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Route set out for carer who is neither parent nor guardian to participate in adoption proceedings

Court of Appeal dismisses appeal in Re G (A Child) [2014] EWCA Civ 432

In Re G (A Child) [2014] EWCA Civ 432, the Court of Appeal has considered the legal route for a person who is not a parent or guardian to seek to participate within adoption proceedings.

G, who was 3 years old, had been made subject of a final care order and a placement order on 2nd November 2012. At the time of G's birth, his mother had handed over the care of him to AR. She was the mother of the partner of G's mother at the time of G's birth. Since the partner was not G's father, AR was not related biologically to G. However, she had cared for G until the care and placement orders (so for a total of about 18 months).

G was placed with prospective adopters in May 2013. The prospective adopters issued an application to adopt G on 19th August 2013. AR made an application for leave to oppose the adoption order on the ground that there had been a significant change of circumstances.

At first instance, the judge held that an application for leave to oppose adoption under the Adotion and Children Act 2002 ("ACA 2002") may only be made by a parent or guardian within the meaning of the act and that AR did not come within the terms of that provision. She considered whether, as an alternative, AR should be joined as a respondent to the adoption application under FPR 2010 r 14.3. The judge held that such a course would be wholly unjustified and lacking merit, and therefore refused AR's application.

AR appealed to the Court of Appeal. Permission to appeal was granted by McFarlane LJ on 14th February 2014.

McFarlane LJ (with whom Lewison and Sullivan LLJ agreed) set out the route for participation in the adoption proceedings for a person in the circumstances of AR:

  1. Once an adoption application has been issued with respect to a child who is the subject of a placement order, no parent or guardian may oppose the making of an adoption order without the court's leave and the court cannot grant leave unless there has been a change in circumstances. AR fell outside of the statutory definitions of a "parent" or a "guardian".  
  2. A person who is not a parent or guardian could, however, once the adoption application had been made, make an application for leave to apply for a residence order as a result of the application of the provisions of ACA 2002, s29(3) and (4). Such an application would follow the FPR 2010 Part 18 procedure. 
  3. An application under section 29(4)(b) for a residence order was an application relating to the initiation of proceedings, rather than a decision relating to the adoption of the child. ACA 2002, s 1 did not therefore apply and the child's welfare was not therefore the paramount consideration.  
  4. There was no discrete requirement for an applicant under section 29(4)(b) to show a change of circumstances, but any change in the underlying circumstances would be of great relevance to the assessment of the prospects of success for the proposed residence application and when considering the welfare of the child. The application would fall for adjudication in accordance with the approach for applications for leave to apply to revoke placement orders as described by Wilson LJ (as he then was) in M v Warwickshire County Council [2007] EWCA Civ 1084, [2008] 1 FLR 1093.  
  5. It was also technically correct that AR was able to apply to be joined as a party to the adoption proceedings whether or not she was at the same time given leave to apply for a substantive order, as per the operation of FPR 2010 r 14.3. However when considering such an application, in common with the approach taken in Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737, [2012] 2 FLR 1358, the court should have an eye to what may follow joinder. 
  6. The circuit judge had therefore not conducted an exercise compatible with the different considerations which would apply under ACA 2002, s29(4). On the facts of the case, however, applying the correct test as identified by the Court of Appeal, AR should not be granted permission to apply for a residence order. She also did not have sufficient interest to be joined as a party to the adoption application.

The appeal was therefore dismissed.

Ruth Henke QC of 30 Park Place and Lucy Leader of Angel Chambers (instructed by Goldstones Limited) represented the appellant. Lorna Meyer QC of No 5 Chambers (instructed by City and Council of Swansea) represented the first respondent. Catherine Heyworth of 30 Park Place (instructed by Graham Evans & Partners) represented the second respondent. Ann Chavasse of St Ives Chambers (instructed by David Prosser & Co.) represented the third respondent.

For the judgment and summary by Thomas Dudley of 1 Garden Court Chambers, which is reproduced here, please click here.