(The s47 conundrum)
A placement order under s21 Adoption and Children Act 2002 (“ACA 2002”) can only be made if (a) the child’s parents or guardians consent to her “being placed for adoption with any prospective adopters who may be chosen by the local authority” and have not withdrawn that consent or (b) the court dispenses with that consent on the grounds either that the child’s welfare so requires or that the parent/guardian cannot be found.
“Parent” in this context means parent with PR. “Guardian” includes both s5 CA 89 guardian and s14A CA 89 special guardian.
Requirement for leave before adoption application can be opposed
By s47 ACA 2002 a parent or guardian of a child who has been placed for adoption under a placement order or who has been placed with the consent of each parent or guardian (given after the child reached the age of 6 weeks) or where advance consent under s20 ACA 2002 has been given, may not oppose the making of an adoption order without the court’s leave.
By s47(7) the court cannot give leave to oppose “unless satisfied that there has been a change of circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made.”
Application to revoke
It is worth noting that although a parent can apply under s24 ACA 2002 for leave to make an application to revoke a placement order they cannot do so once the child has been placed for adoption – s24(2)(b). Once a child has been placed, therefore, there is no opportunity for a parent to challenge the process until an adoption application is issued.
Child to live with prospective adopters before application to adopt can be made
Section 42 ACA sets out the period for which the child must live with prospective adopters before an adoption application can be made (i.e. before the application can be issued). Generally speaking the child must have her home with the adopters (or with one of them) “at all times during the period of ten weeks preceding the application.” If the applicants are LA foster carers the ten week period becomes 12 months, though that period can be shortened with leave of the court.
Notice of adoption application
Parents (with PR) and guardians are informed by the court that an adoption application has been made unless they have given the LA notice under s20(4)(a) ACA 2002 that they do not wish to be informed of any application for an adoption order. (Such notice may be withdrawn.) So as to facilitate the giving of notice when an adoption application is issued, the standard format of a placement order includes the following:
[Name] and [name] are directed to keep the court and the local authority
informed of their addresses and contact details. If they do not do so, service
may be effected by post to their last known addresses. Such service may be
deemed to be sufficient notice of any subsequent adoption proceedings and hearings within them.
Response to notice of adoption application
When served with notice the parents/guardians receive an acknowledgment form that they are asked to complete and send back to the court. On that form is a question as to whether the parent/guardian wishes to oppose the application. If the “Yes” box is ticked in response to that question the court will often treat the tick as an application for permission to oppose, without a formal application for leave being made. That in turn will lead to the appointment of a CG and the listing of a hearing for directions in the leave application.
The likelihood is that the court will require statements by the parents or guardians, setting out the change in circumstances on which they rely, a response by the adoption agency (almost always the local authority) and a report by the CG. I’m not aware of there being a template for a report on a s47(5) application; many of the headings in the standard analysis and recommendations used in care and placement proceedings are irrelevant, while matters that are relevant are noticeably absent.
Leave to oppose
The wording of the statue is singularly unhelpful. Section 47(7) tells us only when the court “cannot” give leave to oppose: no change of circumstances = no leave to oppose. The courts have developed and explained the test for when leave can be granted and, to a lesser extent, for when it should be granted.
Detailed consideration was given to this by the Court of Appeal in Re B-S (Adoption: Application of s47(5))  EWCA Civ 1146, building on the decision in Re P (Adoption: Leave Provisions)  EWCA Civ 616. The landscape was reviewed most recently in Re W (A Child: Leave to Oppose Adoption)  EWCA Civ 16.
Two stage process – Re P
Re P establishes that there is a two-stage process to be followed:
- Has there been a change of circumstances “of a sufficient nature and degree”? And, if so,
- Should the court then exercise its discretion to permit opposition to the adoption application?
With regard to the second stage, the child’s welfare throughout her life is paramount – the ACA welfare test, not the Children Act welfare test.
The first stage: change in circumstances
How is the first stage to be passed? What is “a sufficient nature and degree” of change? Lord Justice Wall in Re P said “….parents should not be discouraged from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable” and that whether there had been a “relevant” change of circumstances must be “a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application.”
The importation of the word “relevant” is key. The change must be to something that was at least part of the reasoning behind the child having been placed for adoption, typically perhaps a parent having escaped an abusive relationship or stopped using drugs: my child was removed from my care and placed for adoption because of x, y and z but I no longer do x, I no longer use y and z is now serving a long prison sentence.
Wall LJ specifically rejected an argument that the change had to be “significant”, which frankly feels a little odd. He said it had to be sufficient to make it “appropriate” for the judge to go on to consider whether to exercise their discretion to permit the parents to defend the adoption proceedings. You might think this is a circular argument; I couldn’t possibly comment.
Re B-S: Sir James Munby’s “ten points”
The Court of Appeal in Re B-S endorsed Wall LJ’s formulation of stage 1 of the test and went on to focus on stage 2. A CG advising a court might well do something very similar as stage 1 is often straightforward – though a tricky and important factor at stage 1 is often the sustainability of the change that the parent asserts has taken place and in that regard the view of the CG will be important.
In Re B-S the C of A expressed misgivings about the use in previous cases of the phrase “exceptionally rare circumstances” to describe when leave might be given and the word “stringent” to describe the test to be applied. Both were said to convey the wrong message, especially in the light of the “nothing else will do” test described in Re B. Sir James Munby, giving the judgment of the court, spoke of s47(5) being intended to provide a “meaningful remedy”.
Looking at stage 2, Sir James said it was a matter of judicial evaluation rather than of mere discretion. He then listed ten points to be considered in relation to “the evaluation, the weighing and balancing”, always remembering that the lifelong welfare of the child is the court’s paramount consideration.
The ten points are:
- Prospect of success here relates to the prospect of resisting the making of an adoption order, not, we emphasise, the prospect of ultimately having the child restored to the parent’s care.
- For purposes of exposition and analysis we treat as two separate issues the questions of whether there has been a change in circumstances and whether the parent has solid grounds for seeking leave. Almost invariably, however, they will be intertwined; in many cases the one may very well follow from the other.
- Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do” and that, as Lord Neuberger emphasised, the child’s interests include being brought up by the parents or wider family unless the overriding requirements of the child’s welfare make that not possible. That said, the child’s welfare is paramount.
- At this, as at all other stages in the adoption process, the judicial evaluation of the child’s welfare must take into account all the negatives and the positives, all the pros and cons, of each of the two options, that is, either giving or refusing the parent leave to oppose. Here again, as elsewhere, the use of Thorpe LJ’s ‘balance sheet’ is to be encouraged.
- This close focus on the circumstances requires that the court has proper evidence. But this does not mean that judges will always need to hear oral evidence and cross-examination before coming to a conclusion. Sometimes, though we suspect not very often, the judge will be assisted by oral evidence. Typically, however, an application for leave under section 47(5) can fairly and should appropriately be dealt with on the basis of written evidence and submissions: see Re P paras 53-54.
- As a general proposition, the greater the change in circumstances (assuming, of course, that the change is positive) and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is to be refused.
- The mere fact that the child has been placed with prospective adopters cannot be determinative, nor can the mere passage of time. On the other hand, the older the child and the longer the child has been placed the greater the adverse impacts of disturbing the arrangements are likely to be.
- The judge must always bear in mind that what is paramount in every adoption case is the welfare of the child “throughout his life”. Given modern expectation of life, this means that, with a young child, one is looking far ahead into a very distant future – upwards of eighty or even ninety years. Against this perspective, judges must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. In this as in other contexts, judges should be guided by what Sir Thomas Bingham MR said in Re O (Contact: Imposition of Conditions)  2 FLR 124, 129, that “the court should take a medium-term and long-term view of the child’s development and not accord excessive weight to what appear likely to be short-term or transient problems.” That was said in the context of contact but it has a much wider resonance: Re G (Education: Religious Upbringing)  EWCA Civ 1233,  1 FLR 677, para 26.
- Almost invariably the judge will be pressed with the argument that leave to oppose should be refused, amongst other reasons, because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application. We do not seek to trivialise an argument which may in some cases have considerable force, particularly perhaps in a case where the child is old enough to have some awareness of what is going on. But judges must be careful not to attach undue weight to the argument. After all, what from the perspective of the proposed adopters was the smoothness of the process which they no doubt anticipated when issuing their application with the assurance of a placement order, will already have been disturbed by the unwelcome making of the application for leave to oppose. And the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management before the hearing of the application for leave. If appropriate directions are given, in particular in relation to the expert and other evidence to be adduced on behalf of the parent, as soon as the application for leave is issued and before the question of leave has been determined, it ought to be possible to direct either that the application for leave is to be listed with the substantive adoption application to follow immediately, whether or not leave is given, or, if that is not feasible, to direct that the substantive application is to be listed, whether or not leave has been given, very shortly after the leave hearing.
- We urge judges always to bear in mind the wise and humane words of Wall LJ in Re P, para 32. We have already quoted them but they bear repetition: “the test should not be set too high, because… parents… should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”
The word “solid” appears several times in the above list. What the court is looking for is “solidity” in the parents’ case, in other words the court needs to be satisfied that (given a change in circumstances) the likelihood of successful parental opposition to adoption is more than fanciful. That in turn suggests, at least to me, that the parents must be able to put forward an alternative future for the child. I struggle with this because at (i) we are told that the issue is about the prospects of opposing the making an adoption order, not of having the child returned to the care of the parents – but surely for parents successfully to oppose adoption they must be able to advance an alternative plan. I’ve never had to argue that point, which remains a mystery to me.
A presumption in favour of leave?
Point (iii) comes close to suggesting that if there has been a relevant change and if the parents’ case has “solidity” there is a presumption in favour of leave to oppose being granted: “the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave” – and then there’s a reminder of the Re B mantra.
The passage of time
The suggestion at (iv) that the use of a balance sheet is to be encouraged is perhaps helpful to the CG when preparing a report, in which connection point (vii) regarding the passage of time is important and possibly even crucial.
By the time an application for leave to oppose is heard the child will have been with the prospective adopters for at least 10 weeks and probably for very much longer, and will almost certainly have been separated from her parents for even longer than that. Imagine removal under an ICO, six months of care proceedings ending with care and placement orders, a reducing pattern of family time, a search for adopters, a “wish you well” contact, eventually a placement, 10 weeks or more before the adoption application is issued, service of notice on the parents, a “yes please I’d like to oppose” response, a directions hearing, an exchange of evidence and reports and, eventually, a hearing of the application for leave to oppose. Experience suggests that by the time the leave application is heard it is not at all uncommon for a year have past since the child last saw her parents. In a Re W (Adoption: Set Aside and Leave to Oppose)  EWCA Civ 1535 Mr Justice Coleridge, sitting in the Court of Appeal, summed up the passage of time issue as follows:
“No one can have anything but the profoundest sympathy for this mother who seems to have turned her life round in the course of the last two years and to have conquered her addiction to hard drugs. If the court was in the business of rewarding parents for effort in these circumstances no doubt, she would succeed and retain the effect of the Holman J order. However, whilst she has been sorting out her life, her child’s life has inevitably moved on in her absence. He has not seen her for three years and is now completely embedded in his new family. To unravel the whole process through which the child and the adopters have passed since the child’s original removal and placement is quite simply a horrendous prospect both from the point of view of the adopters but more importantly the child himself.”
In Re W the C of A overturned a decision by Mr Justice Holman to grant the mother leave to oppose. The point at (vii) appears to be that the court must not be swayed by the “mere” passage of time (a factor that will be ever present) and that consideration must be given to the facts of the individual case in the context of the paramountcy of the child’s welfare.
Re W  – Court of Appeal grants leave to oppose
In spite of the apparent leaning in Re B-S towards leave being granted if there is a relevant change in circumstances, the reality seems to be that it rarely happens in real life. However, leave was granted by the C of A in Re W (A Child: Leave to Oppose Adoption)  EWCA Civ 16 in spite of the following chronology:
- Child born April 2017
- Removed from parents aged 2 days
- Placement order March 2018
- Final contact October 2018
- Placed November 2018
- Parents pleaded guilty to child cruelty (community orders made) January 2019
- Adoption application issued April 2019
- Leave to oppose refused 1 November 2019
- Appeal allowed 21 January 2020
The mother in the 2020 Re W did a course of CBT. Both parents went on a three month parenting course. They showed insight and remorse, and by late 2018 their oldest child returned home from foster care, followed in July 2019 by the second eldest. Professionals said the situation was by then “hugely different” – but the subject child had never lived with his parents and he had formed a strong and positive attachment to his prospective adopters, with whom he was thriving. The CG said she couldn’t rule out the possibility of the child transferring to his parents’ care but that further evidence was required about his attachment and ability to transfer. She said the idea of a successful transfer back to the birth parents was based on solid foundations and that the LA’s assessment placed insufficient emphasis on the impact on the child in later life of the loss of his birth family. She recommended that leave be granted and that the necessary further assessments take place in the context of contested adoption proceedings. The Circuit Judge disagreed, finding there was no solidity in the parents’ case because of the child’s previous attachment being disrupted, because he was now attached to the prospective adopters and because there was a lack of relationship with his birth family.
Granting the parents’ appeal, Lord Justice Peter Jackson said as follows:
- To rule out the possibility of a birth family placement for B, even at this late stage, was premature. The decision depended on a view of attachment that was not agreed as between the social work witnesses or supported by expert evidence. This was a case where all the evidence, including expert evidence about the emotional and psychological effect on B of a further move, needed to be fully considered. Nothing less than that could adequately resolve the professional disagreement in this case. The firm stance taken by the Guardian and his own initial instinct that expert evidence may be needed should have alerted the judge to the fact that the parents’ opposition to B’s adoption needed to be fully considered.
- By excluding the possibility of B being cared for by his parents the judge was inevitably prevented from weighing up all the matters that are likely to be relevant to his lifelong welfare. The factors he found compelling (attachment and lack of a birth family relationship) could not be accurately evaluated on the available evidence. Nor were they the only factors affecting B’s welfare, when there was evidence of considerable parental change leading to the return of his siblings to the family home. The fact that a move would carry disadvantages is not in doubt, but it may not be the whole picture. Even if B is to be adopted it is important for him to know in later life that he really could not have been cared for by his parents.
- The negative aspects of a contested adoption hearing must always be taken into account, but in the absence of specific disadvantages, they cannot in themselves be given much weight. Nor, despite the judge’s understandable concerns, can further short-term delay be very influential when seen alongside the lifelong significance of the decision about adoption.
Peter Jackson LJ’s paragraph (3) is important because earlier in his judgment he had said there may be cases where although there was both sufficient change and a solid prospect of success there might be other reasons connected to the child’s welfare that might lead to the refusal of leave, “for example where the existence of contested proceedings would have a harmfully destabilising effect upon the child or the placement.” Clearly he didn’t think this was one of those cases.
In the light of the above, I suggest that the court hearing a s47(5) leave application will expect the assistance of the CG with regard to matters including the following:
- Is it open to the court to find that there has been a relevant change of circumstances?
- If so, do the parents have a “solid” case for opposing adoption? That must include having a tenable alternative proposal for the future care of the child, but care must be taken not to pre-judge the final outcome either way.
- What further evidence, if any, is required in the event of a contested adoption hearing? This might be about the child (as in Re W) or the parents or both.
- Would the fact of contested proceedings have such negative consequences on the child’s welfare that leave should be refused on that basis?
- What could be the long term consequences for the child of her parents not being given an opportunity to contest?
- Any other welfare matters that militate either for or against leave being granted – not for or against adoption or any other outcome, but merely for or against leave to oppose the application for an adoption order.
A small update: since preparing the above, my attention has been drawn to a case in which the principles can be seen in action. In April 2020 His Honour Judge Willans granted a mother (who had addressed and mitigated complex domestic abuse issues) leave to oppose, then in October of the same year he made adoption orders at a contested hearing. These are first instance decisions and, therefore, not authorities as such, but if you want to see how the case was dealt with the reports are Re A and N (Adoption: leave to oppose)  EWFC B81 and Re E, A and N (Contested adoption)  EWFC B82. They are available on BAILII.
11 January 2022