Council wins appeal over order giving mother leave to oppose adoption

The Court of Appeal has allowed a council’s appeal and discharged an order granting permission for a mother to oppose her child’s adoption.

In M (A Child: Leave To Oppose Adoption) [2023] EWCA Civ 404 Lord Justice Peter Jackson concluded it was in “nobody's interests” for the mother to become involved in further proceedings which “could only have one outcome”.

Outlining the relevant legal framework, the Court of Appeal judge said that Section 47(5) of the Adoption and Children Act 2002 ('the Act') provides that where a child has been placed with prospective adopters under a placement order a parent or guardian may not oppose the making of an adoption order without the court's leave.

He added that Section 47(7) states that the court cannot give leave unless it is “satisfied that there has been a change in circumstances since the placement order was made”.

Lord Justice Peter Jackson said the court’s power to grant leave to a parent to oppose the making of an adoption order existed so that cases were not missed where during the passage of time between the placement order and the adoption hearing the situation had changed in such a way that adoption was no longer the appropriate outcome.

The Court of Appeal judge said he would state the essential questions for the court when it decides an application for leave to oppose the making of an adoption order in this way:

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?

Lord Justice Peter Jackson sets out the correct approach to be taken to these questions in paragraphs 8 to 25 of the judgment. Amongst other things, the Court of Appeal judge specifically rejected the approach taken by Mostyn J in Re SA that the change of circumstances must be unexpected or unforeseen.

Lord Justice Peter Jackson also suggested that the essential question for the court at the second stage was this: “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? By asking this question, the court ensures that it focuses firmly on the individual child's welfare in the short, medium and long term with reference to every relevant factor, including the nature and degree of the change that it has found, the parent's prospects of success, and the impact on the child of contested proceedings.”

He added: “In framing the essential question in this way, I do not overlook the fact the parent is seeking leave to oppose the making of this specific adoption order. However, in the great majority of cases, the basis of the proposed opposition is that the child should not be adopted at all. Much less frequently, the opposition may involve an objection to the specific identified adopters, and in those cases, the factors to be taken into account when answering the question will need to be adapted accordingly.”

The case concerned an appeal brought by a county council against a decision to grant leave for a mother to oppose an adoption order. The Children's Guardian supported the appeal, while the mother opposed it.

The child concerned, W, will soon be three years old. At the time of her birth, her mother was 17 and her father was 15.

Both parents had experienced difficult childhoods. The mother was sexually abused by her stepbrother, and had suffered from “long-standing mental ill-health”, with diagnoses of anxiety, depression, panic attacks and post-traumatic stress disorder, said the Court of Appeal judge.

The mother had self-harmed and attempted suicide. The father, who was himself adopted at a young age, had also self-harmed and attempted suicide.

The local authority issued proceedings on the day W was born. On discharge from hospital she was placed in a mother and baby foster placement with her mother. Whilst in the placement, “concerns were raised in respect of a lack of stimulation and communication from the mother towards W and a lack of insight in respect of her basic needs”, said Lord Justice Peter Jackson.

He added that in early October 2020, the mother “chose to leave the mother and baby foster placement in order to concentrate on her own mental health” and returned to live with her mother. W remained in foster care.

Assessments carried out by a forensic psychologist and an independent social worker during care proceedings both recommended therapy and counselling for the mother.

On 24 February and 12 March 2021, a two-day final hearing took place before Her Honour Judge George, in which she made care and placement orders.

HHJ George approved a threshold document that described the mother's mental health difficulties, which prevented her from giving safe care to W when under stress.

Lord Justice Peter Jackson noted it also described the conditions in the home of the grandmother as “not being a safe environment for a baby due to aggressive outbursts from the mother's brother”.

Further, that the relationship between W’s parents was “volatile”. In the father's case, he had “cognitive difficulties, a history of cannabis use that would prevent safe care of a baby, and he had associated with risky persons”.

After the placement order was made, the parents each had a final meeting with W in July 2021. W was matched with prospective adopters, with whom she was placed in September 2021, aged 16 months. In April 2022, the adoption application was issued.

Lord Justice Peter Jackson said that having been served with the adoption application, the mother wrote a letter to the court, “which it treated as an application for leave to oppose”. At a hearing in August 2022, the father made an oral application for leave to oppose.

The hearing took place in November 2022 before Recorder Pemberton.

The mother had prepared a hand-written statement, which, as outlined by Lord Justice Peter Jackson, said that “she loves and could safely care for W, she is no longer associated with the father, and happy in a new relationship. Separation from W had caused her mental health to decline so that she required hospital treatment, but she was now stable and had not self-harmed in nearly a year.”

She wrote that “she had turned up, well-prepared, to nearly every contact with W. Her mother's house was not an unsafe environment, and her brother was not a danger to anyone. She was in regular touch with her CPN [community psychiatric nurse], she had done a 12-week life skills course at the Prince's Trust and was now able to get out of the house a lot more often than before”, Lord Justice Peter Jackson said.

However, the social worker's statement drew attention to the fluctuating history of the mother's mental health” and noted that the identity of the mother's new partner, with whom she hoped to live, was unknown and any risks were unassessed.

Lord Justice Peter Jackson said that as for W, the social worker expressed the opinion that she would be likely to experience regression, confusion and stress as a result of a further move. The social worker said that W was “happy and settled” in the care of her prospective adopters, who were “committed to and attuned to meeting her needs”.

The Court of Appeal judge commended the Recorder for a “notably well-organised ex tempore judgment”, in which the Recorder “rehearsed the procedural history and summarised the positions of the parties. She then addressed the question of change of circumstances”.

In her judgment (para 44), Recorder Pemberton said:

“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.

She said: “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."

Turning to consider the welfare of W, Recorder Pemberton said: “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.

“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 i.e., they are more than fanciful.”

She later continued: “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.

“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.”

Recorder Pemberton granted leave to the mother and refused leave to the father.

Lord Justice Peter Jackson outlined the Recorder’s concluding statements as follows:

“[…] 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.

“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."

Outlining the local authority’s appeal against the decision, Lord Justice Peter Jackson said that Ms Sarah Beasley, on behalf of the county council, challenged both stages of the Recorder's decision.

“As to change of circumstances, she does not contest the five factors listed by the Recorder at para. 44 but argues that insufficient weight was given to the fact that the mother had not undertaken the therapy and courses recommended by the experts in the previous proceedings”, Lord Justice Peter Jackson said.

After considering submissions from both parties, Lord Justice Peter Jackson said: “No one learning about the mother's childhood experiences and her acute difficulties as a young person could fail to admire the distance that she has travelled in the past year. However, the court's decision in respect of her application depended on a clear-eyed assessment of W's welfare.”

He went on to say he considered the decision to grant leave was wrong for three reasons:

1. The Recorder “erred in the way in which she carried forward her conclusion about change of circumstances in her welfare assessment. At para. 59 she said that it followed from her finding of a sufficient change of circumstances at the first stage that the prospects of success were more than merely fanciful. In fact, it did not follow. This was a case where the reasons for the placement order were overwhelming.”

2. The Recorder “did not confront the wall of evidence that established that rehabilitation was plainly not likely to be in W's interests. For example:

- 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.

- 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.

- She recognised that W’s present carers were the only carers W had known and were now her parents. “But once again, this received no analysis, and the decision swiftly followed.”

3. The Recorder “noted the professional evidence of the social worker and the Guardian, set out above, but she did not heed it or explain why she was departing from it. Their opinion was that it was (in the Recorder's words) "plainly and unequivocally" not in W's interests to disturb her position with her new family.”

Concluding the judgment, Lord Justice Peter Jackson said: “Finally, I cannot accept Ms Foulkes' [counsel for the mother’s] argument based on the opinion of the CPN [community psychiatric nurse] that no concerns have been identified regarding the mother's ability to care for a child. That was not a matter on which the CPN was equipped to advise the court and the Recorder rightly did not rely upon it.”

He added: “Nor would I accept the argument that it might be right to allow the mother to oppose, even with poor chances, so that W can know in future that her mother tried everything. As these proceedings show, the mother has tried everything, and it is in nobody's interests for her to become involved in further proceedings which could only have one outcome.”

Lord Justice Peter Jackson allowed the appeal and discharged the order granting permission for the mother to oppose W's adoption.

Lord Justice Holroyde and Lady Justice Macur agreed.

Lord Justice Peter Jackson also addressed a point of practice around transcripts of judgments in placement order proceedings.

He said a decision to approve adoption as a child's care plan was “of huge importance” to the child, to the birth family and to the adoptive family.

“The reasons for the decision will appear in a judgment or in justices' reasons and are likely to be of interest or importance to anyone concerned with the child. They may also be important to the child in later life. There is therefore a duty on the court and on the local authority to ensure that the record is preserved. Considering the amount of care and expense that will have been invested in the proceedings, that seems elementary,” he said.

The Court of Appeal judge added that a further reason for creating a record of the reasons for a placement order was that the order may not be the end of the litigation about the child. “The court may have to consider an application for permission to apply to revoke the order or an application for permission to oppose the making of an adoption order. In this situation, it may be difficult to deal with the application fairly without sight of the judgment that was made at the time of the placement order. In particular, as my Lady, Lady Justice Macur noted in Re S (A Child) [2021] EWCA Civ 605 at [32] a transcript provides the baseline against which to assess whether there has been a change in circumstances.”

Accordingly in his view, Lord Justice Peter Jackson said that when giving reasons for making a placement order, “the court should always order the local authority to obtain a transcript of its judgment, unless it has handed down a written version or made arrangements for there to be an agreed and approved note”. The same applied in cases where a final care order was made, though that was not the focus of this appeal, he added.

Lottie Winson