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Re B (Child) [2017] EWCA Civ 264

Appeal by mother against refusal to grant permission to oppose the adoption of her child.

Brief background
This is an appeal by B's mother ('Mother') against Bodey J's refusal to grant her permission to oppose B's adoption. B had not lived with Mother since June 2013, when the Mother agreed to section 20 accommodation. Moylan J later granted care and placement orders in December 2014. The key issue was Mother's mental health (she had been diagnosed as having a borderline personality disorder) and the impact of this upon her ability to care for B. Expert psychiatric and psychological evidence was heard and accepted by Moylan J. The salient points of the history are set out at paragraph 7. In June 2015 Mother unsuccessfully sought permission to appeal Moylan J's order. In February 2015, contact between B and Mother ceased, and in July 2015 B was placed with prospective adopters, with whom she has lived ever since. Mother then became pregnant for a second time. She moved to Republic of Ireland and cares for her daughter with the assistance of her parents. In October 2015 the prospective adopters applied for an adoption order, following which Mother indicated that she opposed the adoption. This was treated as an application for leave to oppose and was allocated to be heard Bodey J.

Leave to oppose hearing: Bodey J
Mother argued that there had been material changes in circumstances, focussing on the fact that she had taken up residence in Ireland and her baby, C, had been with her since birth and was thriving and happy. She said she had voluntarily agreed to cooperate with the child protection authorities in Ireland and that her mental health had been assessed by the health services there and she had been found to have no mental health issues.

The LA filed a statement in response to the Mother's statement, challenging the existence of a sufficient change in circumstances. The statement included details about the situation in Ireland, including that concerns had heightened and that a further child protection conference was to take place on 19 April 2016. The LA reported that the Irish social worker was of the view that there had been superficial engagement, that concerns for C remained significant, and that no real progress or significant change had occurred. Two letters from TUSLA (the Irish child and family agency) were relied upon by the LA at the hearing. The first letter set out that the Irish social worker had "concerns in relation to [the mother's] ability to provide adequate consistent care for C remain." The second letter was much fuller and was sent in response to a request from the English social worker for the details of why concerns continued. The detail of that letter is outlined at paragraph 22.

After reviewing the evidence placed before him in support of and in opposition to Mother's application for leave, Bodey J did not accept that there had been a change of circumstances of the required type. He took the view that the changes did not go to the underlying reasons that care and placement orders were made in relation to B (as set out in Moylan J's judgment).  He also considered, in the event he was wrong about the first stage, that Mother's prospects of successfully opposing the adoption were negligible.

The proposed appeal: substance
Mother complained that she did not see the two letters in advance of the hearing in May, that she did not have time to discuss the letters with her barrister (and that Bodey J should have allowed time for this to happen), and that she challenged the accuracy of the letters. Mother's counsel had instructions sufficient to relay to the judge that Mother did not accept that there were any material problems in Ireland. Mother's Counsel also asked Bodey J to consider postponing the decision about permission to oppose the adoption for further clarification from Ireland in so far as there was 'insufficient clarity' as to the position there. Mother argued that Bodey J should have adjourned to another date when the full facts could be explored.

Black LJ found that letters from TUSLA were central to the appeal. Her Ladyship found that prior directions given by Bodey J, in relation to the production of documentation from the Irish social services, had not been complied with. After giving anxious consideration to the way in which the question of change of circumstances was handled by Bodey J, Black LJ accepted there was 'force' in Mother's complaint about the way the information from Ireland was dealt with, given that it was potentially of central importance in evaluating the change that Mother said had occurred. On balance, and in view of the importance that the information from TUSLA inevitably had in the evaluation of Mother's case as to change, Black J found that Bodey J should have adjourned the hearing to another date so as to enable Mother's challenges to the TUSLA letters to be explored further.

However, although Mother's challenge to the handling of the Irish material was accepted, Bodey J took the precaution of going on to consider the next stage of the process, in case he was wrong about the question of change of circumstances. The Court of Appeal concluded that it could not be said Bodey J had erred in the evaluative exercise involved at that stage by refusing Mother leave to oppose adoption. Bodey J's careful consideration of the law left no doubt that he had the proper principles in mind when he came to address the second stage of the section 47(5) process. Bodey J concluded that Mother's prospects of successfully opposing were 'negligible' and that it was 'hugely unlikely that she would succeed in opposing the adoption and persuading the court to transfer care of B to herself after all this time.'

Appeal outcome
Mother was granted an extension of time to lodge the appeal, permission to appeal was granted, but the appeal was dismissed. Black LJ concluded: 

"An adverse conclusion at the second stage leads inevitably to the refusal of leave to oppose adoption, so Bodey J's order is not affected by any defects in the way in which his conclusion as to the change of circumstances was reached." (para 58)

Practice
Black LJ took the opportunity to remind practitioners, and litigants, that when an oral hearing takes place in relation to an application for permission to appeal the judge will often give a judgment and that parties involved in the appeal need to ensure that they have sight of that judgment, because it will almost certainly assist considerably in indicating the likely focus of any subsequent hearing in relation to the appeal. Further, Her Ladyship notes that CPR Practice Direction 52C dictates that the core bundle for the appeal hearing must contain a transcript of the judgment giving permission to appeal, where permission has been granted.

Summary by Emily Ward, barrister, Broadway House Chambers
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Case No: B4/2016/3651
Neutral Citation Number:
[2017] EWCA Civ 264

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NEWCASTLE-UPON-TYNE CONBINED COURT CENTRE
MR JUSTICE BODEY
NE196/15

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 12/04/2017

Before:

LADY JUSTICE BLACK

and
THE SENIOR PRESIDENT OF TRIBUNALS
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RE B (CHILD)
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Appellant appeared in person
Miss Katherine Wood
(instructed by Northumberland County Council Legal Services) for the Respondent

Hearing date: 28th March 2017
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Judgment
Lady Justice Black:
1. This case concerns a 4 year old girl, B. She has been the subject of litigation for some time, the last order in relation to her having been made by Bodey J on 19 May 2016 when B's mother's application for leave to oppose her adoption was dismissed. The mother is seeking to appeal against that decision.

Preliminary matter

2. When the case came before me for consideration of whether permission to appeal should be granted, I concluded that the position was somewhat unclear and therefore made provision for the matter to be listed in front of me and another judge on the basis that the question of permission to appeal would be considered in the light of submissions from all parties and, in the event that permission was given, the full appeal would be heard at the same time. I gave directions to this effect on 15 December 2016 and, at the same time, I gave a judgment setting out the matters that concerned me in relation to Bodey J's decision, in order that the skeleton arguments prepared for the permission to appeal/appeal hearing could address them. It was disappointing to find that the parties do not seem to have taken steps to obtain a copy of my judgment in preparation for the appeal hearing, with the result that it was only during the hearing that significant issues that I had raised in it received attention. 

3. In order to help others in the same situation, it might be worth saying a little more on this topic. When an oral hearing takes place in relation to an application for permission to appeal, as the order that I made on 15 December 2016 showed had happened here, the judge will often give a judgment. Parties involved in the appeal need to ensure that they have sight of that judgment because it will almost certainly assist considerably in indicating the likely focus of any subsequent hearing in relation to the appeal. Judgments given in relation to questions of permission to appeal are routinely transcribed, so copies should be obtainable without difficulty. 

4. CPR Practice Direction 52C dictates that the core bundle for the appeal hearing must contain a transcript of the judgment giving permission to appeal, where permission has been granted. This does not, strictly speaking, cover the instant case as permission was stood over to be determined at the same time as the appeal. However, there is, in fact, just as much need for all parties and the court to have access to the judgment given in these circumstances as in a case in which permission to appeal has been granted. Although the appeal bundle is normally the responsibility of the appellant, in this case, it was the local authority which kindly (and pragmatically) assumed responsibility for preparing it because, as not infrequently happens these days, the mother is acting in person. We are grateful for their efforts in this regard and I should make clear that I acknowledge that the Practice Direction would not have alerted them to the need to obtain a transcript of my judgment when putting the bundle together. I hope, however, that in future the need to do so would be appreciated.

The background up to and including Moylan J's decision in 2014

5. B has not lived with the mother since June 2013 when the mother agreed to her being accommodated by the local authority under section 20 of the Children Act 1989. Care proceedings were begun by the local authority in March 2014 and the local authority's applications for care and placement orders came before Moylan J in December 2014. Quite a lot of detail about the mother and the background history is to be found in his judgment. It is not necessary to set it all out here and I will confine myself to identifying the central issues that arose and the important elements of the judgment that Moylan J gave explaining why it was that he had decided that both the local authority's applications should be granted.

6. Moylan J identified the key issues in §6 of his judgment as follows:

"…in my view the key issues are the mother's mental health, as she has been diagnosed as having a borderline personality disorder, and the impact this will have on her ability to care for B. Are the risks of harm to B such as to justify a care order and a placement order, or, as the mother proposes, can she care for B whilst living with her parents? Can they support her and can they sufficiently protect B from any such risks of harm as may be established by the evidence?"

7. Salient points from the history set out by Moylan J include the following:

i) The mother was adopted when she was six years old, having been physically and emotionally abused whilst in the care of her birth parents.

ii) She had a long history of involvement with psychiatric services, having first been referred to Child and Adolescent Mental Health Services in 2001 with a complex range of difficulties. She had problems at school in 2006 and 2007 and was harming herself.

iii) She was getting into trouble with the police and between 2007 and 2010 was arrested 21 times for a variety of matters.

iv) The history recounted by Moylan J of 2007 to 2011 is of considerable disturbance, including an episode when she was found in the River Tyne saying she was going to kill herself, a period when she ran away from home and slept rough, and an episode during a time of low mood when she said she had taken 24 paracetamol.

v) It was in 2012 that she formed a relationship with B's father and conceived B, the relationship with the father having ended before B was born.

vi) In general, to begin with the mother seems to have cared appropriately for B although some concerns were noted, such as missing medical appointments and being without sterilising tablets because she had run out of money.

vii) In May 2013, however, significant problems developed. She seems to have been receiving support from a friend called SS upon whom she came to rely before realising, she said, that SS had significant mental health problems of her own. The mother was low, and deliberately injured herself by cutting her arm.

viii) Early in June 2013, SS took an overdose. She, SS, reported that she was concerned about the mother who was behaving erratically. The mother herself reported a number of psychological symptoms and, on 5 June 2013, she agreed to B being accommodated by the local authority.

ix) The mother continued to make threats to her own life and to cut herself and in September 2013, the local authority decided that returning B to her care would not be appropriate. A parenting assessment of the mother completed in early 2014 also concluded that she could not safely care for B.

8. Moylan J had evidence from Dr Tacchi, a consultant psychiatrist, and Dr Cawthorne, a consultant clinical psychologist. Both had assessed the mother. Both were experienced in their field and offered considerable advice about the mother's functioning, how it would affect B, and whether change could be anticipated in the future. Moylan J found their evidence convincing. He accepted, as a result, that the mother had Borderline Personality Disorder, and found that B was at significant risk of emotional harm if she were to be cared for by the mother, even if the mother were living with her parents. The level and nature of the risk of neglectful and emotionally damaging parenting was, he concluded, such as clearly to justify care and placement orders.

9. In arriving at his conclusion, Moylan J looked at the possibility of things changing in the foreseeable future. He found that the mother neither recognised nor accepted the extent of her problems and that, because she did not accept that she needed it, she was not in a position to benefit from psychotherapy as things stood. He said that "[w]ithout intervention through psychotherapy, the mother's mental health will remain the same. It is potentially a life long condition and although, absent treatment, the mother might mature out of the disorder it is impossible to give a timescale."

10. Moylan J considered whether the support of the maternal grandparents would assist materially. He found them "perplexing witnesses" who were unable or unwilling to recognise the true extent of the mother's mental health difficulties and could not provide her with the support that was required to enable B to be cared for by her in a way that would protect B from emotional harm. He agreed with Dr Tacchi that the problems that appeared in the past would be likely to appear again if the mother were to live with her parents with B.

Following Moylan J's judgment

11. The mother tried unsuccessfully to appeal against Moylan J's decision, permission being refused in June 2015.

12. In February 2015, the contact that the mother had been having with B came to an end and, in July 2015, B was placed with adopters with whom she has been living ever since. They applied for an adoption order in October 2015 and in due course the mother indicated that she opposed the adoption; this was treated as an application for leave to oppose adoption, and ultimately came before Bodey J.

13. The mother had become pregnant again. She was informed by the local authority in July 2015 that they intended to issue care proceedings when the child was born. Three weeks later, with the support of her parents, she moved to the Republic of Ireland where she continues to live. In September 2015, she had another daughter, C. She cares for C herself with the help and support of her parents. The actions of the local social services in Ireland are central to this appeal and I will look at them separately.

14. Directions were given in preparation for the hearing of the application for leave to oppose adoption. It was originally listed to be heard in April 2016 and there was a direction that "a representative from the social work team for the child with knowledge of the case" attend the hearing (order of Her Honour Judge Hudson of 17 March 2016). In April 2016, Bodey J granted an application by the mother for an adjournment to enable her to get legal representation. He also granted leave for the local authority to "serve documentation from an employee of [Irish] Child Protection and Welfare Team addressing the circumstances of the mother's second child".

15. When the case came back before Bodey J in May 2016, the mother was represented by counsel but was not in attendance herself, remaining in Ireland, she says because of child care problems. Her father attended and was present throughout with the agreement of the parties.

16. The parties were in agreement as to the law that the judge had to apply to the mother's application for leave to oppose the adoption, as to which section 47 of the Children Act 1989 applied. I will look in more detail at this aspect of the case later. In essence, the court approaches an application for leave to oppose in two stages. First, it must determine whether there has been a change of circumstances of a type that opens the door to the second stage of the process, which is the wider consideration by the court of all the circumstances of the case.

17. Bodey J rightly took Moylan J's judgment as the touchstone against which he had to evaluate the mother's argument that there had been a change of circumstances. The mother had filed a statement and a skeleton argument in preparation for the April 2016 hearing and her counsel filed a skeleton argument for the May 2016 hearing. In her statement, the mother continued to dispute the evidence which had led to the care and placement orders. She identified as material changes in circumstances that she had taken up residence in Ireland and her baby, C, had been with her since birth and was thriving and happy. She said she had voluntarily agreed to cooperate with the child protection authorities in Ireland and that her mental health had been assessed by the health services there and she had been found to have no mental health issues. She said that she had agreed to TUSLA (the Irish child and family agency) being present in her home on three days a week to evaluate her parenting skills and "determine any concerns that might exist" and on 18 January 2016 it had been unanimously confirmed by all professionals that there was no concern and C was not considered to be at risk from her parenting in any way. She spoke of her beautiful modern accommodation and the full support of her parents.

18. The local authority filed a statement dated 20 April 2016 from the social worker allocated to look after B's case in response to the mother's statement, challenging the existence of a sufficient change in circumstances. The social worker relayed information about the situation in Ireland from conversations she had had with the social worker there. She confirmed that the child protection plan for C had ended on the basis of the family accepting a high level of support but said that the position had deteriorated. She referred to the maternal grandfather being verbally threatening to the Irish social worker in mid February and said that since then, the social worker had not gained access to the home and the family support team had been stopped from attending. She said that the social worker told her that a letter was sent to the family asking them to make contact with Children's Services or a further child protection conference would be convened, but there was no reply. She said that "due to a lack of cooperation from the family and ongoing significant concerns for C", a further child protection conference was to take place on 19 April 2016. She reported that the Irish social worker was of the view that there had been superficial engagement, that concerns for C remained significant, and that no real progress or significant change had occurred.

19. The English social worker informed the court that B had settled very well and very quickly into her adoptive home, giving some details of the arrangements there and describing B as a very bubbly, engaging and friendly little girl. The social worker concluded her report with the following two paragraphs:

"4.1 B has not been in the care of her mother … since she was a very young child and moved to her adoptive placement in July 2015. The Court process for B has been lengthy and she is in need of permanence and security within a safe and stable home environment. Although she is still young and unaware, herself (sic)  of the current Court process, she has had moves from carers which could, undeniably, impact on her and will impact on her should she not receive permanence or her current placement be disrupted or placed at risk.

4.2 It is the view of …Children's Services that since the making of the Care Order and Placement Order there is little evidence of any change in the fundamental issue that would lead the local authority to conclude that B's needs would be best suited in the care of her mother… Although her younger half sibling, C is currently in the care of [the mother], this is not without complication. Her view that there are no concerns about her parenting ability, shows a lack of understanding of both the past and present concerns for both B and C. C has already been subject to a Child Protection Plan once in the area of [Ireland] and is likely to be made subject to a Plan again. [The mother's] application to oppose the adoption of B is opposed on the basis of the above information and little evidence of any change being sustained or substantiated since the Placement Order was granted on 2nd December 2016."  

20. There are in the appeal bundle letters from TUSLA to the English social worker dated 19 and 21 April 2016. Little is known about how copies of these letters made their way to the court for the hearing before Bodey J. Counsel for the local authority (then, as now, Ms Wood) provided the judge with copies on the morning of the hearing but was not able to tell us whether other copies had been sent to the court earlier. I will need to return to this issue later.

21. In the first letter, the Irish social worker said that her "concerns in relation to [the mother's] ability to provide adequate consistent care for C remain." The letter of 21 April 2016 was much fuller and was sent in response to a request from the English social worker for the details of why concerns continued. The information it contained was in line, essentially, with the picture painted by the English social worker in her statement, but in view of the central importance of the TUSLA letters in the case, I will set out the contents in a degree of detail here, albeit not comprehensively.

22. The 21 April letter said that:

i) A family support worker began working with the family in October 2015 and was to visit 4 times a week. When the service was reviewed at the end of November 2015, the maternal grandfather wanted it to be reduced to 2 or 3 visits a week but the mother was happy with it.

ii) The mother changed the baby onto a different formula feed without discussion with a medical professional and the baby developed a rash; intervention from the nurse and GP was sought. 

iii) The mother had agreed to submit her copies of the assessments that had been completed in the UK in respect of her capacity and mental health needs to a doctor who was going to complete an assessment of her but she had not done so, despite having said in December 2015 that she had.

iv) A review child protection conference was held on 18 January 2016 and it was acknowledged that the mother was cooperating with the family support worker and the public health nurse and no longer met the criteria to be listed on the Child Protection Notification System.

v) On 26 January 2016, the mother and the maternal grandfather said they wanted the family support work visits, which were carried out to support the mother and to monitor C, to be reduced.

vi) There was a meeting at the mother's house on 8 February 2016. The social worker said that "[t]he result of the meeting was that I withdrew myself and the Family Support Worker as [the maternal grandfather] became aggressive and threatening in his behaviour and tone." It was pointed out at the meeting to the mother that the Family Support Worker was trying to support her in parenting and caring for C but that the mother was regularly not dressed when she called or the grandfather had let the mother have a lie in after tending to C during the night.

vii) C had been seen by the public health nurse since 8 February 2016 and she reported that C presented very well.

viii) On an unidentified date, the "Social Work Team Leader wrote to [the mother] asking her to respond to the department or a Child Protection Conference would be requested given her withdrawal from services." She did not respond. A conference was scheduled for 18 April 2016 but postponed, it seems following the mother contacting solicitors. According to the 19 April letter, 10 May 2016 had been fixed as the new date for the conference. 

23. The concluding paragraph of the letter observed: 

"[The mother's] non engagement with the social work department given the history that was passed on from the UK, is very concerning."

It then goes on to deal with the fact that C's birth had not been registered and no free medical care or child benefit was available to her, and the mother was  financially dependent on her parents which was "of concern given [the grandfather] indicated that he would need to travel to the UK to attend to business affairs."

Bodey J's treatment of the mother's application for leave to oppose

24. Starting at §22 of his judgment, Bodey J reviewed the evidence placed before him in support of and in opposition to the mother's application for leave. He summarised the contents of the mother's statement at §22, and at §23 set out what the English social worker had said about B's situation in her adoptive placement, referring in §24 also to the social worker's evidence that B is in need of permanence after long delays. As to the situation in the Republic of Ireland, he seems to have concentrated upon the letters of 19 and 21 April 2016 rather than upon the information relayed in the English social worker's statement, although considering that any differences between the two were fairly marginal. He set out relatively comprehensively in his judgment the contents of the letter of 21 April 2016. At §31, he then considered the submission made by counsel for the mother, Ms Harmer, that there had been fundamental change, namely the establishing of a home in Ireland, support from the grandparents, and the birth of C. He said that:

"Ms Harmer asserted on instructions that the mother was accepting of a voluntary support package which 'is working well'. She referred on instructions to the fact that the family is very receptive to support for the mother and C. Insofar as there was insufficient clarity about the Irish position, she asked me to consider postponing the decision about permission to oppose the adoption, for further clarification from that jurisdiction."

25. Bodey J did not accept that there had been a change of circumstances of the required type. He took the view, as he explained in §33, that the changes that there had been did not go to the underlying reasons that care and placement orders were made in relation to B. Given its central important, I should set the paragraph out in full:

"33. I accept that the only change in circumstances is the birth and existence of C, a sibling for B, and the fact that the mother is caring for her with help from her parents and some support from the Southern Irish Child and Family Agency. Bearing in mind the terms of Moylan J's Judgment, I do not consider that a move to a different jurisdiction (which appears to have been to avoid the social services here becoming involved with the pending baby) nor the establishment of a rented property in that jurisdiction, nor the present support from her parents amount to a change of circumstances of the type which Wall LJ had in mind in Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616. This is because the change comprising the existence of C and the fact of the mother's caring for her, is not a change that goes to the underlying reasons for which the care and placement orders were made in respect of B. Those reasons were the finding that unhappily there was an enduring personality disorder here, which had remained untreated and unrecognised by the mother and her family. That situation appears to pertain. Already the cracks are showing, as is evidenced by the material from the Child and Family Agency, which I have extracted in the above timeline. It is likely to be a somewhat fragile state of affairs emotionally in that jurisdiction, with the potential for problems which are under the surface. Cracks have emerged in the ways and with the deficiencies in real cooperation which appear from [the Irish social worker's] evidence. The cooperation is manifestly half-hearted, with an undercurrent of opposition, on the basis that it is not really recognised as being necessary."

26. Bodey J went on to deal briefly with the welfare stage of the mother's application, in case he was wrong about the change of circumstances, concluding that the mother could not succeed at the second stage of the test any more than at the first. By way of explanation for his view, he said:

"34. ….[B] is thriving with [the prospective adopters]. As [counsel for the local authority] says, the only options here are for B ultimately to be with the mother, or in foster care, or to be adopted by [the prospective adopters]. No one would seriously consider foster care for a child of this age, so the ultimate decision would be a binary one, as between the mother (with all her sad problems and with the ongoing concerns of the social services in Ireland) and [the prospective adopters].

35. In my judgment, therefore the mother's prospects are negligible. It is hugely unlikely that she would succeed in opposing the adoption and in persuading the court to transfer care of B to herself after all this time so as to bring her up with the maternal grandparents and C."

The proposed appeal: extension of time
27. The proposed appeal by the mother was commenced considerably out of time, being issued on 19 September 2016. For it to proceed further, she therefore requires not only permission to appeal in the normal way, but also an extension of the time for doing so.

28. The mother gives various reasons for the delay in launching her appeal. She suggests that she was under the impression at the start that the order could not be appealed. She says there were complications over legal aid and that there was a delay in obtaining a copy of the transcript of Bodey J's judgment. A copy of the draft transcript of the judgment (which is all that appears to be available even now) was apparently received by the local authority on 27 July 2016 and a copy was sent on by them to the mother with an accompanying letter dated 1 August 2016. It seems that the documents were put in a window envelope (which was produced to us) bearing a record of first class postage paid for a letter of 100 grams. The mother says that the postage did not take account of the fact that Ireland is an international destination and points out that the address given was without a destination country or post code. She says that the letter did not arrive expeditiously, only reaching her in mid August. As to the delay between then and 19 September 2016 when she filed her appellant's notice, she says that her father who was helping her was unwell.

29. Ms Wood, who resists the extension of time, points out that the order made by Her Honour Judge Hudson on 20 September 2016 records that the court sent the mother a copy of the transcript under cover of a letter dated 9 August 2016 and that the order also records that the court emailed the mother on 14 July 2016 and informed her that she should lodge her appeal without delay with the transcript to follow. She also points out that PD52C provides (§6) that if the appellant is unable to provide any of the necessary documents in time, he or she must complete the appeal notice on the basis of the available documents and amend later with permission.

30. Ms Wood submits that the approach of the court, when considering the question of extension of time, should be equated with an application for relief from sanctions. She helpfully refers us, amongst other authorities, to the case of Re H (Children) (Application to extend time: Merits of proposed appeal) [2015] EWCA Civ 583, [2015] 1 WLR 5085 (Re H) in which this court considered the question of extension of time. Although the point arose there in relation to appeal from a district judge to a circuit judge, the observations of the court are relevant.

31. The focus of argument before us was particularly upon the question of the transcript of Bodey J, but I have had regard also to other factors that might bear upon the issue of extending time. Of special importance, of course, is that the later commencement of the appeal has increased the delay in reaching any final resolution of B's situation which I have no doubt will have been stressful for all concerned, including, of course, the prospective adopters with whom B is placed.

32. I have not found the question of whether time should be extended to be an easy one. I will return to it after consideration of the merits of the proposed appeal. I do so because it is clear from Re H that the underlying merits of the appeal are not irrelevant to the decision about whether it should be permitted to proceed out of time.

The proposed appeal: substance

33. I said earlier that I would return to the question of the production of the TUSLA letters to Bodey J and I do so now as these letters are central to the appeal, in my view.

34. The direction that Bodey J gave on 28 April 2016 about the production of documentation from the Irish social services was in the following terms:

"16d) Leave to the Local Authority to serve documentation from an employee of [Irish] Child Protection and Welfare Team addressing the circumstances of the mother's second child, such document to be served after 10 May 2016 (when there is a review scheduled in respect of that child) but no later than 16.00 on 11 May 2016."

35. Ms Wood told us that she received the TUSLA letters from the local authority legal department on 12 May 2016 and sent them on to the mother's solicitor that day with despatch. There is no record (or at least none produced to us or referred to by Ms Wood) of them having been sent to the mother's solicitor before that. It seems therefore that Bodey J's direction that documentation from Ireland be served no later than 16.00 on 11 May was not complied with. In so far as Bodey J contemplated that there would be updating information obtained from TUSLA about the child protection conference which was due to take place on 10 May 2016, that expectation was also not fulfilled. 

36. The mother complains that she did not see a copy of the TUSLA letters of 19 and 21 April in advance of the hearing on 19 May 2016. She said she heard nothing about them from her solicitors and received a copy for the first time when, at the time of the Bodey J hearing, the local authority emailed her, attaching both TUSLA letters and the statement of the local authority social worker. Her account is that upon receipt of the documents she made phone calls attempting, unsuccessfully, to contact the court or her solicitor, wishing to get the email and letters to the maternal grandfather who was at the hearing.

37. As the mother no longer has the benefit of legal advice, it has not been possible for her former solicitor to support her account by producing documents from the file or to contribute any other information on the subject. I note that in the skeleton argument produced by the mother's counsel dated 18 May 2016, there is no mention of the TUSLA letters, but then there is equally no reference to the account that the English social worker gave of the Irish position in her statement although that dates from before the 28 April hearing, so this silence may not take the matter much further. It is also material to note, at this juncture, the additional fact that there had been a late change of counsel for the mother the day before the hearing as counsel originally instructed was ill, and one of the mother's complaints is that this hampered the presentation of her case.

38. The mother challenges the contents of the TUSLA letters as inaccurate. During argument before us, she spelled out certain specific errors that they contained, but it is clear that the fundamental difference between her account of the situation in Ireland and the interpretation placed on the letters by the English local authority and Bodey J was that they took it that "cracks" had emerged in the situation in Ireland, with deficiencies in the mother's cooperation, described as "manifestly half-hearted", and with an undercurrent of opposition (see §33 of Bodey J's judgment) whereas the mother said that the family was very receptive to support for her and C and that the voluntary support package was working well.

39. The mother argues that she did not have time to discuss the letters with her barrister and that the judge should have allowed time for this to happen. Ms Harmer does appear to have had some instructions from her, albeit that it is impossible to know to what extent the letters themselves were discussed and I am not clear whether the instructions were given directly or relayed through the mother's father. What is significant for the appeal is that the instructions were sufficient for counsel to relay to the judge, in the course of her submissions, that the mother did not accept that there were any material problems in Ireland, as Bodey J recorded at §31 of his judgment (set out above). It will be seen that, as Bodey J recounted it, Ms Harmer asked him to consider postponing the decision about permission to oppose the adoption for further clarification from Ireland in so far as there was "insufficient clarity" as to the position there. We were anxious to find out whether Ms Harmer had gone as far as expressly seeking an adjournment in order that the dispute as to the Irish position could be pursued. Ms Wood sought to assist us, I think from her notes of the hearing. Ms Harmer seems to have said to the judge that there was a degree of confusion over the Irish position as the family were willing to accept support, and also to have commented on there being no up to date assessment of how the mother was doing with C and whether she could look after both children, but asserted that the mother and C were doing well. This adds relevant context to what Bodey J said about Ms Harmer asking him to consider postponing for further clarification.

40. The mother's argument is that the judge should have adjourned to another date when the full facts could be explored. Ms Wood argues that it was not necessary for the judge to do so because the situation in Ireland was not the pivotal issue before the court. She invites attention to §33, which I have set out above, and which she argues shows that the judge rightly treated the core issue as the mother's personality disorder which he found had not been addressed. In any event, in her submission, there were enough uncontroversial facts to entitle him to take the view that there were issues in Ireland. She relies upon the Child Protection Plan in Ireland having been discharged in January 2016, which she draws from the minutes of the January 2016 Child Protection Review Conference, but then a further conference having been convened for April 2016.

41. So far, I have not referred to the letter from TUSLA to the mother dated 15 September 2016 which the mother sought to introduce as part of her appeal. I said at the hearing on 15 December 2016 that the court would decide at the outset of the permission/appeal hearing whether this letter, which obviously post-dated Bodey J's decision, would be admitted. There was, in fact, no argument about the point before us and, as it turned out, reliance was placed on it not only by the mother but also by Ms Wood, who submitted that the information conveyed in it confirms that there were continuing problems at the time of the hearing before Bodey J. I presume that she bases this upon the reference in the letter to C remaining listed on the at risk register following a child protection case conference earlier in the year, and to no further assessments having been possible since then because the Child and Family Agency had respected the mother's wishes not to be contacted. The mother, in contrast, would I think draw a positive message from the letter because the social worker says he "would ideally like to move forward toward a position in which your case can be closed to the social work department" but explains that a review conference would be necessary in order for that to happen and there would need to be a social work assessment report, reviewing the support in place.

42. For the sake of completeness, I should refer also to a further letter from TUSLA, dated 9 January 2017, which was shown to us. This is a letter informing the mother of the decision that C no longer needs a Child Protection Plan "because the risk of significant harm has been addressed" and that C's record has been changed to "inactive".

43. I have given very anxious consideration to the way in which the question of change of circumstances was handled at the hearing before Bodey J and it seems to me that there is force in the mother's complaint about the way the information from Ireland was dealt with, given that it was potentially of central importance in evaluating the change that the mother said had occurred.

44. I am not persuaded by Ms Wood's submission that there was sufficient unchallengeable material about the situation in Ireland to support the judge's findings about it. The fact that there was to be a further child protection conference does indeed suggest that the position was no longer as positive as it had been at the January child protection conference but, even taking the TUSLA letters at their face value, it is not possible to form a clear picture of what concerns had provoked the decision to hold a further conference. Without more clarity, it is difficult to determine what impact those concerns had on the question of whether there had been a change of circumstances for the purposes of the mother's application. The problem is compounded by the fact that the "non engagement with the social work department" which is said to be "very concerning" is a feature which is not accepted by the mother. Furthermore, although I am cautious about putting weight on later developments as described in the subsequent TUSLA letters, I cannot help but observe that they do not serve to eliminate any doubts that there might be about the local authority's and the judge's pessimistic interpretation of the April TUSLA letters. Having said all of that, however, I would go so far with Ms Wood as to agree that it is clear that the Irish social services remained involved and that it can properly be inferred, from the fact that a further conference was thought to be required, that they considered that the situation needed, at the very least, a formal review.

45. I can see rather more merit in Ms Wood's submission that the judge was correct to say that such changes as the mother had made did not go to the underlying reasons for the care and placement orders. Bodey J had been careful to set out Moylan J's account of the evidence of Dr Tacchi about the future prognosis for the mother's mental health (quoted at §9 above). The mother had had no psychotherapeutic intervention and Dr Tacchi's evidence was that without it, her mental health would remain the same, unless she matured out of her personality disorder. It was possible that the mother's ability to care for C indicated that she had matured in this way, but on any view such a transformation was in its early days and it was not yet entirely plain sailing, with the Irish social services remaining involved. Furthermore, the mother had not produced any psychiatric or psychological evidence that the position had changed, either (as TUSLA say) not having followed up the assessment that was planned with a doctor in Ireland or, if her mental health has been assessed (as the mother seems to have asserted to Bodey J, see §22 of the judgment), failing to produce evidence in support of there being no mental health issues. 

46. On balance, however, in view of the importance that the information from TUSLA inevitably had in the evaluation of the mother's case as to change, I am inclined to say that Bodey J should have adjourned the hearing to another date so as to enable the mother's challenges to the TUSLA letters to be explored further. How this would have been done would have had to be debated by the parties. Delay was a material consideration, of course, as the judge had already adjourned the proceedings once to enable the mother to get legal representation, so a very tight timetable might have had to be imposed. A sensible first step would probably have been for the mother to prepare a statement clearly setting out what matters in the letters she challenged and why. Our task on appeal was not made easier by the lack of specificity as to which features of the letters were disputed and this served to highlight the importance of the challenges being clearly identified at an early stage. Further inquiries of the Irish social services could have been made, with a view to obtaining more material from them, either by the mother or by the local authority. Oral evidence was a possibility, but I think it is appropriate to rehearse the following observation about the procedure to be adopted in relation to section 47(5) applications, taken from §74 v) of Re B-S (Adoption: Application of s 47(5) [2013] EWCA Civ 1146. It was directed, in fact, at the second stage of the process, the welfare question, but I think it has a relevance also in relation to the prior question of whether there has been a sufficient change of circumstances:

"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 (Adoption: Leave Provisions) [2007] EWCA Civ 616, paras 53-54."

47. However, although I accept the force of the mother's challenge to the handling of the Irish material, in my view this does not mean that the appeal should be allowed. The judge took the precaution of going on to consider the next stage of the process, in case he was wrong about the question of change of circumstances, and it seems to me that he cannot be said to have erred in the evaluative exercise involved at that stage by refusing the mother leave to oppose adoption. 

48. Bodey J had earlier considered the law that applied, particularly focusing on Re P (supra) and Re B-S. Counsel had agreed on the principles and I do not understand there to be any challenge now to the way in which the judge directed himself. I emphasise that nothing that I say in this judgment is intended in any way to alter the established law. At the second stage of the process, the decision whether or not to grant leave is governed by section 1 of the Adoption and Children Act 2002 and the paramount consideration for the court is the child's welfare throughout his or her life. At §15 of his judgment, Bodey J cited a passage from Re P which reflected this.

49. Guidance as to the proper approach to the second stage is supplied in §74 of Re B-S, from which Bodey J quoted, citing, amongst other passages, the following from the start of the paragraph:

"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."

50. He then referred to a number of the ten subparagraphs of §74, including citing from (iii), (vii) and (viii) which I will set out in full:

"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."?

"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 80 or even 90 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."

51. He also expressly reminded himself that "the court must keep in mind that adoption is 'the last resort', taking into account all the pros and cons of each of the options."

52. Bodey J's careful consideration of the law leaves no doubt that he had the proper principles in mind when he came to address the second stage of the section 47(5) process. What he said in setting out his decision on this at §§34 and 35 of his judgment must, of course, be taken together with all the material set out earlier in the judgment, as a judgment must always be read as a whole.

53. Amongst the important facts to emerge from the chronology set out earlier on by the judge were that B, who by the time of the hearing in May 2016 was nearly 3 years and 4 months old, had not been cared for by her mother since June 2013 when she was 5 months old. From December 2014 when the placement order was granted, the local authority's plan for her had been adoption. Contact with her mother had ceased in February 2015, by which point it was (as Bodey J observed in §7 of his judgment) nearly two years since the mother had cared for B. This last contact was what is called a "farewell contact" because B was about to be placed for adoption. In July 2015, she left foster care to take up residence with her prospective adopters, no doubt having been prepared for the move on the basis that she was going to live with people who would be her permanent family. As Bodey J observed at §9, she had been there for 10 months by the time of the hearing before him. He said of her placement there: "in a word, she is thriving."

54. Also of importance at the second stage of the process was the information about B's life with the adopters which was conveyed to the court in the social worker's statement, which Bodey J summarised at §23, and the social worker's advice as to B's need for permanence, to which he referred in §24. I set out earlier (§19) an extract from the English social worker's statement in which she not only gave her opinion that B needs permanence after the protracted court process relating to her, but also spoke of the impact that there would be on her "should she not receive permanence or her current placement be disrupted or placed at risk." There can be no doubt that Bodey J had this advice in mind when he considered what B's welfare throughout her life required and evaluated the mother's prospects of successfully opposing the adoption application.

55. The judge concluded that the mother's prospects of successfully opposing were "negligible" and that it was "hugely unlikely that she would succeed in opposing the adoption and persuading the court to transfer care of B to herself after all this time" (my italics; for a fuller version of §§34 and 35 of the judgment, see §26 above). In saying "after all this time", the judge showed that he was having regard to the chronology of B's life which he had set out earlier in the judgment. In this regard it is material to look at what Wall LJ said at §47 of Re P, quoted in §54 of Re B-S, which was as follows:

"when exercising his discretion under section 47(5) of the 2002 Act the judge was fully entitled—indeed bound—to give considerable weight to the fact that, from the date of the care order (May 2006) until the date of the hearing of the application for leave to defend the adoption proceedings (April 2007), a period of nearly a year, the plan for S had been adoption; that the plan had, moreover, been implemented by S's placement with the applicants in July 2006, and that it was a plan which was working."

56. Re B-S reminds us that the mere fact that a child has been placed with prospective adopters and the mere passage of time cannot be determinative, but recognises that the older the child and the longer he or she has been placed, the greater the adverse impacts of disturbing the arrangements are likely to be. In my view, when Bodey J came to consider the welfare question, as in Re P, he was "fully entitled - indeed bound" to give weight to the fact that for a long time the plan for B had been adoption and that the approach of adults to her and her practical experience in her day to day life would have reflected this, at the very latest from around the time of her farewell contact with her mother nearly a year before the hearing. It was also relevant that she had not lived with the mother since she was a baby of only 5 months old and that she had been in foster care for two years before her placement with the adopters and then with them for 10 months. Against that background, the social worker's evidence that she was in need of permanence and that there would be an adverse impact upon her if that was not achieved or if her current placement, where she was thriving, was disrupted or placed at risk was entirely understandable and bound to influence Bodey J's decision.

57. Bodey J did include in his summary of the position on welfare a reference to "the ongoing concerns of the social services in Ireland". This was a relatively low key reference to what had been discussed earlier in the judgment and, on one view, was reflective of the incontrovertible message from the TUSLA letters, but I think one must assume that it may have gone further than that and reflected also the judge's view that there were cracks appearing in Ireland. Given my concerns about the way in which the TUSLA letters were handled, I have considered what impact that reference had upon the judge's decision and have concluded that it does not undermine it materially. Even taking only the incontrovertible facts, the position in Ireland was not totally straightforward in that social services remained involved and a child protection conference was thought necessary. That was undoubtedly material to the evaluation of the mother's prospects of succeeding in opposing the adoption and to the evaluation of what was in B's welfare interests and, taken with the older history of the mother's problems and with B's own history so far, as well as the English social worker's evidence about the adverse impact of disruption, was sufficient to justify the judge's conclusion that leave to oppose should not be granted. The judge had reminded himself that adoption was the last resort and was clearly conscious of the family tie between B and the mother, the grandparents and C, as can be seen in his concluding words where he refers to the mother's wish to bring B up with them. His decision was taken with sympathy for the family but looking at the reality, and has not been demonstrated to be wrong.

58. It will be apparent that in my view some of the points that the mother raised in this appeal had force. Notwithstanding her delay in commencing the appeal, which has caused me to hesitate seriously over whether it is appropriate to extend time for it to be brought, I have ultimately taken the view that the correct course would be to extend time and give permission to appeal. However, given that I would not interfere with Bodey J's decision at the second stage of the process, I would dismiss the appeal. An adverse conclusion at the second stage leads inevitably to the refusal of leave to oppose adoption, so the judge's order is not affected by any defects in the way in which his conclusion as to the change of circumstances was reached.

Senior President:
59. I agree.