(Court of Appeal, Lord Dyson MR, Sir J Munby P, Black LJ, 17 September 2013)
The two children, now aged 4 and 5, were removed from their mother's care, made subject to care and placement orders and were placed with prospective adopters. The mother sought permission to oppose the adoption pursuant to s 47(5) of the Adoption and Children Act 2002. Her application was refused but she was granted permission to appeal on the basis of what McFarlane LJ referred to as an astonishing change of circumstances and in light of the Supreme Court decision of Re B (Care Proceedings: Appeal)  UKSC 33,  2 FLR 1075.
The language used in Re B was striking and the message clear. Orders contemplating non-consensual adoption were a very extreme thing, a last resort, only to be made where nothing else would do, where no other course was possible in the child's interests, they were the most extreme option, a last resort - when all else failed, to be made only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else would do. It was a well established principle that the least interventionist approach should be adopted.
As explained by Lord Neuberger, although the child's interests in an adoption case were paramount, the court must never lose sight of the fact that those interests included being brought up by the natural family, ideally by the natural parents, or at least one of them, unless the overriding requirements of the child's welfare made that not possible.
As a matter of domestic and European law proper evidence was essential from both the local authority and the guardian. The evidence had to address all options which were realistically possible and had to contain an analysis of the arguments for and against each option with a fully reasoned recommendation.
Adequately reasoned judgments were also essential. In a number of recent judgments concern had been expressed at the lack of full reasoning in judgments in these cases. The judicial task was to evaluate all the options undertaking a global, holistic and multi-faceted evaluation of the child's welfare taking into account all of the negatives and positives of each option. These matters were of crucial importance in what were amongst the most significant and difficult cases family judges ever have to decide. Too often they were given scant attention or afforded little more than lip service.
Proper compliance with these essential requirements might well impose a more onerous burden on practitioners and judges, but it would not conflict with the requirement, soon to be imposed by statute, that care cases were to be concluded within a maximum of 26 weeks. Critical to the success of the judicial reforms was robust judicial case management from the outset of every care case. Case management judges had to be astute to ensure that the directions they gave were apt to the task and also to ensure that their directions were complied with. If, despite all, the court did not have the appropriate evidence it was, therefore, not properly equipped to decide these issues, then an adjournment would have to be directed, even if this took the case over 26 weeks. Where the proposal before the court was for non-consensual adoption, the issues were too grave, the stakes for all were too high, for the outcome to be determined by rigorous adherence to an inflexible timetable and justice thereby potentially denied.
In relation to s 47(5) of the Adoption and Children Act 2002 the phrases ‘exceptionally rare circumstances' and ‘stringent' found in the authorities had potentially serious adverse consequences and had no place in this context. Parliament had intended that section to provide a real and meaningful remedy. A parent making an application to oppose would usually be faced with the reality that care and placement orders had been made and the child placed with prospective adopters. Unless the section was to be robbed of its practical efficacy none of those facts could justify a refusal of leave.
The proper approach to an application under s 47(5) was a two stage process. Firstly, had there been a change of circumstances? If so, should leave to oppose be given? The court must consider all the circumstances and have particular regard to the parent's ultimate prospect of success and the impact on the child if the parent was or was not given leave to oppose.
In the instant case the judge had referred to a three stage test with the second and third tests being conflated. The judge was satisfied there had been a change of circumstances but considering the welfare checklist she noted the harm the children had suffered in the mother's care and concluded that it was entirely improbable that the mother would ultimately succeed and, therefore, refused her permission to oppose the adoption order.
The judge had been wrong to conflate the second and third tests but the real prospect of success test was an established requirement on both principle and authority as a leave filter. The judge's error of law did not vitiate the essential reasoning on her conclusion.
The judge accepted that there had been a change of circumstances but she had regard to the welfare checklist and did not treat the fact that the children had been placed with adopters as a conclusion to the matter. She was in addition entitled to make findings as to the children's experiences and the fact that there was a risk that the mother might not be able to cope. It was understandable that the judge concluded it was entirely improbable that the mother would succeed in opposing adoption and that not least in the light of the factors to which she had drawn particular attention the application for leave to oppose should be refused. She was entitled to attach to those factors the weight she did and to conclude that, taken together and in all the circumstances, they meant that in the children's best interests the mother's application had to be dismissed. She had not been wrong. The appeal was dismissed.
The full judgment is available to view and download here Re B-S (Adoption: Application of Threshold Criteria)  EWCA Civ 1146.