W (A Child)

Factual and Procedural Background

This opinion concerns two cases arising from family court decisions refusing parents leave under section 47(5) of the Adoption and Children Act 2002 to oppose adoption orders made in respect of their children. Both cases were heard separately but are addressed together due to their similarity and reliance on the recent decision in Re B-S.

Case 1: The first case involves a female child born in July 2011, whose three older siblings had previously been placed under care and placement orders. Care proceedings for the child commenced shortly after her birth, and from September 2011 she was accommodated by the local authority with parental agreement. Following hearings and adjournments, care and placement orders were made in September 2012. The child was placed with prospective adopters in November 2012, and an adoption application was issued in April 2013. The parents applied for leave to oppose the adoption under section 47(5), which was refused by the trial judge, who then made the adoption order. The parents sought permission to appeal, which was granted, and the appeal was heard in September 2013.

Case 2: The second case concerns two children removed from their parents' care in January 2012, with care and placement orders made in May 2012. The children were placed with prospective adopters in September 2012. The parents applied for leave to oppose the adoption orders, which was refused by the trial judge in April 2013, who then made the adoption orders. The parents sought permission to appeal and an extension of time, which was granted, and the appeal was heard in September 2013.

Both appeals were heard following the hand down of the authoritative judgment in Re B-S, which provided updated guidance on the approach to applications for leave to oppose adoption orders under section 47(5).

Legal Issues Presented

1. Whether the trial judges correctly applied the test for granting leave to oppose adoption orders under section 47(5) of the Adoption and Children Act 2002 in light of the recent decision in Re B-S.
2. Whether the parents demonstrated a change in circumstances sufficient to justify reconsideration of leave to oppose.
3. Whether the parents' prospects of success if leave to oppose were granted had sufficient solidity to justify granting leave.
4. Whether, if the appeal against refusal of leave to oppose is allowed, the adoption orders made subsequently should be set aside.
5. What procedural safeguards should be implemented in future cases to avoid premature making of adoption orders following refusal of leave to oppose.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Re B-S (Children) [2013] EWCA Civ 1146	Authoritative guidance on the approach to applications for leave to oppose adoption orders under section 47(5).	Used as the primary legal framework for assessing the appeals and determining the proper test for leave to oppose.
Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535	Earlier guidance on leave to oppose adoption orders and the three-stage process for opposition.	Referenced for comparison and to highlight differences with the approach mandated by Re B-S.
Re C (A Child) [2013] EWCA Civ 431	Consideration of locus and the high threshold for challenging adoption orders.	Confirmed the appellants’ locus and supported the necessity to set aside adoption orders if leave to oppose was wrongly refused.
In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33	Mandated stringent approach to threshold criteria in care and adoption proceedings.	Emphasized the proper standard judges must apply when considering leave to oppose.
Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616	Set out the stringent test for granting leave to oppose adoption orders.	Quoted by the trial judge in assessing the parents’ applications.
Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535 (Coleridge J)	Provided language and reasoning regarding the improbability of parental success.	Adopted by the trial judge as persuasive in evaluating parents’ prospects of success.
Re K (Adoption and Wardship) [1997] 2 FLR 221	Principle that an adoption order made without proper hearing results in fundamental injustice.	Applied to justify setting aside adoption orders made after refusal of leave to oppose was invalidated.
Re S (Ex Parte Orders) [2001] 1 FLR 308	Emphasized the obligation to comply strictly with court orders.	Referenced in relation to the local authority’s failure to comply with court directions.
Hadkinson v Hadkinson [1952] P 285	Obligation to obey court orders unless discharged, even if believed irregular or void.	Reinforced the necessity of strict compliance with interlocutory orders.
Isaacs v Robertson [1985] AC 97	Endorsed Hadkinson principle on obedience to court orders.	Supported the court’s insistence on strict compliance by public bodies.
Re B (A Child) [2013] EWCA Civ 421	Criticism of the practice of making adoption orders immediately after refusing leave to oppose.	Used to recommend procedural changes to avoid premature adoption orders.

Court's Reasoning and Analysis

The court began by acknowledging that the appeals raised issues about the application of the recent Re B-S judgment, which altered the approach to applications for leave to oppose adoption orders under section 47(5). The court emphasized that where judgments under appeal pre-date Re B-S, the focus must be on substance over form, assessing whether the judge engaged with the essence of the test and key questions:

• Has there been a change in circumstances since the adoption order was made?
• If so, do the parents have solid prospects of success if leave to oppose is granted?
• Even if prospects are solid, would the child’s welfare be so adversely affected by an opposed application that leave should be refused?

In Case 1, the trial judge found a sufficient change in circumstances but refused leave based on the discretionary welfare considerations. However, the court found the reasoning unclear as to whether the refusal was due to lack of solid prospects or welfare concerns, necessitating remittal.

In Case 2, the trial judge’s reasoning was described as "very thin" and unclear, with an improper formulation of the test focusing on whether it was "sensible" or "possible" to "unscramble" arrangements—terms more appropriate to the final stage of adoption consideration rather than the preliminary leave stage. The court held that the judge failed to address the key issues properly and remitted the matter for reconsideration.

The court also addressed the procedural issue that adoption orders were made immediately after refusal of leave to oppose, a practice criticized in prior case law. It held that for future cases, judges should postpone making formal adoption orders until the time for appeal against refusal of leave to oppose has expired, to avoid fundamental injustice.

Finally, the court condemned the local authority’s failure to comply with court orders requiring timely disclosure of position statements to parents, emphasizing the absolute obligation to obey court orders and the serious consequences of non-compliance, especially by public bodies.

Holding and Implications

The court’s final decision was to ALLOW BOTH APPEALS. Specifically:

• In Case 1, the appeal was allowed and the matter remitted to the trial judge to determine whether to grant leave to oppose under section 47(5).
• In Case 2, permission to appeal was granted and the appeal allowed, with remittal for reconsideration of leave to oppose.
• The adoption orders made following the refusal of leave to oppose have been invalidated and must be set aside because they were made without a proper hearing in circumstances where the prerequisite refusal of leave was overturned.

The implications are procedural and substantive. Procedurally, the court mandates that formal adoption orders should not be made immediately after refusal of leave to oppose, to allow parents limited time to seek permission to appeal. Substantively, the decision underscores the necessity of judges applying the correct test under Re B-S, ensuring parents’ applications for leave to oppose are properly considered on the merits before adoption orders are finalized.

No new precedent was set beyond the application and clarification of existing principles in Re B-S and related authorities. The decision serves as a strong reminder of the importance of strict compliance with court orders, especially by public authorities involved in family proceedings.