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President gives guidance on urgent appeals in adoption cases

Father 'cruelly deceived' by his child’s mother as to paternity loses appeal against adoption order

In C (A Child) [2013] EWCA Civ 431, the President of the Family Division has given guidance to the profession concerning urgent appeals in adoption cases.

The case concerned a child, C was born in 2007. The appellant was in fact, though he did not know it at the time, his father. C's mother was unable to care for him. Just three days after he was born, the local authority obtained an interim care order in relation to C. He was subsequently placed with a foster carer with whom he remained until October 2010. In 2008 a final care order was made, followed by a placement order. In October 2010 he was moved to an interim placement while introductions began with the adopters. In November 2010 he was placed with the adopters. He has been with them ever since. On 20 April 2011 the adopters applied to the Principal Registry for an adoption order under section 46 of the 2002 Act.

Meanwhile, from late 2010 the appellant began to suspect that he might be the father of C. In about May 2011 he became aware of the adoption proceedings. In October 2011 a DNA test confirmed his paternity and he immediately sought permission to defend / oppose the adoption order. On the 7th February 2012 the application was rejected and on the 28th February the appellant filed an appellant's notice. Extensions of time were sought by the appellant's solicitors to fulfil the requirements of the Civil Appeals Office whilst they awaited receipt of the transcript of the judgment and confirmation of public funding. An extension was granted until the 6th April. However, the adoption hearing, of which neither the appellant nor his solicitors had been informed, took place on the 2nd April. Although the court was aware of the pending appeal application, the hearing proceeded and the adoption order was made.

There were further delays in the provision of the transcript and consideration of the appellant's public funding application which was refused. Eventually he was provided with legal representation by the Bar Pro Bono Unit.

The court concluded that the adoption order should stand.

"[R]ecognising the bitter heartache this must cause for a father who, it would seem, was cruelly deceived by the mother of his child," the President said, ".... the reality is that the appellant has no relationship with C, indeed has never even seen him, and that C has now been settled for over two years with the adopters. How can we, how could any judge, take the risk of disturbing that?"

Appeals against a placement order
The President concluded:

"I cannot part from this case without expressing my very great concerns about what it reveals of our system."

He said:

"In every case where an application to the Court of Appeal is made for permission to appeal against the making of a placement order (or of any order consequent upon the making of a placement order) the following steps must be taken (and when I say must I mean must):

i) The appellant's notice must be filed as soon as possible.

ii) Those advising the appellant must give careful thought to including in the appellant's notice any appropriate application for a stay or other interim relief.

iii) If a transcript of the judgment being appealed against is not then available:

a) the appellant's notice must be accompanied by whatever note of the judgment (even if unapproved) is available; and

b) the transcript must be ordered immediately.

iv) When an application for a transcript is received, the court from which the appeal is being brought must deal with the application immediately.

v) Respondents who are parties to any application consequential upon the placement order (eg, an application for an adoption order) must immediately inform both the appellant and the Court of Appeal of:

a) the fact of the making of the application; and

b) the date(s) of any hearing of the application.

"I invite the relevant supervising Lords Justices and the Master of the Rolls to consider a change to the present practice in the Court of Appeal. That practice, properly followed in the present case by those handling the papers in the CAO, is that an application for permission to appeal is normally not put before a Lord Justice until the bundle is complete, in particular until the transcript is available. As a general practice that is, no doubt, entirely appropriate, but there must be cases where the delay that it necessarily imposes cannot be afforded. In the context of family appeals, the present class of case is one; another (not least because of the very strict time limits on such cases which Parliament is shortly to impose) is where the proposed appeal is against an interim case management decision in a care case. In such cases there is a powerful argument for saying that, irrespective of the contents of whatever bundle has been lodged with the CAO, the papers should be put before a Lord Justice as soon as the appellant's notice is received so that immediate directions can be given if appropriate."

Deirdre Fottrell of Coram Chambers (instructed by Creighton & Partners) represented the appellant (the natural father). Alistair G Perkins of 4 Paper Buildings (instructed by the local authority) represented the local authority and the adoptive parents.

The judgment can be read here.