Challenging adoption order using human rights
2 October 2013
The recently released statistics from the Department for Education showing an increase of 15% in the adoption of looked after children in the last year further highlights the government’s preferred strategy for ensuring the welfare of children in care.
In my recent post, I considered the main thrust of the decision of the Court of Appeal in Re B-S which concerned the rigour which was expected of evidence, hearings and Judgments before a Placement Order was made.
However, the Court also dealt with the issue which had concerned Lord Justice McFarlane when he gave permission to appeal namely, where a Court has already made an order that a child may be placed for adoption and that has happened and the prospective adopter has applied for an Adoption Order, in what circumstances can a parent seek to stop it going ahead?
In contrast to the invasive surgery the Court of Appeal has undertaken on the human rights of Placement Orders, their approach to challenges to Adoption Orders has been more subtle. The Court upheld much (but not all) of the previous case law but added, “we fear it may on occasions have been applied too narrowly and indeed too harshly.”
A Placement Order gives permission to an adoption agency to place a child with prospective adopters. In the case of a non consensual adoption, the court has to determine whether the welfare of the child requires that the consent of the parents should be dispensed with.
There are certain circumstances in which a parent can apply to revoke a placement order but this comes to an end when the child is placed for adoption. Thereafter there is no opportunity for a parent to challenge the process until an application for an adoption order is issued.
A parent can oppose the making of an adoption order but to do so requires the leave of the Court and the Adoption and Children Act 2002 specifies that the Court cannot give such leave unless it is satisfied that there has been a change of circumstances since the making of the Placement Order.
It is also settled that once such leave is given the Court effectively have to decide afresh whether to dispense with parental consent to adoption in the light of the circumstances that then exist.
A decision by the Court to give leave to a parent is therefore profound. As the Court of Appeal said in Re B-S,
“not merely is the parent able to oppose the making of an adoption order, but the parent, notwithstanding the making of the earlier placement order, is entitled to have the question of whether parental consent should be dispensed with considered afresh and, crucially, considered in the light of current circumstances (which may … be astonishingly different from those when the placement order was made).”
In a system which loves reducing matters to such, the case law is clear that there is a two-stage test:
(1) has there been a change of circumstances? if so
(2) should leave to apply be given (in answering this question the child’s welfare is paramount)?
On the first question, the Court of Appeal determined that the law is correctly set out by Wall LJ in Re P (Adoption: Leave Provisions)  EWCA Civ 616;  2 FLR 1069. The judgment of the court (Thorpe and Wall LJJ and Hedley J) was given by Wall LJ who said:
“The change in circumstances since the placement order was made must … be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of the judicial discretion to permit the parents to defend the adoption proceedings.”
When considering the second test, the Court of Appeal determined that aspects of two Court of Appeal Judgments on section 47 (5) [which concern the necessity to obtain the Court’s leave to oppose the making of an Adoption Order] should no longer be followed (Para 68):
(1) Thorpe LJ’s phrase, “exceptionally rare circumstances” in Re W (Adoption; Set aside and leave to Oppose)  EWCA Civ 1535;  1 FLR 2153
(2) the use by the President in Re C (A Child)  EWCA Civ 1431 of the word “stringent” to describe the test.
To that extent they have removed a gloss on the words of the statute.
In the light of current thinking, the Court of appeal in Re B-S prefer to talk about an exercise of judicial evaluation when considering the second stage, rather than discretion. The Court reiterated that two inter-related questions were apt in particular: as to the parent’s ultimate prospect of success of resisting the making of an adoption order (as opposed to having the child to return to live with the parent) and the impact on the child if the parent was/was not granted leave to oppose.
The Court went on to give guidance in such cases including a reminder that the Judge must keep at the forefront of his/her mind the teaching of the Supreme Court in re B (A Child) (Care Proceedings: Threshold Criteria)  UKSC 33,  1 WLR 1911 that adoption is only permissible, “if nothing else will do.” As with a Placement Order, the CA recommends drawing up a judicial balance sheet of the positives and negatives for the purposes of evaluation. The Court is enjoined by the statute to have regard to the welfare of the child throughout his life. As such, the Judge must be careful not to attach undue weight to the short term consequences for the child if leave to oppose is given. The mere fact that the child will, inevitably, have already been placed with adopters cannot be determinative.
This does represent a nudge to the Courts to think seriously about the possibility of granting more parents leave to oppose adoption orders. These are already very unhappy hearings and tend to cause profound distress to the prospective adopter with whom the child has been placed. They are not assisted by the fact that the Legal Aid Authority does not generally provide public finding for such applications and the parents are usually before the court unrepresented.
The most excruciating of these cases are usually not the ones where a parent or parents have transformed their lives for the better since the Placement Oder was made but where a mother has concealed the birth of the child and the proceedings from a father who only comes to know of the case after the Placement Order is made. Given the likelihood that such fathers – if found – are very likely now to receive leave to oppose adoption orders (and may very well succeed ultimately), this Court of Appeal Judgment should give greater impetus and urgency to efforts to make sure that all parents are properly traced and given notice of proceedings before any Placement order is made.
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