W (A Child: Leave To Oppose Adoption)

On an application for leave to oppose an adoption, the court must determine whether circumstances have sufficiently changed and whether the parent has a solid prospect of resisting adoption. It must then evaluate whether granting leave serves the child’s lifelong welfare.

A solid case is one requiring full consideration before adoption is decided. The leave hearing should not become a premature trial on incomplete evidence. Where attachment consequences are disputed and may determine the outcome, the need for expert evidence may indicate that leave should be granted. Delay and the burdens of contested proceedings carry limited weight unless they create specific welfare disadvantages.

A child was removed from his parents shortly after birth, made subject to a placement order and placed with prospective adopters. After the placement order, the parents made substantial progress. Their other children returned or were expected to return home. When the prospective adopters applied to adopt the child, the parents sought leave to oppose under section 47(5) of the Adoption and Children Act 2002.

The Family Court accepted that circumstances had changed but refused leave. It considered that the child’s attachment to the prospective adopters and the likely harm from another move meant that the parents lacked solid prospects of resisting adoption.

The Children’s Guardian appealed. The central issues were whether the judge had adequate evidence about the consequences of a move, had wrongly assessed the solidity of the parents’ case, and had adequately addressed the Guardian’s contrary recommendation.

1. Appeal allowed. The judge’s order was set aside. The parents were granted leave to oppose the adoption, and the adoption application was remitted for urgent case management and an early final hearing.

2. An application under section 47(5) of the Adoption and Children Act 2002 requires consideration of whether circumstances have sufficiently changed and whether the parent has a solid prospect of resisting adoption. If those hurdles are cleared, the court must undertake a broad and practical evaluation of the welfare advantages and disadvantages of granting leave. The essential question is whether the child’s interests require fresh and current consideration of whether parental consent should be dispensed with.

3. A case is solid when it has substance and requires full consideration before adoption can properly be decided. The leave application should usually be determined promptly on written evidence. It must not develop into a trial of the adoption application on incomplete evidence. If expert or oral evidence appears necessary to resolve a material issue, that may itself indicate that leave should be granted.

4. The judge prematurely ruled out placement with the birth family. His conclusion depended upon a disputed assessment of attachment and was unsupported by expert evidence about the emotional and psychological consequences of another move. The professional disagreement, the Guardian’s firm position and the judge’s initial view that expert evidence might be necessary showed that the parents’ opposition required full consideration.

5. By excluding parental care prematurely, the judge could not evaluate all matters relevant to lifelong welfare. The child’s attachment and lack of an existing relationship with his birth family could not be accurately assessed on the available evidence. They also had to be considered alongside substantial parental change and the successful return of siblings to the family home.

6. The disadvantages of contested adoption proceedings must be considered, but they carry little weight without evidence of specific harm. Further short-term delay could not be decisive when measured against the lifelong significance of adoption. The decision granting leave did not determine the eventual outcome of the adoption application.

1. Court of Appeal (Civil Division): The appeal was allowed, the refusal of leave was set aside, and leave to oppose the adoption was granted. The adoption application was remitted for urgent case management and an early final hearing: [2020] EWCA Civ 16.

2. Family Court at Manchester: HHJ Wallwork accepted that circumstances had significantly changed but refused the parents leave to oppose the adoption because he considered their prospects lacked solidity and the child’s welfare required dismissal of the application.