A (Children)

On an application for leave to oppose an adoption order under the Adoption and Children Act 2002, the court must first decide whether circumstances have changed since the placement order. Only if they have does it proceed to the leave stage. The change need not be significant, but must be of a nature and degree sufficient to open the door to the exercise of discretion. At the second stage, the child’s welfare throughout life is paramount. The court considers the parent’s solid grounds and ultimate prospects of successfully opposing adoption, not prospects of restoring the child to parental care. A late offer by a family member who knew of the proceedings and could have been proposed earlier may fail at the first stage. An appeal may be dismissed despite misdirection where the proper approach would inevitably produce the same result.

The father appealed from HHJ Wilding’s order of 13 November 2018 dismissing his application for leave to oppose adoption orders concerning his two younger children. The application arose after the maternal grandfather unexpectedly offered to care for the children during an adjourned adoption hearing.

The judge held that this was not a sufficient change in circumstances since the placement orders. He also misstated the second-stage welfare test and referred to the father’s prospects of securing revocation. The appeal concerned the sufficiency of the alleged change, the effect of the misdirections, and whether the application should nevertheless have been dismissed.

1. Appeal dismissed. Lord Justice Moylan gave the leading judgment, with Lady Justice King and Lord Justice Underhill agreeing.
2. Under sections 47(5) and 47(7) of the Adoption and Children Act 2002, the court applies a two-stage approach. It first asks whether there has been a change in circumstances since the placement order. Only if that threshold is met does it decide whether to grant leave, with the child’s welfare throughout life as the paramount consideration.
3. The approach in In re P (A Child) (Adoption Proceedings) [2007] 1 WLR 2556 was followed. The change need not be significant, and the test must not be set too high. It must nevertheless be a change of a nature and degree sufficient, on the facts, to open the door to the exercise of judicial discretion.
4. The maternal grandfather’s late proposal was insufficient. He knew of the care proceedings, and either parent or the grandfather could have proposed him, probably with the maternal grandmother, as a potential carer during those proceedings. The circumstances therefore differed materially from A and B v Rotherham Metropolitan Borough Council [2015] 2 FLR 381 and Re LG (Adoption: Leave to Oppose) [2016] 1 FLR 607. The judge was not required to obtain a further explanation from the grandfather because it would not have materially affected the decision.
5. The judge had misdirected himself by stating that welfare was not paramount and by referring to prospects of securing revocation. Nevertheless, applying the approach in In re B-S (Children) (Adoption Order: Leave to Oppose) [2014] 1 WLR 563, the father had no solid grounds for opposing adoption. The earlier welfare findings could be taken into account, and the grandfather’s proposal did not materially alter them. A proper direction would inevitably have led to dismissal, so it was unnecessary to determine separately whether the misdirection itself invalidated the decision.

1. Court of Appeal (Civil Division). The father’s appeal was dismissed.
2. Watford County Court and Family Court. HHJ Wilding’s order of 13 November 2018 dismissed the father’s application for leave to oppose adoption orders concerning his two younger children.