B (Child), Re

An application for leave to oppose adoption proceeds in two stages: first, whether there has been a change of circumstances of the relevant kind; secondly, whether leave should be granted having regard to all circumstances and the child’s welfare throughout life. A change must address the underlying reasons for the original care and placement orders. At the welfare stage, the parent’s prospects and the effect on the child of granting or refusing leave must be assessed. Adoption remains a last resort, but the fact and duration of an implemented adoption plan may carry substantial weight, particularly as the child’s age increases and disruption becomes more harmful. A defect in the first-stage assessment does not require the appeal to succeed where a sound, independent second-stage welfare assessment requires refusal of leave.

The mother appealed from Bodey J’s refusal on 19 May 2016 of leave to oppose the adoption of B, aged four. B had been subject to care and placement orders after findings concerning the mother’s untreated borderline personality disorder and the risk of emotional harm. The mother relied on her move to Ireland, the birth and care of a younger child, family support and Irish social-services involvement as changes in circumstances. The appeal challenged the treatment of disputed TUSLA material, the first-stage assessment and the second-stage welfare evaluation. The central question was whether the procedural and evaluative errors identified justified interfering with the refusal of leave.

1. The court extended time and granted permission to appeal. The merits of the proposed appeal were relevant to the extension application, applying Re H (Children) (Application to extend time: Merits of proposed appeal) [2015] EWCA Civ 583.
2. The statutory process has two stages. The first asks whether there has been a change of circumstances of the relevant kind. The second requires consideration of all the circumstances, with the child’s welfare throughout life paramount under section 1 of the Adoption and Children Act 2002.
3. The claimed changes, including the move to Ireland, a new home, parental support and the mother’s care of C, did not clearly address the underlying reasons for the original care and placement orders. However, the TUSLA material was potentially central and disputed. Bodey J should have adjourned to allow the challenges to be identified and explored. Applications of this kind can generally be decided on written evidence and submissions, although oral evidence may sometimes assist. This procedural criticism did not determine the appeal.
4. At the second stage, the court must consider the parent’s prospects of success and the impact on the child if leave is granted or refused. Adoption is a last resort, and placement with prospective adopters or the passage of time is not by itself determinative. Nevertheless, the older the child and the longer the placement, the greater the likely adverse effect of disruption. Bodey J was entitled to give substantial weight to B’s long-established adoption plan, her settled and thriving placement, her need for permanence, the mother’s negligible prospects and the continuing involvement of Irish social services.
5. The second-stage welfare assessment independently justified refusal of leave. Any defect in the first-stage assessment therefore did not require interference with the order. The appeal was dismissed.

1. Court of Appeal (Civil Division) — time extended and permission to appeal granted; appeal dismissed: [2017] EWCA Civ 264.
2. High Court — Mr Justice Bodey refused the mother leave to oppose B’s adoption on 19 May 2016.