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Re S (A Child) [2021] EWCA Civ 605

The Court of Appeal ordered a rehearing of a mother’s application for leave to oppose an adoption application, because of procedural unfairness. The local authority’s failure to ensure that the necessary material was available to the mother and the court was criticised.

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"In my view, the mother has a legitimate sense of grievance that, however sympathetically the judge approached her application, it was not determined properly. The consequences for her, and Z, are far reaching. It is trite to say that, however inevitable it may be, a disappointing result reached without procedural integrity will fuel a sense of injustice"

Z and 4 older siblings were made subject of care orders on 1 February 2019 by order of HHJ Heaton QC. Z was also made the subject of a placement order on the same day. Z's last contact with the mother occurred in March 2019. The mother attempted to appeal the care and placement orders but the application was dismissed for breach of procedural requirements in July 2019. An attempt to reinstate the appeal was dismissed on 22 October 2020.

Z was placed for adoption in September 2019. An application under s24 Adoption and Children Act 2002 for leave to apply to revoke the placement order was dismissed by HHJ Heaton QC in November 2019 (when he also ordered that Z younger sibling by a different father should live with the father, subject to a supervision order).

The adopters gave notice of their application to adopt and the mother's response was to apply for leave to oppose the adoption under s47(5) ACA 2002. HHJ Heaton QC had retired and the matter came before HHJ Jack. The judge refused the mother's application on the basis that although she had made changes some of them predated the hearing in November 2019. The judge did not have the judgment from either the care and placement hearing in March 2019 or the leave to revoke hearing on November 2019. He made assumptions about the way that HHJ Heaton QC had assessed the changes. The local authority consisted of an affidavit from a social worker who had not been involved in the earlier proceedings and the Annexe A report (on the merits of the adoption), which had not been disclosed to the mother.

Macur LJ (with whom the rest of the court agreed) concluded that the failure to ensure that HHJ Jack had transcripts of HHJ Heaton QC's judgements meant that there was no reliable bench-mark against which to measure change. She rejected the local authority's suggestion that the responsibility for that was the mother's (a litigant in person). She noted that the social work affidavit purported to address the different issue and legal test of an application to revoke. She also rejected the suggestion that the amount of redaction necessary would have rendered the disclosure of the Annexe A report unreadable as only one section deals with the adopters. The Court of Appeal could not assess the situation because its orders for key documents from the care proceedings and the transcripts had not been complied with either. Neither the Court of Appeal nor counsel for the local authority had read the Annexe A report. The document could have been disclosed to the mother or at least the parts about her: FPR 14.13.

It is not clear from Macur LJ's judgement why it was assumed by the local authority and HHJ Jack that the application for leave to apply revoke had been dealt with on its merits in November 2019. If the child had already been placed then it was bound to fail: Re F (a child: placement order) [2008] 2 FLR 550, irrespective of any changes the mother had made. The court would have then been considering the argument for the first time on the application under s47(5).

This case read together with R (On the Application Of EL) v Essex County Council [2017] EWHC 1041 (Admin) makes it clear that the profound effects of adoption place significant responsibilities on local authorities to ensure that the requirements of procedural fairness are satisfied. A failure to be proactive has serious ramifications for parents, adopters and most importantly the child as the processes of challenge are worked through. Many authorities will therefore seek to obtain transcripts of judgments from care and placement proceedings when those proceedings are complete where the plan is adoption, thereby speeding up consideration of any appeals and any applications for leave to apply to revoke placement orders or oppose adoption order. The possibility of the disclosure of material from Annexe A reports should also be considered when the s47(5) application is received. Those advising parents and adopters will also need to consider this possibility so that the court can give directions expeditiously.

Case summary by Nicholas O'Brien, Barrister, Coram Chambers

For full case, please see BAILII