L, Re (Leave To Oppose Making of Adoption Order) (Rev 1) [2013] EWCA Civ 1481

[2013] EWCA Civ 1481

Case No B4/2013/1636

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM SWANSEA CIVIL JUSTICE CENTRE

HIS HONOUR JUDGE PERRY

SA44/12

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 21/11/2013

Before

LORD JUSTICE MOSES LADY JUSTICE BLACK

LADY JUSTICE GLOSTER

RE L (LEAVE TO OPPOSE MAKING OF ADOPTION ORDER)

Hearing Hearing date: 15 th October 2013

Mr Clive Newton QC &Mr David Blake (instructed by Smith Llewelyn Solicitors) for the Appellant

Mr Rhys Jones (instructed by City and County of Swansea Legal Services) for the Respondent

Mr Richard Anelay QC (instructed by Ungoed-Thomas & King Limited) for the 2 nd Respondent

Mr Philip Harris Jenkins (Guardian) (instructed by Hains and Lewis)

Judgment

Black LJ:

[1]This appeal concerns an application by a mother (M) under section 47(5) of the Adoption and Children Act 2002 (“the Act”) for leave to oppose the making of an adoption order in relation to her child, S.

[2]In September 2013, this court handed down judgment in the case of Re B-S

[2013] EWCA Civ 1146

, dealing with a mother’s application under section 47(5) of the Act. Following Re B-S, the court heard two further cases raising similar issues. The judgment dealing with those two cases was handed down on 16 October 2013. Its long title is In the matter of W (a child); In the matter of H (children)

[2013] EWCA Civ 1177

and I will refer to it simply as Re W and H. Although the hearing in the present case took place on 15 October 2013, counsel were given sight of the draft judgment in Re W and H in order that their arguments might take account of it, as they did.

[3]I do not intend to travel again over the ground that was covered so recently in Re B-S and Re W and H. This judgment proceeds upon the basis of the law as it is found in those authorities; nothing that I say is intended to change or develop it. My concern is the application of that law to the facts of the present case which are very unusual.

[4]The matter was listed before us for determination of whether permission to appeal should be granted, with the appeal to follow if we did give permission. The issue of permission was not, in fact, dealt with separately during the hearing. For my part, I would grant permission and this judgment therefore proceeds upon the basis that I am dealing with a substantive appeal.

The order under appeal

[5]S was born in December 2009 and is now nearly 4 years old. M’s appeal is against HHJ Grenville Perry’s refusal on 22 May 2013 to grant her permission to oppose the making of an adoption order in relation to him.

Earlier history

[6]M was only 15 years old when S was born. She is now 19. She had a troubled upbringing. The local authority were involved and there was a care order in relation to her for a period. Her parents’ relationship was extremely volatile and violent and her mother (the maternal grandmother, hereafter MGM) had an alcohol problem.

[7]M and the baby lived with MGM to start with but there were volatile disputes between M and MGM and M had to seek alternative accommodation on several occasions. When S sustained unexplained bruising on his face in September 2010 (which it was alleged illustrated, at the very least, M’s failure to protect S by allowing him to be cared for by MGM, see §§15 and 43 of Judge Grenville Perry’s judgment), care proceedings were begun in relation to him. In his judgment of October 2011, the Recorder who heard the local authority’s application for care and placement orders said of MGM’s home that it was a “chaotic, neglectful environment [where M] struggled in unsatisfactory conditions to do her best to deal with an alcoholic, abusive mother and cope with a child born to her at her age” (Recorder’s judgment §117). Later in the paragraph, he continued:

“That was the life of this child from birth for the first nine months. There was no stability. There was total absence of prioritisation of his needs. There was a failure to protect. That was the reality of his life. 118. I do not seek to apportion blame or criticism. We must record that the mother was 15 years of age at his birth. She herself had been the subject of neglect and abuse. It could be suggested that the protective system of social work intervention had failed her. At the end of the day she was discharged back to that environment. There was no clear sense of external support other than her own mother. But, of course, [M] herself was still seeking to live her own life as a teenager, and that when faced with the prospect of caring for a baby.”

[8]An interim care order was made on 1 October 2010 and remained in place thereafter. However, M and S were not separated at that stage. They were placed together in a foster placement. That did not meet the needs of M or S and in December 2010 they moved to a residential assessment centre where assistance, support and guidance were provided. Their stay there had to be extended because M was not able to provide a satisfactory level of care for S. S then moved with M to another foster placement with considerable supervision and support.

[9]The Recorder concluded that despite the work she had been doing on her parenting, M still lacked some basic parenting skills. At the final hearing in the care proceedings, she sought further time so that she could develop her skills and, with support, care for S. However, having considered all the evidence available, the Recorder concluded that a decision had to be made there and then so that S could have stability and permanence and that it was not in his interests to postpone for further assessment of M. He granted a care order and a placement order.

[10]M had her final contact with S in February 2012 and in March 2012, S was placed with prospective adopters whom I will call Mr and Mrs X. On 13 July 2012, they applied for an adoption order and on 24 August 2012, M filed a notice opposing that.

Developments following the application for an adoption order

[11]In October 2012 it was learned that Mr and Mrs X had separated. This fact, and the events that flowed from it, are what marks this case out from other similar cases. Before the end of the year, M had issued a formal application for leave to oppose the making of an adoption order and Mr and Mrs X had indicated that they intended to divorce but would still be pursuing a joint adoption application, although they were in dispute as to which of them S would live with.

[12]It was intended that the court would determine M’s section 47(5) application on 21 March 2013 but, just before that, Mrs X said that she no longer wished to adopt S. We were told that she does not want to play any further part in his life. Mr X wished to continue with the adoption application on his own. The March hearing was adjourned so that the implications of this could be considered and on 9 April 2013, Mr X filed his amended adoption application. Following a period in the shared care of Mr and Mrs X, S has been living with Mr X since early April 2013

[13]Divorce proceedings were commenced in relation to Mr and Mrs X’s marriage. They have another adopted child (who has been called Y for the purposes of these proceedings). They are in dispute as to which one of them Y should live with. A court will have to determine that for them in due course. A hearing was fixed for the purpose but had to be adjourned because of developments in relation to S.

The section 47(5) proceedings before the judge

[14]The judge commented that there had been a “fuller investigation of the circumstances than is commonly the case in applications of this nature” (§10). However, no evidence was heard and the hearing proceeded by way of submissions.

[15]The judge used the appropriate two stage approach to M’s application. He took as his starting point the threshold document from the care proceedings and the Recorder’s judgment. He found that M had demonstrated that her circumstances had changed since that time. In so doing, he drew upon her statement, the guardian’s analysis and a letter from M’s Young Persons Advisor. He considered that the change was such as to take him to the second stage of the process. In this regard, he looked to see whether M’s prospects of “successfully opposing the overall plan for adoption” had “substance”, “solidity”, ultimately concluding that they did not.

[16]The judge began his consideration of the second stage of the process by commenting that a common feature of such applications as M’s was the significant weight attached to the child having settled in a secure and stable placement with prospective adopters whereas that feature carried much less weight in this case because of the separation of the prospective adopters. There was also no certainty that S would live with Mr and Mrs X’s other child Y, given that Y might live with Mrs X.

[17]However, the local authority opposed M’s application on the basis that she is still not able to meet S’s needs. The judge therefore went on to consider the case in this respect. He reminded himself of some of the elements of the local authority’s parenting assessment of June 2011 which set out shortcomings in M’s ability to care for S, including also concerns about her continuing relationship with MGM and M’s inability to distance herself from her. He said that the extent to which M may now have addressed those shortcomings was unknown.

[18]He examined the evidence produced by M in support of the improvement she had made. In her statement, she described improvement in a number of areas. She said she was living independently in her own flat now rather than in a supported environment with foster carers. She said she was maintaining her home to a high standard, was budgeting appropriately and could cook. This aspect of her evidence was supported by what the guardian had seen when she visited M several times at home. M said she had completed the therapy that had been recommended during the care proceedings and it had helped her to address issues, including her childhood. She said that she had realised MGM’s parenting was not acceptable and “is not a support to me”. She set out the experience she had gained working at a nursery and in youth work and said that she had now got employment in a call centre although she had not been able to start work because of a medical condition.

[19]Against this positive evidence, the judge set out certain concerns arising from the guardian’s enquiries and information provided by the social worker. One concern was that M did not seem to have pursued work and training opportunities consistently, giving as an explanation her health or the stress of the court proceedings. Another concern was her recurrent health problems which were such that she had sought a sick note from her general practitioner to support a claim for disability living allowance. It was argued that her inability to deal with stress and her ill health may give rise to risks to S whose needs she may not then be able to meet reliably. The guardian also alerted the court to her concerns about M’s honesty because of certain things she had failed to mention.

[20]M did not accept that the concerns raised about her progress were valid. She said her medication was working well and she was much better.

[21]The judge was conscious that the evidence had not been tested. His approach was as follows: “So there are matters in issue there, but what one can see is that there are significant issues to be resolved before it could be said with confidence that M can meet S’s needs with ‘good enough’ parenting.” (§40)

[22]The judge also referred to the guardian’s concern that M had not developed an insight into her previous difficulties and to disputed evidence that M was still in contact with MGM who was recognised to be a very negative influence on M’s life and whom M had said she no longer saw. The judge again recognised that nothing was established but took the view that “there is at the very least a suspicion that M may not have broken off all contact with MGM” (§48).

[23]M’s evidence was that she now had an established network of people who could support her including former foster carers, her Young Persons Advisor, and two people who previously taught her as home tutors and whom she now views as “parent-type figures”. The judge quoted from a letter from the Young Persons Advisor when considering the question of change of circumstances to the effect that she had been working with M for approximately a year and had seen vast improvements in her and her lifestyle and found M to have matured into a sensible young woman. The judge had concerns as to whether these people had a genuine understanding as to M’s problems as a parent in the past, without which they may not realise when they need to step in.

[24]Weighing up the various factors towards the end of his full and careful judgment, the judge recognised the possibility that the current adoptive placement would not ultimately succeed and that that would expose S to the unsettling effects of further change but considered that if that were to occur, he would move to an alternative carer whose parenting abilities were at least good enough. He contrasted that with the position if S were to return to M, which could only be on an experimental basis and he thought that in addition to the unsettling experience of a change of carer, S would be exposed to the risk of harm from deficits in M’s care.

[25]Delay was obviously in the judge’s mind, as inevitably it would be. In conjunction with that, two features appear particularly to have influenced his conclusion that M should not be given permission to oppose the adoption.

[26]The first was his pessimism about the chances of her being able to provide an appropriate home for S which he did not think she was likely to be able to do, although he accepted she was desperate to do so. He said: “The difficulty from M’s position is that she cannot currently satisfy the court of her abilities. She cannot realistically say now that as things stand, an assessment of S’s welfare favours his return to her care. The most that she can realistically say is that she should be given another chance to show that it is in his best interests to be brought up by her.” (§58)

[27]He saw no grounds for optimism. When she last looked after S, she was found to be wanting in very basic care skills and although S was now older and no longer a baby, other skills such as supervision would be needed. The judge was not persuaded that the fact that M was older would make her any more able to learn how to be a good enough parent than she was before.

[28]The second feature that influenced the judge particularly was that he did not think that there was any point in allowing M to oppose the adoption “unless she is further assessed as to her parenting abilities” which he thought could only ultimately happen by S being returned to her care on a staged and controlled basis.

The submissions

[29]The arguments advanced on behalf of M concentrated to a significant degree upon the uncertainties following the breakdown of the marriage of Mr and Mrs X. We were told that since the hearing in front of the judge, a further development was that Mr X has a new partner, who is pregnant with his child, although there are no present plans for them to live together. I think it was common ground that there would need to be some further assessment of the new situation by the local authority. It was argued that where the situation was so unsettled and the future so unclear, it was wrong to refuse M permission to oppose Mr X’s adoption application when, by giving her permission, what M could offer could be considered at the final adoption hearing alongside Mr X’s position as part of a holistic, rather than a linear, evaluation. There was going to be delay in settling S’s future in any event, it was submitted; there was also a real possibility that Mr X would not be approved and S would have to move in any event and even if Mr X were approved, S would face the emotional challenge of being brought up in a split family.

[30]Contrary to the judge’s finding, it was submitted, M’s prospects of successfully opposing the making of an adoption order were solid. Mr Newton QC, who represented M with Mr Blake, argued that the judge had taken the wrong approach to what was required, setting the standard too high, referring to M’s inability to “satisfy the court of her abilities” (§58), looking for a “likelihood of the relationship between S and his mother continuing” (§57) and commenting that “there are significant issues to be resolved before it could be said with confidence that M can meet S’s needs with good enough parenting” (§40, my emphasis). It was submitted that although the judge finally referred to “solidity” in his last paragraph, it is clear from what he said earlier that he was using the wrong test. Furthermore, Mr Newton submitted that the judge did not evaluate the evidence about the changes M had made correctly and failed to give it sufficient weight, not least given the greater maturity that has come with M’s age and the support provided by professional people who had spoken on her behalf.

[31]We were told that M had been seeking a direction for further assessment for some time. She would wish to be assessed as to her basic parenting by an independent social worker and to have a further psychological assessment by Dr Leggatt who provided a report for the original care proceedings; these reports could be obtained in about three months. Initially, the reports could be prepared without reintroducing M to S, it was said, and only if that gave a good enough prognosis would the assessment progress further.

[32]Those representing M sought to develop their grounds of appeal in the light of the decision in Re B–S, arguing that the judge had not followed the approach set out in §74 of that authority. They argued that the judge had wrongly assessed the prospects of M having the child restored to her care rather than the prospects of her successfully resisting the making of an adoption order and that he failed to satisfy himself properly that nothing other than adoption would do.

[33]M’s appeal was resisted by the local authority, the guardian and Mr X.

[34]The local authority’s response to M’s submissions was that whatever the state of flux in relation to the X family, there was not sufficient substance to M’s application to justify granting leave to oppose the adoption order and that the judge applied the proper test in relation to this, not requiring too much certainty of success of M’s application and properly incorporating the uncertainty in Mr X’s position into his consideration.

[35]As for the suggestion that the judge had wrongly considered M’s prospects of having S returned to her care rather than her prospects of opposing adoption, the local authority responded that M’s case had always been that adoption was wrong because S should be returned to her rather than that the plan for adoption was simply wrong. There was no failure by the judge to satisfy himself that nothing other than adoption would do because the fact was that adoption was the inevitable consequence of his conclusion that M’s circumstances were not such as to lead to granting her leave to oppose the adoption.

[36]They said M had moved accommodation since the judge considered the matter, already having moved once (as the judge recorded) in the run up to the hearing. They wanted the court to know that she had moved in with her partner and a female friend, both of whom had a recent conviction for assault. They also wanted us to know that the female friend is pregnant and the local authority are involved as her first child was removed from her care. These matters were set out in the local authority’s skeleton argument for this court and have not been the subject of argument, still less evidence.

[37]The guardian took a similar stance to that of the local authority, based, we were told, on her own analysis of M’s claims to have changed to the point that she was able to look after S; she filed a lengthy report dated 19 March 2013 dealing with her investigations and setting out her conclusion that the most serious concerns that were evident during the care proceedings still persisted. The additional submission was made on her behalf that the change of circumstances in the X family was not relevant to the judge’s determination. It was relevant only, it was argued, to the question at the final adoption hearing of whether or not Mr X was suitable as an adopter.

[38]Counsel for Mr X, Mr Anelay QC, similarly submitted that there were compelling and cogent welfare reasons for the judge’s refusal of leave to oppose the adoption order. He submitted that S is thriving in Mr X’s care. He argued that if M were to be given leave to oppose the adoption by Mr X, an assessment would need to take place of M with S and this would be very confusing and disruptive for the child.

Discussion

[39]No one took issue with the judge’s conclusion that there was a sufficient change in circumstances to take him to stage two of the two stage section 47 process. It is possible to concentrate entirely, therefore, on the second stage.

[40]In setting out the essence of Re B-S in Re W and H, the President said this of the second stage: “In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity.” (§20) and “In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child)

[2013] EWCA Civ 431

.” (§21)

[41]Looking at Judge Grenville Perry’s judgment as a whole and focussing on substance rather than form (see Re W and H §16), I am not persuaded that the judge set himself the wrong task. He looked for substance or solidity in M’s prospects of successfully opposing the adoption order in favour of Mr X. I do not think that he focussed inappropriately on her prospects of ultimately having her child restored to her care rather than on her prospects of successfully resisting the adoption order as §74(i) of Re B-S requires. The way in which he approached matters was conditioned by the way in which M’s case was put. It was principally a positive case, based upon her now being able to care for S herself. She was not arguing that even if she was not able to look after S, he should not be adopted but should, for example, be placed with a relative or fostered long term. She sought to rely on the uncertainty in relation to the position of the X family to support her case but she did not focus upon criticising the care that Mr X could provide for S.

[42]However, in my view Mr Newton is right in submitting that, in considering the strength of M’s prospects, the judge failed to take appropriate account of the situation with regard to Mr and Mrs X.

[43]The problem was not that the judge did not recognise that Mr and Mrs X’s separation was a significant feature; he clearly did. He acknowledged that because of it, “much less weight” could be attached to the child being settled with prospective adopters than would normally be the case. He observed (§32) that one could not overlook that S’s “stability has been disturbed” and, in saying this, he probably had in mind not only S’s early upbringing with M but also the impact upon S of the separation of the adopters. He acknowledged that depending on the outcome of the residence proceedings between Mr and Mrs X, there was a prospect that S would not live with Y. He even went so far as to contemplate the possibility that the adoptive placement with Mr X may not ultimately succeed (§56).

[44]It was in incorporating these acknowledged features into his evaluation of M’s prospects of successfully opposing the adoption that I consider the judge went wrong. It is to be noted in this regard that he was hearing the case before the judgment in Re G (A Child)

[2013] EWCA Civ 965

was available so he was without the assistance that that would have offered.

[45]When a judge considers a parent’s prospects of success for the purposes of section 47(5), he is doing the best he can to forecast what decision the judge hearing the adoption application is going to make, having the child’s welfare throughout his life as his paramount consideration. What is ultimately going to be relevant to the decision whether to grant the adoption order or not must therefore also be material at the leave stage.

[46]The judge deciding the adoption application would need to approach the hearing bearing in mind what McFarlane LJ said in Re G (supra)about the dangers of a linear approach to decision making in child care cases. He would have to make “a global, holistic evaluation of each of the options available for the child’s future upbringing” (Re G §50) before determining what would serve the child’s welfare throughout his life. In the present case, the strengths and the weaknesses of M’s situation would have to be considered in isolation, as would the strengths and weaknesses of Mr X’s situation, and, as McFarlane LJ said in §54 of Re G, each option would have to be “compared, side by side, against the competing option”. This exercise would have to be carried out remembering that adoption is only to be imposed where that is necessary, as the Supreme Court underlined in Re B

[2013] UKSC 33

[47]An option that might appear not to be in a child’s interests in one context might, by this process of global, holistic evaluation, carry the day in another context. Here, M’s case that she would be able to care for S, or alternatively that there should at least be a further assessment of her ability to do so, would not fall for consideration, as is usually the case, alongside a settled and stable adoptive placement which had been going on for some time. The competing option would involve an adoptive household which has been subjected to protracted disruption and uncertainty which is yet to be completely resolved. First, there was the separation of the adopters, then the change from a joint adoption to an adoption by Mr X on his own, with Mrs X withdrawing from S’s life completely. Mr X’s new relationship and the anticipated baby changed things again and there still remains the outstanding dispute over where Y will live. Even once that is resolved, it will no doubt take some time for the X family as a whole to learn to live with the consequences of these extensive changes. That there is uncertainty in both options, not just in M’s situation, may turn out to be a very important feature in determining what will serve S’s welfare throughout his life.

[48]It seems to me that where the judge went wrong was in failing to consider whether the uncertainty in the adoptive household might improve M’s prospects of success and to make allowance for that. Putting it another way, what I think was missing was a consideration of M’s present position in the context of the disruption and uncertainty in the X household.

[49]Although he went as far as contemplating that the adoptive placement with Mr X would not ultimately succeed, the judge dealt with that possibility by making the assumption that, in those circumstances, S would be moved by the local authority to carers whose parenting abilities were at least good enough and probably better than good enough (§56) and that, although there may be delay whilst they were identified, S would be cared for meanwhile “either by approved foster carers or by potential adopters known to have adequate parenting skills” (§59). Even if not entirely apposite to the legal situation arising here, one question that might at least have generated the right sort of consideration is whether, in the event that Mr X’s adoption application were not ultimately to succeed, as the judge contemplated was possible, it may in fact be appropriate to pursue further the possibility of a placement with M rather than S being placed forthwith by the local authority with an alternative adoptive family as the judge assumed would happen.

[50]I do not think the judge can be criticised for being cautious about a return to M on the evidence as it stood. He said that it would be “experimental” and did not think it likely to succeed (§57). However, he appears to have been looking for quite a high degree of present certainty in this regard, speaking for instance of M being unable currently to “satisfy” the court of her abilities (§58). The degree to which a court needs to be confident about a parent’s abilities at the section 47(5) stage is likely to vary, in my view, depending on the other circumstances of the case and I say a little more about this in the final paragraph of this judgment. Where the other option under consideration also has significant uncertainties, a lesser degree of confidence may sometimes justify the granting of leave and it seems to me that that was so here. In such circumstances, it may also be that greater allowance might be appropriate for the fact that there has not been an opportunity for the evidence to be tested (both that in favour of M and that which may undermine her case).

[51]The judge proceeded upon the basis that it would not be possible to assess M’s ability without a return of S to her care, albeit on a staged and controlled basis (§60). I do not agree that that was inevitable here as I would accept Mr Newton’s submission that there could be a staged approach to assessment with a re-introduction of M to S only taking place if the prognosis looked sufficiently hopeful. In this way, delay could also be kept to a minimum until there was enough optimism to justify extending the wait.

[52]In many cases, question marks about a mother’s abilities such as those identified by the judge here might well be enough to rob the mother’s case of solidity. But in this particular case, given the circumstances of the X household, I do not think that they did have that effect. Putting it rather simplistically, the greater the uncertainty and the risk of delay and of moves for S in connection with the present adoptive placement, the stronger the case for looking again at a placement with M and the more it might be appropriate to accommodate the delay and disruption involved in assessing her, and also the imperfections in what she could offer. One has to bear in mind the disputes around her evidence and the doubts raised about it, but there were undoubtedly potentially positive features to her case. Looked at as a whole, in my judgment, the circumstances were such here that the judge should have concluded, that M did have solid prospects of success if given leave.

[53]That does not mean that leave would necessarily follow. I return to §74 of Re B-S which sets out the two inter-related issues involved in determining, once a change of circumstances has been established, whether leave to oppose should be given. The first of these issues is the one with which I have just dealt: the parent’s ultimate prospects if given leave to oppose. The second is “the impact on the child if the parent is, or is not, given leave to oppose”. §74 iii) says:

“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.”

The President explained this a little further in Re W and H:

“§22. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption.”

[55]I am not going to speculate on the sort of circumstances that might lead to a decision at this late stage in the reasoning process that leave to oppose should be refused. It is sufficient to say that this is not a case in which such circumstances are present. There is already uncertainty and delay. Fears as to the disruption that may be caused by further assessment of M can be catered for by a staged approach, as I have said, although I would not wish to tie the hands of the judge giving directions in preparation for the opposed adoption hearing, as will have to be done with expedition once we return this case to the county court. At what stage in the assessment process the hearing of the opposed adoption application would take place would depend very much on how the evidence develops.

[56]It will have become apparent that it is my view that not only should the appeal against Judge Grenville Perry’s order be allowed but also we should grant M leave to oppose the making of the adoption order. I do not think there was any strenuous argument against this in the event that we did not uphold the judge as all parties other than M wished us to do. Accordingly I would allow the appeal and grant M leave under section 47(5). I would require the parties to request an urgent directions hearing in the county court so that questions of assessment and evidence can be considered and any other required directions given.

[57]Nothing that I have said in this judgment should be taken as any indication of a view of the ultimate strengths and weaknesses of Mr X’s application or (apart from the preliminary determination necessary for section 47) of M’s case. The evidence is not yet complete either in relation to Mr X’s circumstances or M’s, and none of it has yet been tested.

[58]I would like to add a final few words of more general application than just this case. I am very conscious of the difficulties inherent in applications under section 47(5). The relationships and hopes of not just one family but two are imperilled and the material upon which the decision has to be taken is, of necessity, often far from complete and not infrequently has not been tested in a hearing with oral evidence. I have not intended in this judgment to be prescriptive as to the way in which such applications are handled by the expert family judges who resolve them with skill and sensitivity. Each case depends upon its own facts and the circumstances of individual cases vary infinitely. Where, for instance, a child has been placed with adopters for a protracted period, is well settled, and remembers nothing else, a court may well take the view that there has to be a degree of confidence about the parent’s ability to provide a suitable home for the child before it can even contemplate assessing the parent’s prospects as solid. And the cases show that the overall circumstances of the case may be such that the court may decide not to grant leave even where there is some confidence in the parent. Re B-S was an example of a mother who had achieved “an astonishing change of circumstances” (Re B-S, §3) but did not get leave to oppose adoption because of the situation of the children (ibid, §102). Re C(A Child)

[2013] EWCA Civ 431

was a case of a father who could have provided for the child’s physical needs but failed to get leave where the child (who was by then 4 ½ years old) had been settled with the adopters for over 2 years and had no relationship at all with him. At the other end of the spectrum, there will be cases in which the evident deficiencies in the parent’s case are such that, notwithstanding the existence of uncertainty or other issues in relation to the adoptive placement, the parent’s case is not solid enough to justify the grant of leave to oppose.

Gloster LJ:

[59]I agree with both judgments.

Moses LJ :

[60]I agree with the judgment of Black LJ and with her reasons. I only add words of my own to draw attention to the important contrast between this case concerning the application for leave to appeal in respect of a refusal to grant a mother permission to oppose the making of an adoption order in respect of S and a similar application this court also heard in respect of a child, L, in which Black LJ has given another judgment (ReD (A Child) B4/2013/1939). Both cases concern mothers who, at the time of the birth of their children, were very young.

[61]Both cases demonstrate the task facing both mothers who are compelled, in the interests of the children, to establish that they have grown up to such an extent that the change from those circumstances which led to their separation from their children has been so substantial and telling that their prospects of success in opposing the making of the adoption order ‘have solidity’.

[62]This task seems to me to impose what, in other circumstances would be regarded as wholly unrealistic expectations as to the level of maturity to be reached by young women who are still under 21. Both mothers had undoubtedly made praiseworthy attempts to leave their previously difficult lives behind, but face comments made about behaviour which would be unremarkable in most of their contemporaries. At that young age there is bound to be scope for further improvement; after all, in criminal cases, courts are enjoined to have regard, when sentencing, to the rapid ability of the young to change their ways. Yet the court in these cases is required to make a judgment at the time section 47(5) provides and look into a crystal ball so as to assess the best interests of the child for the rest of her life. It will usually only be able to predict on the basis of the past and current evidence, recognising that the mother has grown in maturity but, sadly in many cases, not enough.

[63]The distinction between this case and Re D seems to me to lie particularly in the circumstances of the proposed adopter in the instant case, X. S’s mother is entitled, as I have agreed, to take advantage of that circumstance, to obtain a further assessment of her progress in the context of the proposed adopter’s own situation. The mother in Re D has no such advantage. This difference seems to me to afford a powerful demonstration of the need to consider the relative strengths and weaknesses of the mother’s application in the light of the circumstances of the proposed adopter, all of which must be considered to determine where the best interests of the child will lie. That which appeared to be too insubstantial a case to the judge becomes solid when considering the situation, not of the mother but of the proposed adopter X.