. An application under section 47(5) of the Adoption and Children Act 2002 is a measure preparatory to adoption within article 1(3)(b) of Council Regulation (EC) No 2201/2003. It is a preliminary stage within adoption proceedings, not an independent process directed away from adoption. Article 15 could not transfer jurisdiction over a matter expressly excluded from the Regulation. The contrary observations in Re M [2014] EWCA Civ 152 were obiter, had not followed argument on article 1(3)(b), and were not entirely accurate.

3. The mother had shown no sufficient change of circumstances for section 47(5). Neither the later support of the Latvian authorities nor the availability of assessment in Latvia altered her parenting capacity, identified an alternative carer, or addressed the circumstances that justified the care and placement orders. She therefore failed at the first stage. She would also have failed at the welfare stage because her proposed opposition lacked solid prospects and any alternative to the settled adoptive placement would expose this particularly vulnerable child to significant emotional harm.

4. No fresh assessment was required. The mother challenged the correctness of the earlier assessments rather than providing prima facie evidence of changed abilities. The court had current evidence about the child from the adoption report and guardian. There was consequently no breach of articles 6 or 8. Suspending contact was proportionate to protecting the child’s settlement and emotional welfare.

5. Any failure to involve Latvia earlier had no effect on the outcome because there was no evidence that earlier involvement would have produced a different stance or course of proceedings. Nevertheless, authorities must act proactively and promptly in notifying relevant consular authorities of public law proceedings involving foreign nationals. Courts should also consider article 15 transfer at the outset where the Regulation applies.

6. English law permits non-consensual adoption and is not, by that fact, incompatible with the Convention. Courts must nonetheless treat adoption as the last resort, permissible only where nothing else will do. The process must rigorously examine the statutory welfare checklist, including the lifelong consequences of severing family membership and losing national, cultural, linguistic, ethnic and religious connections.

1. Court of Appeal (Civil Division): In CB (A Child) [2015] EWCA Civ 888, the court unanimously dismissed the mother’s appeal.
2. High Court, Family Division: In Re B, London Borough of Merton v LB [2014] EWHC 4532 (Fam), Moylan J dismissed the applications for an article 15 transfer, permission to oppose adoption and contact.
3. Earlier proceedings: Care and placement orders made in 2012 were upheld on first appeal and again by the Court of Appeal in LB v London Borough of Merton and CB (A Child) [2013] EWCA Civ 476. Those earlier decisions formed part of the same litigation.