M (A Child: Leave to Oppose Adoption)

An application for leave to oppose an adoption order under section 47(5) of the Adoption and Children Act 2002 involves two stages. The court must first find a relevant change of circumstances since the placement order. The change need not be complete, significant, unexpected, unforeseen or unforeseeable.

If that threshold is met, the court must evaluate all circumstances, with paramount regard to the child’s lifelong welfare, and decide whether to revisit the approved adoption plan. The parent’s prospects of successfully opposing adoption are important but are neither a separate test nor the exclusive criterion. A sufficient change does not itself establish sufficient prospects. The nature and extent of change must be assessed against the baseline that justified adoption and alongside the effect of contested proceedings on the child.

W was made the subject of care and placement orders after the Family Court found that her young parents could not provide safe care. She was later placed with prospective adopters and an adoption application followed.

The mother applied for leave to oppose the adoption order under section 47(5) of the Adoption and Children Act 2002. Recorder Pemberton, sitting in the Family Court at Leicester, found that the mother’s improved mental health and increased independence amounted to a change of circumstances and granted leave. The father’s application was refused.

The local authority, supported by the Children’s Guardian, appealed. The central issue was whether the Recorder’s welfare evaluation justified reopening the adoption plan in light of the mother’s recent progress, the continuing uncertainties in her circumstances, and W’s settled attachment to her prospective adopters.

Appeal allowed. The court unanimously discharged the order granting the mother leave to oppose W’s adoption.

1. The statutory process under sections 47(5) and 47(7) of the Adoption and Children Act 2002 has two stages. First, the court decides whether there has been a relevant change of circumstances since the placement order. If there has, the court evaluates all circumstances and asks whether, giving paramount consideration to the child’s lifelong welfare, it should revisit the adoption plan.

2. The threshold change need only be sufficient in the circumstances to open the door to that welfare evaluation. It need not be complete or described as significant. Nor must it be unexpected, unforeseen or unforeseeable. The contrary approach in Prospective Adopters v SA and Prospective Adopters v London Borough of Tower Hamlets added an unwarranted gloss to simple statutory language and was rejected.

3. At the second stage, the parent’s prospects of resisting adoption are an important welfare consideration, but not a separate or exclusive test. The court must consider the nature and degree of the change, the prospects of success, and the effects on the child of granting or refusing leave. Those matters are interrelated. Where rehabilitation and adoption are the only realistic outcomes, opposition to adoption and rehabilitation may in practice be the same issue.

4. The Recorder was entitled to find a threshold change. However, she wrongly treated that finding as leading to prospects of success that were more than fanciful. The change was fragile and arose from a very low baseline. She did not give adequate weight to the professional evidence, the mother’s untested independent living and relationship, the absence of recommended therapeutic work, and the lack of evidence that skilled and secure parenting could be achieved within W’s timescale.

5. W had lived with her mother only briefly, had not seen her for 16 months, and was securely attached to the prospective adopters. The evidence did not support disrupting that placement for rehabilitation that was plainly unlikely to serve her welfare. The grant of leave was therefore wrong.

As practical guidance, where reasons for a placement order are given extempore, the court should direct the local authority to obtain a transcript unless there is a written judgment or an agreed approved note. It supplies the baseline for any later application.

• Court of Appeal (Civil Division). The local authority’s appeal was allowed and the order granting the mother leave under section 47(5) of the Adoption and Children Act 2002 was discharged: [2023] EWCA Civ 404.
• Family Court at Leicester. Recorder Pemberton granted the mother leave to oppose the adoption order on 7 November 2022. The father’s corresponding application was refused and was not appealed.
• Family Court. Her Honour Judge George made care and placement orders in March 2021, dispensing with parental consent. No transcript or approved note of that extempore judgment was available.