Chris Godfrey

Leave to Apply to Revoke Placement or Oppose Adoption Orders – A Meaningful Remedy

The landmark case of Re B-S (Children) [2013] EWCA Civ 1146 has rightly caused a stir in the realm of public law cases, strongly influencing practice and outcomes in care and adoption cases in general. Its most direct application however is of course in the realm of applications to prevent adoption after care orders have been made. The case contains substantial encouragement to parents who might have improved their circumstances since final care orders were made. If there is any realistic chance of resuming care of children at this stage there can hardly be a more important decision to be made. As the President, Munby J, observed at the outset of the court’s judgment: the appeal not merely requires us to determine an important question of law as to the proper application of section 47(5); it also raises some very significant matters of more wide-reaching importance.”  The court issued comprehensive guidance.

Parents seeking leave to oppose adoption pursuant to section 47(5) face a daunting task. However, as deliberately pointed out at paragraph 7 of B-S:

 “Section 47(5) is intended to afford a parent in an appropriate case and meaningful remedy – and a remedy, we stress, that may enure for the benefit not merely of the parent and also of the child.”

Paragraph 71: “Parliament intended section 47(5) to provide a real remedy. Unthinking reliance upon the concept of the “exceptionally rare” runs the risk – a very real and wholly unacceptable risk – of rendering section 47(5) nugatory and its protections illusory. Except in the fairly unusual case where section 47(4)(b)(i) applies, a parent applying under section 47(5) will always, by definition, be faced with the twin realities that the court has made both a care order and a placement order and that the child is now living with the prospective adopter. But, unless section 47(5) is to be robbed of all practical efficacy, none of those facts, even in combination, can of themselves justify the refusal of leave.”

I recently represented a father of five, two of whom had come to live with him long-term at the conclusion of care proceedings. Another two had been placed in long-term foster care and one child was well on the road to adoption. The case concerned this last child, the four-year old intended adoptee. By the time the father’s application for leave to oppose the adoption order was actually heard the child had already been happily living with her prospective “forever family” for many months. Not surprisingly the local authority went into full defence mode, referring at every opportunity to the dreadful emotional toll this whole process was likely to take on the adoptive family.

Whilst taking great care to recognise the completely understandable distress suffered by the prospective adopters, the father still felt he had something to offer to his youngest child. The essence of his case was that there had been a number of significant changes in his life since the care order was made. Despite a few blips and one fairly serious incident he’d been doing well with the two children in his care [the local authority having by now effectively closed their file on those two children]. He had originally intended to have one of the other children return home from foster care, but those plans had changed and nobody now advocated that move. Further he argued that he now had a proven track record of being successfully supported by his immediate family.

In response to the application for leave the local authority produced a short statement that purported to address the salient issues. I was very unhappy about the quality of that statement. It seemed to me to be based on a misconceived reading of the present state of the legal test. More fundamentally it was plain that the local authority had utterly failed in any meaningful way to investigate the father’s proposals for the child. The social worker’s report was superficial, unresearched and uninformed by any meeting whatsoever with father, the children for whom he was caring, the children’s very supportive grandmother or any member of the wider maternal family. Nor had any enquiries been made with the boys’ school. Further, the statement contained quotations and references unsupported by source material. At the first hearing, following submissions about the quality of this report, the judge remarked that she was obviously not in a position to adjudicate upon the application that day; that the local authority had not appeared to appreciate that this was not simply to be “a rubber-stamping exercise”; and that the local authority must return to court with a new statement of evidence “well-founded on proper investigation”.

Further, the social workers didn’t appear to appreciate fully the nature of the central questions clarified in Re B-S. They repeatedly harked back to the original threshold criteria established in the care proceedings, without very much focus on events since then. By contrast the approach that must be taken by the court is absolutely clear. Paragraph 73 of the report:

There is a two stage process. The court has to ask itself two questions: Has there been a change in circumstances? If so, should leave to oppose be given

Then at paragraph 74 there is a detailed 10-point guide as to how the court should approach the task of evaluating all the circumstances that come to be considered at the second stage. For ease of reference it is set out below:

(i)  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. 

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. 

(iii)  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.

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.

(v)  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.

(vi)  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.

(vii)  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.

(viii)  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) [1995] 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) [2012] EWCA Civ 1233, [2013] 1 FLR 677, para 26.

(ix)  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. 

(x)  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.”

Plainly every one of those factors might be relevant and important in any given case. Taken together these ten points represent a scrupulously careful and deliberately nuanced set of considerations, a million miles away from the rigid kind of thinking put forward by some local authorities.

Point (v) above provides an opening (in the right case) to something very much more substantial than a short hearing on submissions. Indeed I managed to persuade the judge in this particular case, where the evidence from the local authority was so deficient, that a full hearing with oral evidence and cross-examination was necessary in order to do justice to the application. In the end we had a three-day fully contested case, with substantial evidence from the father, a grandparent and two different social workers.

It was fully recognised that this application must have been truly distressing for the prospective adopters, but if these applications are to represent a true and meaningful remedy then, in that spirit, they ought to be decided based on evidence that is properly collated and seen to be fully and fairly tested. Or to put it another way, parents are entitled to a fair trial.

In the end, and sadly, the father was not successful in his bid to prevent this particular adoption. However, as he remarked to me himself, the ultimate process and the judge’s approach to his full hearing could not be criticised. Indeed he was so grateful for the way things were handled that after judgment he insisted upon thanking the judge personally for the care she had taken with the case.

So, on the face of it, here is a beautifully clarified piece of law. An erudite authority steers us down clear guidelines, with intellectually rigorous yet subtle thought processes. Lazy or over-defensive local authorities can be obliged to address the issues properly. Full hearings can be justified. Theoretically this all sounds like progressive stuff. However, until legal aid entitlement for hearings of this type is sorted out, it’s difficult to see how this translates into the real world.

Again Munby J has had a lot to say about this recently – see D (A Child) (No 2) EWFC 2. Again it’s all encouraging stuff. Let’s hope that it will contribute to a sea change in legal aid, whereby parents can have proper representation at all stages of the process. Otherwise they are bound to think, rightly, that they have been sold short. Last word to the President:

‘Whatever view may be taken as to their prospects of success at the final hearing, a matter on which I express no views whatever, though recognising, as I have earlier noted (Re D, para 9), that the report of the independent social worker is unfavourable to the parents, I would view with the very gravest concern any suggestion that they should be denied legal aid on ‘merits’ grounds. Given the extreme gravity of the issues at stake and their various problems and difficulties, it is, as I said before (Re D, paras 3, 31), unthinkable that the parents should have to face the local authority’s application without proper representation. I repeat what I said in my earlier judgment:

 “To require them to do so would be unconscionable; it would be unjust; it would involve a breach of their rights under Articles 6 and 8 of the Convention; it would be a denial of justice.”

 A parent facing the permanent removal of their child must be entitled to put their case to the court, however seemingly forlorn, and that must surely be as much the right of a parent with learning disabilities (as in the case of the mother) or a parent who lacks capacity (as in the case of the father) as of any other parent. It is one of the oldest principles of our law – it goes back over 400 centuries to the earliest years of the seventeenth century – that no-one is to be condemned unheard. I trust that all involved will bear this in mind.’

Chris Godfrey

February 2015