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Y (Leave to Oppose Adoption), Re [2020] EWCA Civ 1287

This was an appeal made by a local authority against a decision of HHJ Wicks in adoption proceedings concerning a child, Y (aged 2 years and 8 months). HHJ Wicks had granted Y’s parents leave to oppose the making of an adoption order. The appeal was dismissed. Of wider interest is the fact that this was the first remote hearing before the Court of Appeal involving litigants with hearing difficulties. The court referred the matter to the President and MacDonald J to consider whether the guidance on the conduct of remote and hybrid hearings needs amendment to address the difficulties faced by disabled litigants in general and those with hearing loss in particular.

Background
Care proceedings were brought in respect of Y and his older half-siblings after Y, then a few weeks old, was taken to hospital and found to have sustained 10 fractures of various ages and a number of bruises. The parents (M and F) accepted that the injuries had been inflicted by F. There was a fact-finding hearing in April 2019 at which HHJ Wicks made a number of serious findings against the parents (some accepted by them and some not) [findings set out at para 6].

The parents accepted that the findings ruled them out as carers. A final hearing took place in July 2019. Y's half siblings were made subject to care orders and placed with the maternal aunt and uncle. There were no other family members to put forward as possible carers for Y so, there were only two realistic options for him: adoption (sought by the Local Authority) and long-term fostering (sought by the parents). HHJ Wicks approved the Local Authority's care plan and made care and placement orders.

Y had been with his foster carers for nearly 18 months. They expressed a wish to adopt him and on 6 September 2019, filed an adoption application. The parents then filed an application under s.47(5) of the Adoption and Children Act 2002 for leave to oppose the adoption.

This application also came before HHJ Wicks. After the hearing was adjourned twice, the matter was listed for determination by written submissions. The learned judge granted leave on 29 June 2020. He was satisfied that there had been a significant change in the parents' circumstances and that when considering Y's welfare throughout his life, the parents had a solid case for opposing the making of an adoption order.

HHJ Wicks refused the local authority's application for permission to appeal and a notice of appeal was filed with the Court of Appeal on 6 July 2020. Permission to appeal was granted.

The appeal
The appeal was opposed by the parents but supported by the Guardian.

The Court of Appeal held that HHJ Wicks had identified and properly applied the correct legal principles, was entitled to proceed on the basis of written submissions, had not taken the parents' assertions of change at face value, had undertaken a careful and balanced analysis of Y's welfare and correctly identified that he was not evaluating the prospect of Y being returned to the parents' care but, rather, the prospect of the parents successfully opposing the making of an adoption order [paras 34-39]. Put simply,

"…he concluded that, having identified changes in circumstances sufficient to open the door, it was in the interests of Y's welfare throughout his life to have another look at the question whether the need to preserve family relationships, in particular sibling relationships, continues to be outweighed by the greater permanency which adoption would bring." [para 39]

The local authority complained that when HHJ Wicks had considered its "schedule of clarifications" submitted following his judgment, he had replied with concern that the sibling contact had been so limited (direct contact having taken place only three times since the making of the placement order) when "[his] welfare analysis in the care proceedings was in no small part based upon the fact that the local authority had committed itself to finding prospective adopters who would be willing to promote sibling contact" [para 18]. It was accepted in the Court of Appeal that the learned judge's recollection on this point may have been mistaken, however this did not materially undermine his assessment of whether the issue should be reviewed again in the context of the adoption application [paras 40-41].

Participation of disabled litigants at remote hearings
Y's parents are profoundly deaf and participated in the court proceedings with the assistance of sign language interpreters. M was also assisted by a deaf-registered intermediary. Their participation in the proceedings had been made more difficult as the hearings were conducted remotely.

This was the first remote hearing before the Court of Appeal involving litigants with hearing difficulties. The court declined to give updating guidance for managing such cases but referred the matter to the President and MacDonald J to consider whether the guidance on the conduct of remote and hybrid hearings in the family justice jurisdiction needs amendment to address the difficulties faced by disabled litigants in general and those with hearing loss in particular [para 2]. 

The court confirmed that, in the meantime, the guidance given in Re C (A Child) [2014] EWCA Civ 128 applies, including in the Court of Appeal. It was noted that in the case of a remote or hybrid hearing, where the party, interpreter and/or intermediary are not together in the same room, it will be necessary to consider how they can communicate with each other separately from and alongside the platform through which the hearing is being conducted. That may or may not be a matter for a court direction, but it will certainly be something to be considered and arranged by the parties' solicitors [para 3].

Summary by Sophie Smith-Holland, barrister St Johns Chambers 

Read the full judgment of Y (Leave to Oppose Adoption), Re [2020] EWCA Civ 1287 on BAILII