COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COVENTRY COUNTY COURT
HIS HONOUR JUDGE BELLAMY
LOWER COURT NUMBER: CV07Z00562/564
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DYSON
LORD JUSTICE WILSON
| WARWICKSHIRE COUNTY COUNCIL
|- and -
M AND L, by their Children's Guardian
MR ALISTAIR MACDONALD (instructed by Alsters Kelly, Leamington Spa) appeared for the mother, the Respondent.
MR PIERS PRESSDEE (instructed by Johnson and Gaunt, Banbury) appeared for the children, the Interveners.
Hearing date: 2 October 2007
Crown Copyright ©
Lord Justice Wilson:
SECTION A: INTRODUCTION
"(1) The court may revoke a placement order on the application of any person.
(2) But an application may not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless –
(a) the court has given leave to apply, and (b) the child is not placed for adoption by the authority.
(3) The court cannot give leave under subsection (2)(a) unless satisfied that there has been a change in circumstances since the order was made."
This appeal requires the court to identify the criteria by reference to which a judge should determine whether to grant leave pursuant to s.24(2)(a) of the Act to apply for the revocation of a placement order, namely an order authorising a local authority to place a child for adoption.
"if the court is satisfied that there has been a change in circumstances since the placement order was made then it must grant leave."
He proceeded to find that there had been a change in the mother's circumstances and thus he granted leave.
SECTION B: THE FACTS
(a) The mother had exposed the children to frequent incidents of domestic violence between her and L's father, during which the police had been called.
(b) Contrary to professional advice, she had allowed him to return to the family home although, to her knowledge, he believed that he had heard voices that he should kill L.
(c) Notwithstanding his removal to Africa, she had not excluded the prospect of reconciling with him in the event that he might manage to return to the U.K.
(d) She had recently developed a relationship with another man named Emmanuel, whom she had put forward as a prospective carer of the children jointly with her.
(e) For five years until late in 2005, since when she had been abstinent at any rate from drugs, she had been abusing alcohol and crack cocaine, had therefore been unable properly to look after herself let alone the children and, other than in the short term, had failed to access help in overcoming those problems even for the sake of the children.
(f) The condition of her home had often been squalid.
(g) She had left the children unsupervised or with unsuitable carers.
(h) She had failed to take the children for medical appointments and, following their reception into care, had frequently cancelled contact sessions or arrived late for them.
(i) A clinical psychologist had assessed her as immature, prone to abusive relationships, overwhelmed by the enormity of her problems and unlikely to be able to sustain the changes necessary for the provision of safe parenting to the children within a time-frame acceptable for them.
(j) The children had already spent 19 months in foster care. In the words of the guardian, it was "not in their best interests to wait any longer" and the mother had "left it too late to demonstrate that she [was] able to make the necessary changes to her life".
SECTION C: ANALYSIS OF THE JUDGE'S CONCLUSIONS
(a) L's father had died in Zimbabwe on 9 March 2007.
(b) The mother's relationship with Emmanuel, which had been abusive, had ended in December 2006.
(c) Since then she had not been "romantically involved" with any other man.
(d) Her abstinence from crack cocaine, which had begun late in 2005, had continued to date but until April 2007 she had at times continued to use cannabis. Her abstinence from all prohibited drugs since April 2007 was demonstrated by a trichological report.
(e) Her drinking of alcohol had become negligible, as was demonstrated by the results of a blood test.
(f) She now kept her home clean and tidy, as she sought to demonstrate with photographs.
(g) Between March and June 2007 she had held down a part-time job and, albeit after issue of her applications, had approached an advisory service and secured a written "Career Action Plan", which she produced.
(h) For the monitoring of her HIV-status she had continued to attend a clinic four times a year and, albeit after issue of her applications, she had registered for counselling with the Terence Higgins Trust.
(i) Albeit after issue of her applications, she had sought counselling with a Domestic Violence Support Service.
"I acknowledge the force of the points raised by the local authority. Whilst each of those points would be relevant in any welfare assessment under section 1, I have found that the determination of an application for leave under s.24(2)(a) does not involve a welfare assessment. I am, as I said earlier, confined to assessing whether the mother is able to satisfy the court that there has been a 'change in circumstances'."
"of a nature and degree such that, if leave were granted, the parent would have a real (i.e. as opposed to a fanciful) prospect of persuading the court to revoke the placement order."
In that, as was agreed on both sides and as the judge accepted, the paramount consideration of the court in deciding whether to revoke the placement orders would be the welfare of the children (see s.1(2) and (7)(a) of the Act, which I will set out in  below), assessment of whether the mother had a real prospect of securing revocation would clearly require reference to the interests of the children. Consistently with her submission that the interests of the children are irrelevant to leave, the mother has filed a Respondent's Notice in which she disassociates herself from this part of the judge's analysis. In the event, however, it had no adverse consequences for the mother's case: for, having articulated a qualification which should have brought the interests of the children into focus, the judge, as I have shown, failed to apply it to the facts and, on the contrary, described the arguments referable to the interests of the children as irrelevant.
"(5) A parent … may not oppose the making of an adoption order under the second condition without the court's leave.
(7) The court cannot give leave under subsection … (5) unless satisfied that there has been a change in circumstances since … the placement order was made."
"(1) This section applies whenever a court or adoption agency is coming to a decision relating to the adoption of a child.
(2) The paramount consideration of the court or adoption agency must be the child's welfare, throughout his life.
(4) The court or adoption agency must have regard to the following matters (among others) –
(7) In this section, "coming to a decision relating to the adoption of a child", in relation to a court, includes –
(a) coming to a decision in any proceedings where the orders that might be made by the court include an adoption order (or the revocation of such an order), a placement order (or the revocation of such an order) or an order under section 26 (or the revocation or variation of such an order),
(b) coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an adoption agency or individual under this Act,
but does not include coming to a decision about granting leave in any other circumstances."
In Re P this court held, surely uncontroversially, that, in exercising its discretion whether to grant leave to parents to oppose the making of an adoption order under s.47(5), a court was "coming to a decision about granting leave in respect of any action (other than the initiation of proceedings in any court) which may be taken by an … individual under this Act" within s.1(7)(b) and thus that s.1, in particular subsections (2) and (4), applied to it.
"The only test [which Parliament] has provided is that set out in s.24(3). It is not for the court to import or 'read into' the section some additional test."
In my view it is the judge's construction of s. 24(3) which requires different words to be read into it. The subsection includes the words "cannot give leave … unless satisfied" but the judge read them as if they were "must give leave … if satisfied".
SECTION D: A REAL PROSPECT OF SUCCESS
(a) If a child is a ward of court, an application for an order for his adoption cannot be issued without leave of the court in wardship. In deciding whether to grant leave, the court will consider whether the application "reasonably might succeed": F v. S (Adoption: Ward)  Fam. 203.
(b) A child's application under s.10(8) of the Act of 1989 for leave to apply for an order under s.8 of that Act referable to himself requires the court to consider "the likelihood of success": Re SC (A Minor) (Leave to Seek Residence Order) cited above.
(c) An application under s.10(9) of the Act of 1989 for leave to apply for an order under s.8 requires the court to consider – in addition to other specified factors – "whether there is an arguable case": G v. F (Contact and Shared Residence: Applications for Leave)  2 FLR 799.
(d) An application under s.34(3) of the Act of 1989 for leave to apply for an order for contact with a child in care requires the court to consider whether "there is any eventual real prospect of success" and "a good arguable case": Re M (Care: Contact: Grandmother's Application for Leave)  2 FLR 86.
(e) An application under s.91(14) of the Act of 1989 for leave to make an application by a person who by order thereunder has been barred from doing so without leave requires the court to ask "does this application demonstrate that there is any need for renewed judicial investigation?": Re A (Application for Leave)  1 FLR 1.
Indeed in Re P, in which the discretion whether to grant leave to oppose was overcast by the paramountcy of the child's welfare, this court said, at , that it had been proper for the judge to consider whether the parents had a "realistic prospect of succeeding in their opposition".
SECTION E: THE DISCRETIONARY EXERCISE
(a) Were leave granted, the applications for revocation would be heard swiftly, namely on dates beginning on 17 December 2007, which is less than two months from today.
(b) The proposed adopters are prepared to keep open until the conclusion of that hearing their offer to the children of a placement with them, subject to satisfactory introductions.
(c) So the mother argues that the grant of leave would give rise to negligible further delay, with no risk that the proposed adopters might be lost in the interim.
(d) But what chance is there that the court would revoke the placement orders at the conclusion of the hearing in December 2007?
(e) Revocation would amount to the wholesale reversal of the programme for the children which the court felt driven to endorse when making the care and then the placement orders about 16 months ago.
(f) The court then endorsed the programme for the children to be adopted, in effect without opposition by the mother, because they had suffered significant harm in her care and because there was then no prospect that, within a time-frame apt to the children's needs, she could develop a capacity to care adequately for them.
(g) In such circumstances, even were she to establish all the alleged features of the change in circumstances which we assume to exist for present purposes, the mother would face a stiff task in persuading the court that she had the capacity to provide the adequate care which she lacked 16 months ago.
(h) Surely the only arguably realistic aspiration of the mother at the hearing in December would be to achieve an adjournment of her applications for revocation pending full professional assessment of her parenting capacity. But, even were such assessment to be found at a subsequent hearing to be sufficiently positive to justify a reintroduction of the children to her, initially through contact, the court would need a further, positive, assessment of her together with them before being able to give definitive consideration to revocation of the placement orders and, presumably, unless the local authority were to change their care plan, also of the care orders.
(i) So at the hearing in December the mother's only real hope would be to persuade the court to adopt a forensic programme inherent in which would be protracted further delay for the children.
(j) One could not rely on the present proposed adopters, who appear to be particularly well matched to the children, to feel able to tolerate such further delay.
(k) The children have already been in what was intended to be "short term" foster care for three years, namely for well over half their lives.
(l) No less than sixteen months ago the court accepted the guardian's view that it was not in the interests of the children to wait further and that the mother had left it too late to demonstrate necessary change.
(m) Thereafter, as predicted, the children proved difficult to place. Were at any stage the programme likely to be advocated on behalf of the mother in December to break down, they would, by reason alone of increased age, be even more difficult to place.
(n) Four months ago the children said farewell to the mother and they have not seen her since then. At that time it was represented to them that the end of their contact with her was part of an arrangement under which, at last, they were about to move to their new, permanent home. The children might well face serious emotional difficulties in coming to terms with any reversal of such representations.
(o) In December the court would have to weigh the above factors in determining whether to accede to the mother's likely request for her applications for revocation to be adjourned.
(p) The overwhelming likelihood is that in December the court would find it contrary to the welfare of the children for the applications for revocation to be adjourned (still less to be granted there and then) and therefore that instead it would dismiss the applications.
(q) So the applications for revocation have no real prospect of success.
(r) Nor would it serve the welfare of the children for the applications for leave to be granted.
(s) In the above circumstances, in its discretion, the court should refuse the mother's applications for leave.
SECTION F: OUTCOME
Lord Justice Dyson:
Lord Justice Thorpe: