W (A Child) (No 3), Re

Where first-instance adoption proceedings have concluded, the adoption order should ordinarily be sealed and dated on the date of judgment, even if an appeal is contemplated or a stay is granted. The possibility of an appeal does not require the order to remain formally unmade. The strict approach to later challenges reflects the finality of adoption, but does not prevent an ordinary appeal against the order. Authorities concerning the separate statutory procedure for opposing an adoption under section 47(5) of the Adoption and Children Act 2002 should not be extended by analogy to cases where that procedure was unavailable. A stay can prevent steps being taken under the order pending appeal without postponing its effective date.

The court had previously dispensed with the parents’ consent to adoption and made an adoption order in favour of the proposed adopters. The father sought permission to appeal and a stay was granted, while his renewed application to the Court of Appeal remained pending. A question then arose whether the formal adoption order should be dated 12 April 2017, when judgment was given, or treated as made only after the appeal proceedings concluded.

The issue was whether the finality of adoption orders, and authorities concerning applications under section 47(5) of the Adoption and Children Act 2002, required the order to be delayed.

1. The adoption order should be sealed and dated 12 April 2017, the date of the judgment. The first-instance proceedings had concluded, and neither the order nor Part 14 of the FPR suggested that the formal order should ordinarily be delayed merely because an appeal was possible.

2. The authorities emphasising the peculiar finality of adoption orders, including Webster v Norfolk County Council and the Children (By Their Children’s Guardian) [2009] EWCA Civ 59, In re B (Adoption: Jurisdiction to Set Aside) [1995] Fam 239, In re C (A Child) (Adoption: Placement order) [2013] EWCA Civ 431 and In re O (A Child) (Human Fertilisation and Embryology: Adoption Revocation) [2016] EWHC 2273 (Fam), concerned subsequent challenges to adoption orders which had not been appealed in time. They did not prevent a party from appealing in the usual way.

3. The approach in In re W (A Child) (Adoption Order: Leave to Oppose) [2013] ECA Civ 1177 and Re W (Children) [2015] EWCA Civ 403 could not be applied by analogy. Those decisions addressed the specific problem arising where an appeal might follow refusal of an application under section 47(5) of the Adoption and Children Act 2002. No such application existed, or could have existed, here.

4. The date mattered because an adoption order fundamentally changed the child’s status. If the father succeeded on appeal, the order could be set aside. If he failed, the adoption should take effect from the date of judgment. The stay prevented anything being done in pursuance of the order pending the Court of Appeal’s determination and therefore caused no prejudice.

• High Court (Family Division): In Re W (A Child) [2017] EWHC 829 (Fam), the court dispensed with parental consent and made an adoption order in favour of the proposed adopters.
• High Court (Family Division): In Re W (A Child) (No 2) [2017] EWHC 917 (Fam), permission applications were refused but a stay was granted pending the father’s proposed appeal.
• High Court (Family Division): The present judgment determined that the adoption order was to be sealed and dated 12 April 2017.