S (A Child)

A parent seeking leave to oppose an adoption order must first establish a sufficient change in circumstances since the placement order. The court must then determine whether leave serves the child’s lifelong welfare, considering the parent’s prospects of resisting adoption and the impact upon the child.

The first stage requires a reliable baseline identifying the circumstances and findings underlying the placement order. A court cannot assess change properly without that information. Procedural fairness also ordinarily requires disclosure of material which may contribute to an adverse decision. Confidential adoption material may be disclosed in an appropriately redacted form. Exceptionally, disclosure may yield to a demonstrated risk of significant harm to the child.

The mother applied under section 47 of the Adoption and Children Act 2002 for leave to oppose the adoption of her son. HHJ Jack refused the application. He lacked the judgment or findings underlying the placement order and placed substantial reliance on an Annex A report which the mother had not seen.

Permission to appeal was limited to whether those two procedural deficiencies deprived the mother of due process. The Court of Appeal did not examine the merits of her application. It considered whether the judge had an adequate baseline against which to assess changed circumstances and whether reliance on undisclosed confidential material was fair.

1. The appeal was allowed and the application remitted for an expedited rehearing. The mother’s application had not been determined with the procedural integrity required by its far-reaching consequences. The possible inevitability of the eventual result did not remove the need for a fair hearing.

2. The statutory process under sections 47(5) and 47(7) of the Adoption and Children Act 2002 has two stages. First, the parent must establish a change in circumstances of sufficient nature and degree since the placement order. Secondly, the court exercises its discretion by treating the child’s welfare throughout life as paramount. It considers the parent’s more than fanciful prospect of successfully opposing adoption and the impact upon the child of granting or refusing leave. Re P (A Child) [2007] EWCA Civ 616 and Re B-S (Children) [2013] EWCA Civ 1146 applied.

3. HHJ Jack could not assess change properly without the earlier judgment or other evidence identifying the findings upon which the placement order had been made. The local authority’s affidavit, skeleton argument and indexed papers did not provide the necessary baseline. Matters considered on an earlier unsuccessful revocation application did not thereby lose their possible cumulative relevance.

4. An adverse determination at the welfare stage may sometimes make a defect at the first stage immaterial. It did not do so here. The judge placed heavy reliance on an Annex A report which the mother had not seen, although it contained material about her and her birth family which she might have challenged.

5. Confidentiality under the Family Procedure Rules 2010 did not prevent disclosure. Rule 14.13 empowered the court to direct disclosure, with appropriate redaction. Applying Re D (Minors) (Adoption Reports: Confidentiality) (1995) 2 FLR 687, fairness ordinarily entitles a party to disclosure of material which may be used to reach an adverse decision. That principle has particular force in adoption proceedings. A demonstrated risk of significant harm to the child may exceptionally outweigh it.

6. The mother bore the burden of establishing entitlement to leave, but this did not absolve the local authority or legal representatives. Representatives owe a duty to assist the court in delivering justice. The local authority also had an interest on the child’s behalf in securing a timely decision reached with due process.

• Court of Appeal (Civil Division): By [2021] EWCA Civ 605, unanimously allowed the mother’s procedurally limited appeal and directed an expedited rehearing of her application for leave to oppose adoption.
• Family Court: HHJ Jack refused the mother’s application under section 47 of the Adoption and Children Act 2002 for leave to oppose the adoption order.