02 Oct 2013, 16:30 by Priya Bakshi
Labels: adoption, barrister, care, children-act, court-of-appeal, direct-access, lawyer, legal-services, public-access
The Court of Appeal handed down a unanimous judgment on 17 September 2013 and gave guidance on the approach to be followed in cases involving adoption, and clarified the test for granting leave to oppose an adoption order under the Adoption and Children Act 2002 section 47(5).
In Re B-S the mother, M, had two daughters. Living in vulnerable circumstances, the children were removed from M's care in February 2011 and were subject to a final care and placement order in October 2011. Contact between M and her daughters ceased in December 2011 and the children were subsequently placed with prospective adopters. M applied for leave to oppose the adoption order under section 47(5) on the ground that there had been a change in circumstances since the care and placement orders were made. M had left her abusive partner, met her present husband who was serving in the armed forces and with whom she had another child, and of whom the local authority had not issued public law proceedings and had in fact written a positive assessment.
Although it was acknowledged that M's circumstances had changed, Parker
J refused M permission to oppose the adoption because in applying the welfare test it was found that it was entirely improbable that she would succeed in having the children returned to her.
McFarlane LJ subsequently granted M permission to appeal against the
refusal to grant her leave to oppose the adoption of her children. M's appeal was ultimately refused on all grounds. The judgment gave clear guidance on how to approach adoption cases.
(1) There should be proper evidence from both the local authority and
from the guardian addressing all the options possible and there should be an analysis of each option. In particular there must be an analysis of the pros and cons and a fully reasoned recommendation. The judge should also evaluate all the options and undertake a global holistic and multi-faced evaluation of the child's welfare taking into account all the positives and negatives of each option. A proper focused attention to the specifics should also be given.
(2) Under section 47(5) the court has to ask itself two questions: has there been a change in circumstances; and if so, should leave to oppose be given.
Where there has been a change in circumstances, the court would then have to consider: the parent's ultimate prospect of success in resisting the adoption order if given leave to oppose; and the impact on the child if the parent was, or was not, given leave to oppose, bearing in mind that the child's welfare is paramount.
(3) Following the recent case of Re B (A Child)  UKSC 33, the appellate court should intervene whenever the judge was wrong. In the instant case the judge's refusal was not wrong. The judge accepted that M's circumstances had significantly changed, gave regard to the welfare checklist and recognised that the children's interests were paramount. Attention was drawn to key facts and therefore the judge's conclusion was not wrong.