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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 (18 April 2023) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2023/404.html Cite as: [2023] 4 WLR 36, [2023] EWCA Civ 404, [2023] WLR(D) 179, [2023] 2 FLR 840, [2023] 2 FCR 527 |
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ON APPEAL FROM THE FAMILY COURT AT LEICESTER
Recorder Pemberton
LE48/22
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HOLROYDE
and
LORD JUSTICE PETER JACKSON
____________________
M (A Child: Leave to Oppose Adoption) |
____________________
Rebecca Foulkes and Frankie Shama (instructed by Dawson Cornwell) for
the Respondent Mother
Hearing date : 28 March 2023
____________________
Crown Copyright ©
Lord Justice Peter Jackson:
Overview
1. Has there been a change in circumstances since the placement order was made?
2. If so, taking account of all the circumstances and giving paramount consideration to this child's lifelong welfare, should the court revisit the plan for adoption that it approved when making the placement order?
Transcripts of judgment in placement order proceedings
Section 47(5)
Change of circumstances
"(7) The court cannot give leave under subsection (3) or (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made."
The aim of this provision is clearly to prevent the adoption proceedings from becoming a rerun of the placement order proceedings for no other reason than that the parents continue to oppose adoption. It is a filter to ensure that the structure put in place by the Act is not defeated.
"Obviously the words "a change in circumstances" are not intended to be read literally. As soon as the placement order is made circumstances will change if only by the effluxion of time. What Parliament clearly contemplated was proof of an unexpected change in the basic facts and expectations on which the court relied when it made the placement order."
While in the later case he added:
"Obviously, changes that were clearly either foreseen or which were foreseeable at the time of the original order cannot qualify. Otherwise, the provision would be just another variation power."
"Re P did not however address the question which I have identified namely whether the change in circumstances should be unexpected. In my judgment, in the absence of a specific reference by Parliament to actually foreseen changes (in contrast to section 14(2)(a) of the Matrimonial Proceedings and Property Act 1970) the changes in question must be unexpected and must exclusively attach to the basic facts and expectations which underpinned the initial order."
(1) The language of the sub-section is simple and there is no reason to gloss it.
(2) In Re SA at [14] Mostyn J said that he intended to look at the provisions from first principles, but there was no occasion for him to do that. The issue of whether change must be unexpected, unforeseen or unforeseeable (and the concepts are not the same) did not arise in Re SA or in Tower Hamlets. The law had been recently and authoritatively stated in this court's decisions in Re P and in Re B-S.
(3) The proposition was inspired by an analysis of statutory provisions relating to the court's power to vary maintenance agreements: Re SA at [17-19]. Those provisions are irrelevant to legislation about the adoption of children. They concern changes of circumstance that occur following bargains made between the parties. The Act concerns placement orders imposed by the court for reasons of child welfare. The proper approach to construction will in each case be conditioned by the very different statutory purposes of these unrelated pieces of legislation.
(4) In the absence of a relevant contrary indication, the only conclusion that can reliably be drawn from the fact that a statute does not say whether a change of circumstances is foreseen or unforeseen is that it can be either. There is also a false logic to the argument that, because Parliament has amended one statute to provide that a change of circumstances may include a foreseen change of circumstances, every statute that does not do the same must mean the opposite.
(5) In the context of the Act, there is no reason whatever to raise the bar by burdening parents with the additional obligation of showing that the changes they rely upon were unexpected or, put another way, to deprive them of the opportunity to rely on changes that were foreseen or foreseeable. As Lord Justice Holroyde observed during argument, that would be very unfair. Expectations are not binary, foresight cannot be calibrated, and there may be a number of future possibilities of varying degrees of likelihood. For example, a parent may say at the placement order hearing that he will achieve sobriety or become drug-free, but the court may not be convinced. If, by the time of the adoption proceedings, he is sober, that cannot sensibly be regarded either as unexpected, unforeseen or unforeseeable simply because it was uncertain or because the alternative was more likely. Why should he be worse off for having achieved something the court foresaw as possible but did not consider probable?
(6) To introduce a requirement relating to expectations would be unworkable and add needless complication to what is no more than a threshold test. When it makes a placement order, the court reaches a conclusion about the need for adoption. It cannot state every expectation it may have for the future, and it cannot know when the adoption application will be made. Trying to decide what was or was not expected, foreseen or foreseeable could only distract from the simple question of whether there has been a change between the facts that existed then and the facts that exist now.
The welfare evaluation
"… In deciding how discretion is to be exercised at the second stage the court must have regard to the parent's ultimate prospects of success if leave to oppose is given. In deciding how discretion is to be exercised the child's welfare is paramount; that being so one can well see why the parent's prospects must be more than just fanciful and must be solid – for how otherwise can it be consistent with the child's welfare to allow matters to be reopened?"
"74. In relation to the second question – If there has been a change in circumstances, should leave to oppose be given? – the court will, of course, need to consider all the circumstances. The court will in particular have to consider two inter-related questions: one, the parent's ultimate prospect of success if given leave to oppose; the other, the impact on the child if the parent is, or is not, given leave to oppose, always remembering, of course, that at this stage the child's welfare is paramount. In relation to the evaluation, the weighing and balancing, of these factors we make the following points.
(i) 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.
(ii) 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.
iii) 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.
iv) 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.
v) 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.
vi) 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.
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.""
The present appeal
The present proceedings
"[Mother] has identified that [W] is her protective factor and that she is the reason for recovery. At present no concerns have been identified regarding her ability to care for a child as her mental health is now stable. She has been able to make plans for the future and has aspirations to return to college."
The Recorder's decision
"43. Stage 1 of the test is a question of fact. I need to be satisfied that there is "sufficient" change, not necessarily "significant" change. I have to give proper weight to the fact that two experts' opinions in the previous proceedings, which were accepted by the Court as being reasonable and fair ones, have not been followed, albeit I am also asked by the Mother to take on board that the Mother's treating psychiatrist does not agree with the recommendation for CBT.
44. In terms of assessing, as a fact, whether there has been a change in circumstances, I have to weigh up competing points, but I do not take into account the criticisms made by the Mother about the previous proceedings. I weigh in favour of finding a sufficient change in circumstances, the fact that:
- the Mother has gone almost 12 months without any self-harm. In my view, this level of improvement should not be underestimated;
- she is about to be discharged from the community mental health team;
- she has improved on her anxiety to such an extent that she feels more able to leave the house;
- she has started to live, or shortly will be living, independently; and
- she undertakes voluntary work and is trusted with vulnerable people.
45. In the Mother's representations to me she has presented as somebody who is clear and focused on her ambition as to what she wants and intends for W, if W was to return to her care.
46. Weighing against all the improvements made by the Mother is the plain fact that she has not followed the recommendations of the experts. I have to consider whether this failure, whether alone or along with any other matters, means that she has not demonstrated a sufficient change in circumstances.
47. Putting everything into the balance, as a fact I conclude that Mother has demonstrated a sufficient change so as to satisfy Stage 1. I do not ignore that the experts' recommendations have not been followed, but I have evidence that the Mother has not self-harmed for almost 12 months and that her mental health is sufficiently to enable her to be discharged from the community mental health team. In my judgement, this is a factor which tips the balance in the Mother's favour."
"49. At Stage 2, the Court's paramount concern is W's welfare in the long term. It is the extended Welfare Checklist at section 1(4) of the 2002 Act, which I apply to my decision.
50. The fact that W is already placed with prospective adopters is not, of itself, enough of a reason to refuse leave. I have to take the long-term view and must not be deterred by the prospect of short-term disruption, but I have to be satisfied that the Mother's ultimate prospects of success have solidarity [sic] i.e., they are more than fanciful. In making that assessment, I have to bear in mind all the circumstances – the past and the present state of affairs, and what will or may happen in the future.
51. I remind myself of the ten points which are set out by the Court of Appeal in Re B-S. Looking at all the circumstances, I have to be impressed by the improvement to the Mother's mental health over the last 12 months and that community psychiatric team are about to discharge her from their care. I have to balance this fact against the unknowns, and the fact that the Mother has not followed the recommendations of two experts in previous proceedings, even though I acknowledge that the Mother's treating psychiatrist does not stand with the recommendation of the psychologist that the Mother should have CBT.
52. The evidence, or the viewpoint, of the treating psychiatrist is not before the Court. They are not an expert of the Court and the Court in the previous proceedings accepted the recommendations and accepted the therapeutic work needed, as advised by the psychologist, and as arising from the parenting assessment etc.
53. Further, there is a lack of testing as to how the Mother will cope in independent living away from her support network.
54. There is also the fact that the Mother's new relationship is unknown, it is untested, and no assessment had been undertaken of the relationship. The absence of the Mother's domestic abuse work leaves at large how she will cope and function if that relationship does not turn out to be which is positive for her.
55. In considering the Mother's prospects of success, not of obtaining the return of W to her care, but the prospects of the Mother resisting the Adoption Order, there is a real tension between what is a commendable change in circumstances and what looks to be a clean bill of health in terms of self-harm for a period of almost 12 months, on the one hand, and the fact that the recommended work has not been undertaken, on the other.
56. As to the impact that granting or refusing leave will have, I have to look at what granting leave will look like in real terms for W. The reality in that regard is that when it comes to the balance sheet approach as to what is best for W's welfare, the Court did have, or does have, only three realistic options – adoption, long-term foster care, or the return to one of her parents (there being no kinship carers).
57. It probably goes without saying that for a child of W's age, it would be unlikely that the Court would consider that long-term foster placement was in her best interests e.g., she would risk being stigmatised and here would be a real risk of instability if the placement broke down because her carer's retired or they moved on etc. So this Court, like the previous Court, is likely looking at a situation where there are two stark outcomes.
58. In summary then, the ultimate prospects of the Mother resisting the Adoption Order (i.e., the question as to whether there is a solidarity [sic] to those prospects) has to be looked at alongside the impact that the granting or refusing of leave would have on W.
59. As to the prospects of success, in my judgement in this case it follows from the finding I have made as to sufficient change in circumstances, primarily based on the improvements to the Mother's mental health, that the prospects are more than merely fanciful.
60. As to the impact that the granting of leave would have of W, I take into account that W has been with her prospective adoptive parents for 14 months. While this is not, of itself, sufficient to refuse leave, it is a very real factor to take into account.
61. Further, granting leave will likely introduce further delay. It will be to introduce instability and, invariably, upset to her prospective adoptive parents, which in turn will likely, or could likely, have an impact on W. While W is too young to have an awareness of these proceedings, so far as she is concerned, the people with whom she lives are the only carers she has known and are her parents.
62. As to the impact of refusing leave, put shortly, this will mean that there is no prospect of a return of W to the Mother and W's birth family and contact with them will be limited as per the Local Authority's plan for letterbox contact.
63. I have considered all of the circumstances, the pros and cons of refusal, and the pros and cons of granting leave, and I am not satisfied that W's welfare demands the refusal of leave. In light of W's age, the delay which will be caused by holding a contested hearing will not unduly prejudice or risk the security of that placement.
64. In respect of Mother's application therefore, I do grant her leave to oppose the Adoption Order. What happens after that point may be something very different to that which Mother hopes for, but that is a matter for another day."
The local authority's appeal
Conclusion
(1) She listed a number of matters about the mother's circumstances, but did not then go on to give them the weight that they evidently deserved. She referred briefly to "the unknowns" about the mother's mental health but did not acknowledge that recent improvement had to be set in the context of a history of serious, long-standing and fluctuating conditions that, on the basis of clear professional advice, were not going to resolve without treatment and time. The description of "a clean bill of health in terms of self-harm for a period of almost 12 months" and the mother's own account of the first steps she had been able to take to lead a more independent life could only emphasise the scale of the challenges.
(2) The Recorder noted that the mother's ability to cope in independent living was untested, but gave no apparent weight to that factor. She treated the new relationship and the lack of domestic abuse work, a parenting course or a cookery course in the same way. On the other hand, the life skills course appeared to have been of benefit to the mother as an individual. The inference from this evidence was that it would take time to see whether the mother could establish herself independently before any question could arise of her being capable of taking over the care of a distressed and confused child. At the same time, the Recorder referred to the mother's support network, but the evidence about that was at best mixed. An additional factor was the mother's own evidence, and that of the grandmother, which showed no indication that they understood why W had been removed, but rather tended to blame the local authority. This was a poor prognostic factor, which the Guardian noted, but it was not addressed.
(3) The Recorder rightly identified that there were only two possible outcomes for W, rehabilitation or adoption. That meant that in this case there was no practical difference between opposing adoption and proposing rehabilitation. She was also right to caution herself to take a long-term view and (as I read para. 60) to describe the impact on W of leaving her present carers as a very real factor. She recognised that they are the only carers W has known and are now her parents. But once again, this received no analysis, and the decision swiftly followed. From W's point of view, the court was bound to face the fact that she had only lived with her mother for five very troubled months ending over two years ago, had not seen her for 16 months and had become securely attached to her new family over the course of a year. In that situation it was entirely improbable, to borrow a phrase from Re B-S, that it could ever be in W's interests to remove her from her new family unless she could be reliably moved to a home where she was likely to receive skilled and secure parenting. The evidence that this could be achieved by the mother within W's timescale was simply not there.
Lord Justice Holroyde:
Lady Justice Macur: