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(Court of Appeal, Sir J Munby P, Goldring, Elias LJJ, 16 October 2013)
Appeal proceedings in relation to two similar children cases were joined for consideration following of the decision of Re B-S  EWCA Civ 1146
In Re W the three oldest children were made subject to final care and placement orders shortly before the birth of the fourth child who was accommodated by the local authority pursuant to s 20 of the Children Act 1989. In proceedings in relation to that child the judge found that the parents had been unfairly treated by the local authority and that it had been fixed in its view that adoption was the best outcome. The judge nevertheless went on to make final care and placement orders. The parents were granted permission to appeal and on the same day the child was placed with prospective adopters.
An adoption application was made and the parents were refused permission to oppose. An adoption order was granted but the celebratory event put on hold pending the outcome of the appeal.
In Re H care and placement orders were made in respect of four siblings. Final contact between the two youngest child and their parents took place and they were placed with prospective adopters. Adoption orders were granted and the parents were refused permission for leave to oppose. The parents sought permission to appeal.
In judgments given before the decision in Re B-S was decided the Court of Appeal had to make appropriate allowance for that fact. The focus had to be on substance rather than form. Judgments had to follow the clear two-stage process of deciding, firstly, whether there had been a change in circumstances, and secondly, whether leave to oppose should be given.
In both cases the judgment refusing the parents permission to oppose did not make clear whether either the prospects of success lacked solidity or whether the judge found that the children's welfare demanded that the application be dismissed. There were also serious problems with the way the judges formulated the test. There was no option but to allow the appeals and remit the cases for reconsideration.
It was unacceptable that in the case of Re H the local authority failed to comply with the judge's order to file position statements regarding each child no less than 5 working days before the hearing. The parents were provided with the position statements just 45 minutes before the hearing. That put the parents in a deplorable position. There was no excuse for court orders not being obeyed.