Court of Appeal

Published June 28, 2007

In re P (A Child)(Adoption proceedings)

Before Lord Justice Thorpe, Lord Justice Wall and Mr Justice Hedley

Judgment June 27, 2007

Judges hearing applications by parents for leave to defend adoption proceedings after a placement order had been made had to undertake a two-stage process: first, decide whether there had been sufficient change of circumstance; then consider what the welfare of the child required.

The Court of Appeal so held in a reserved judgment in dismissing an appeal brought by Mr P, father of S, against the refusal on April 4, 2007 by Judge Corrie sitting as a High Court judge at Oxford of S’s parents’ application for leave to oppose the making of an adoption order.

Miss Eleanor Platt, QC and Mr Andrew Pote for the father; Mr Piers Pressdee for the local authority and the adoption agency; Mr Jonathan Sampson for the mother; Mr Simon Miller for the guardian.

LORD JUSTICE WALL, delivering the judgment of the court, said that this was the first case to reach the Court of Appeal in which the leave provisions in section 47 of the Adoption and Children Act 2002 fell to be considered.

S’s parents were married. When the proceedings began, they had a highly volatile relationship, punctuated by serious violence inflicted by the father on the mother and exacerbated by a mutual abuse of alcohol and illicit drugs.

The result was the removal of S from her parents’ care by means of an emergency protection order, the institution of care proceedings by the local authority, and a care order made by Judge Corrie following a substantive and fully contested hearing.

The local authority’s care plan was for S to be adopted by strangers and Judge Corrie made a placement order under section 21 of the 2002 Act. The placement order was opposed by the parents. In making the order, the judge dispensed with both parents’ consent and S was placed with the prospective adopters where she had remained ever since.

On the application for leave to defend the adoption proceedings, the parents’ case was that they both, but in particular the father, had addressed al the deficiencies in their lives and in their parenting of S identified by the judge in the care and placement order proceedings.

The parents asserted that there had been a change in circumstances since the placement order was made within section 47(7) of the 2002 Act sufficient for the judge to give them leave to defend the proceedings.

The judge rejected their application for two reasons: first he was not satisfied that there was a sufficient change in their circumstances to cross the leave threshold.

Alternatively, even if he was wrong, he held that S’s welfare, which he found to be his paramount consideration, required her to be adopted.

Miss Platt challenged both limbs of the judge’s conclusion and submitted that the judge had in any event been wrong to hold that S’s welfare was the court’s paramount consideration on an application for leave to defend adoption proceedings.

Their Lordships were of the view that the judicial decision whether or not to give leave to a parent to defend adoption proceedings under section 47(5) was “a decision relating to the adoption of a child” and that, accordingly, was governed by section 1 of the 2002 Act.

In their Lordships’ judgment, analysis of the statutory language in sections 1 and 47 led to the conclusion that an application for leave to defend adoption proceedings under section 47(5) involved a two-stage process.

First, the court had to be satisfied that there had been a change in circumstances within section 47(7). If there had been no change, that was the end of the matter.

If, however, there had been a change, then the door to the exercise of a judicial discretion was opened, and the decision whether or not to grant leave was governed by section 1. In other words, the paramount consideration of the court must be the child’s welfare.

Solicitors: Wilsons, Oxford; Mr Peter Clark, Oxford and Darbys, Oxford; Whetter Duckworth Fowler, Oxford; Challenor Gardiner, Oxford.

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