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President considers refusals of permission to oppose adoption prior to Re B-S

Final adoption orders should be deferred to allow time for parents’ appeal

In Re W (A Child); Re H (Children) [2013] EWCA Civ 1177, the President considered two appeals which arose from first instance decisions given before the judgment in Re B-S (Children)  [2013] EWCA Civ 1146. The President said that appropriate allowance must be given for the fact that such first instance decisions pre-dated Re B-S. In any appeal,

"the focus must be on substance rather than form. Does the judge's approach as it appears from the judgment engage with the essence? Can it be said, on a fair reading of the judgment taken as a whole – a fair and sensible reading, not a pedantic or nit-picking reading – that the judge has directed his mind to and provided answers to the key questions?"

For example the mere fact that in dismissing the application for permission to oppose, the first instance judge used phrases such as permission is only granted in "exceptionally rare" cases, or that the test is a "stringent" one, does not mean in itself that an appeal is likely to succeed (both phrases were disapproved of by the President in Re B-S).

The President also made it clear that in dealing with s.47(5) applications it is a two stage process.

"There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?" Para. 19 of Re W (A Child); Re H (Children).

At this second stage, the judge has to evaluate the parent's ultimate prospects of success if given leave to oppose. The key issue is whether the parent's prospects of success are "more than just fanciful, whether they have solidity". If the answer to this point is no, then once again the application goes no further. However, if the parent is able to establish that he or she does have "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" – para. 22.

The President went on to indicate that henceforth even if the application for permission under s.47(5) is refused, then the judge should not proceed to make a formal adoption order that same day or proceed immediately to a celebration hearing. Rather, it would be prudent to wait until the time for permission to appeal has expired, before proceeding to make final orders.

In both appeals the parents were successful and each case was remitted to the respective first instance circuit judges for rehearing in the light of the Court of Appeal's decision in this case and Re B-S.

The judgment and case summary by Anthony Hand, from which this item is derived, can be read here.

Anthony Hand of College Chambers (instructed by Legal and Democratic Services, Borough of Poole) represented the respondent local authority in Re WCharlotte Pitts of Albion Chambers (instructed by Legal Services, Bristol City Council) represented the respondent local authority in Re H. In each case the appellant parents appeared in person.