Confidential Prospective Adopters v BM & Ors

Disclosure of a confidential Annex A adoption report is governed by an unfettered, reciprocal balancing of all relevant rights and interests. Relevance alone does not create an entitlement to disclosure or shift the burden to those opposing it.

In an application for leave to oppose adoption following a placement order, the report will ordinarily have limited relevance because the change-of-circumstances and welfare issues can usually be determined from the evidence in the care and placement proceedings and an updated social-work statement. The confidentiality, security and stability of the adoptive placement, the risk of jigsaw identification, delay and the welfare of the child are material considerations.

At that preliminary stage, refusal of full disclosure will ordinarily be necessary and proportionate. Disclosure must be reconsidered if leave to oppose is granted.

G, a three-year-old child, had been made subject to care and placement orders and placed for adoption with confidential prospective adopters. His mother, BM, applied for leave to oppose the adoption and sought disclosure of the full Annex A report prepared under the adoption rules.

Part B of the report had already been disclosed by consent, subject to a dispute about redactions. BM sought the remaining material whether or not she obtained leave. The prospective adopters, local authority, guardian and intervenors opposed disclosure, relying on confidentiality, privacy, placement security and the risk of harm to G.

The central issue was whether, at the preliminary leave stage and irrespective of whether leave was granted, fairness under articles 6 and 8 of the Convention required disclosure of the full report.

1. Application refused. BM was not entitled to disclosure of the full Annex A report at the preliminary stage. Her application for leave to oppose was remitted to the Family Court at Wolverhampton.
2. The adoption scheme must be viewed as a whole. A placement order follows a prior welfare determination, made with the birth parent’s participation and disclosure of the relevant evidence. Sections 47(5) and 47(7) of the Adoption and Children Act 2002 restrict the birth parent’s participation unless there has been a change of circumstances and the child’s lifelong welfare requires leave. If leave is refused, FPR 2010 r 14.16(2) prevents the parent from being heard on whether the adoption order should be made.
3. Under FPR 2010 rr 14.11 and 14.13, the Annex A report is confidential and disclosure beyond the prescribed recipients lies within the court’s discretion. There is no presumption either for or against disclosure. The court must balance reciprocally the rights and interests of the birth parent, child and prospective adopters, having regard to the procedural stage, issues, available evidence and permitted participation.
4. The six-question framework in Re T (Children: Non-Disclosure) [2024] EWCA Civ 241 provides useful guidance. The court should consider relevance, the real possibility and gravity of harm, measures reducing risk, welfare advantages and disadvantages, strict necessity and proportionality, and whether any non-disclosure can be limited.
5. At the leave stage, the report is usually of marginal relevance. The benchmark for change is ordinarily better established by the care and placement evidence, including the threshold, final evidence, expert material, guardian’s analysis and judgment. A focused updating statement can address the child’s current welfare. The unusual decision in Re S (A child) [2021] EWCA Civ 605 turned on reliance upon Annex A material as the benchmark in the absence of the usual evidence and did not establish a general rule requiring disclosure.
6. Here, the limited relevance of the undisclosed material was outweighed by the risks of placement instability, safeguarding harm, jigsaw identification, interference with the prospective adopters’ article 8 rights and delay. Refusal of full disclosure was necessary and proportionate. If leave were granted, disclosure would have to be revisited for the contested final hearing. The same conclusion would have applied to Part B had it not already been disclosed.
7. Disclosure was also refused irrespective of the outcome of the leave application. Article 6 does not require disclosure divorced from the statutory limits on the birth parent’s participation, and the article 8 rights and welfare interests of the prospective adopters and child justified the interference with BM’s rights.

First-instance decision. The judgment records that the disclosure issue had been identified by HHJ Carter and re-allocated to the Family Presiding Judge for the Midlands. No earlier judgment determining the present application is stated.