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H v G (Adoption Appeal) [2013] EWHC 2136 (Fam)

Appeal by mother against an adoption order. Consideration of the test for granting permission to appeal. Appeal dismissed.

Appeal by the mother against an adoption order made in relation to her daughter, now aged 2 ½ years old. The appeal was on the basis that the district judge had weighed the evidence wrongly in reaching the conclusion that the order should be made. The mother had a difficult history and a previous child had also been removed. The court recognised that the orders made were grave orders, and there was an absence of contact for the future. However, the district judge had been aware of all those considerations, and there was no basis for saying that his evaluation was wrong. The court expressed concern at the length of time that had passed before the appeal had been heard, as it had taken 6 months to come to a final hearing.

In addition, Jackson J noted that the appropriate test when considering permission to appeal is that set out at r.30.3(7) of the Family Procedure Rules 2010, in that an applicant must show "a real prospect of success". The court expressed the view that no further elaboration of those words was necessary or helpful, and that to allow applications on the basis that they were not capricious, whimsical or absurd was to set the threshold too low.

Summary by Jacqui Thomas, barrister, 37 Park Square Chambers

Neutral Citation Number: [2013] EWHC 2136 (Fam) 
Case No: FD12Z05008

Royal Courts of Justice
3th June 2013

B e f o r e :

 H v G (Adoption Appeal) 

Transcript from a recording by Ubiqus
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1. February of this year by Mr Justice Mostyn against an adoption order made by District Judge Harper on 30th November 2012 in relation to the Applicant's daughter T, who was born on 30th December 2010 and is therefore now 2½ years old. When making the adoption order at a hearing that lasted some three days, the District Judge declined an application made by the Applicant for the setting aside of a placement order. He further did not make any order for direct contact after adoption. It is against those decisions that this appeal is now brought.

2. In this Court there is no disagreement in relation to legal matters. With the advantage of the decision of the Supreme Court published only yesterday in the matter of Re B (A child) [2013] UKSC 33 it is clearly understood that an order of the kind that was made in this case can only be made where it is necessary and proportionate and in effect as a last resort in meeting the needs of the child concerned. Further, when considering arguments about the manner in which the trial judge approached matters, the question that the appeal court must ask itself is whether the judge was wrong.

3. In this case it is not suggested by any of the parties that the District Judge approached the task before him on the basis of a wrong understanding of the law. Although it is right to say he did not explicitly mention the relevant Convention rights, the overall effect of his judgment clearly shows that he well understood the significance of the relationships involved and dealt with them respectively and with appropriate seriousness. It might have been better had he attached a label, but nothing turns on that at this point.

4. What is said on behalf of the Applicant is that the District Judge weighed the evidence wrongly in reaching the conclusion that an adoption order should be made. Although the Applicant is still a young adult there is a long and difficult history stretching back into her own childhood. In June 2008, S, her first child, was removed from her care. At that time she faced multiple difficulties arising from her personal background, her use of drugs, a relationship with S's father, who was entirely unsuitable to be a partner or a parent: her life was, on any view, chaotic.

5. S was made the subject of a care and a placement order in December 2009, and was eventually adopted in May 2011. The Applicant then began a relationship with the father of T; again, somebody unsuited to that role, and the relationship caused the Applicant the very greatest of difficulties. It continued until March 2012 and during it she was the subject of considerable domestic abuse.

6. T was born, as I have said, in December 2010. Against this background it was rightly considered that the Applicant needed help and support and that T needed a degree of protection. The Local Authority, having taken care proceedings, arranged for the Applicant and baby to be placed in a foster home together, so when T was aged only a week old she went to live with Mr and Mrs G. As matters turned out, T has remained with that family ever since.

7. On 24th January 2011, the placement broke down so far as the Applicant herself was concerned and following friction between her and the foster parents she left. Thereafter she has had regular contact of good quality up to the end of 2012.

8-26. [The court reviewed the previous proceedings and the conclusions of the District Judge.]

27. In conclusion, the orders that were made in this case were grave orders and added to the making of an adoption order the absence of an order for contact is a conclusion of real significance. However, I am quite satisfied that the District Judge was aware of these considerations, and having considered the matter once again, I cannot find that there is any basis for saying that his evaluation was wrong.

28. Unfortunately in this case the difficulties that the Applicant has faced and continues to face are too great to allow her to reliably meet the needs of S and now of T. That is a very sad conclusion from her personal point of view, but I hope that when more time passes she will also come to see that she has a real contribution to make to the welfare of S and of T by continuing to improve her own position so that in future they will be able to know that she has been doing well.

29. I dismiss the appeal against the order of 30th November 2012.

30. I want to add two things: the first is to express my concern that this appeal has taken six months to have been heard. An appeal against an adoption order should never take that long. It should have been resolved months ago.

31. Secondly, although it has no bearing on my decision or even on the issue with which I have had to deal, I have noted the judgment of Mr Justice Mostyn in granting permission to appeal. During the course of that judgment he refers to previous formulations of his own and of Mr Justice Moor (AV v. RM (Appeal) [2012] EWHC 1173(Fam), [2012] 2 FLR 709) in relation to the appropriate test to be applied. The test, which appears at Rule 30.3(7) of the Family Procedure Rules 2010 is that an applicant must show 'a real prospect of success.' I would simply record that so far as I am concerned no further elaboration of those words is necessary or helpful. I would not, with respect to Mr Justice Mostyn, follow him in regarding it as a term of art or in focusing on the word 'fanciful' derived from a previous Court of Appeal authority as an antonym to the word 'real' in the rule; or of finding synonyms to that antonym, particularly the synonyms 'capricious, whimsical or absurd.'

32. I respectfully suggest that to allow permission to appeal in any case where the application is not capricious, whimsical or absurd is to set the threshold too low. It does not, in my view, give effect to the rule that simply requires a real prospect of success to be shown.

33. Postscript: Since the above judgment was given, I have seen and respectfully agree with the decision of Mr Justice Moylan in CR v SR [2013] EWHC 1155 (Fam), in which at paragraphs 2-8 he more fully considers the matter.