COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HIS HONOUR JUDGE CORRIE sitting in the High Court
FAMILY DIVISION AT OXFORD COUNTY COURT
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALL
MR JUSTICE HEDLEY
|- and -
|Serial No. 52/2006
SP (acting by her Children's guardian)
|P (A Child)
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Piers Pressdee (instructed by Oxfordshire County Council and Darbys - Solicitors) for the 1st and 2nd Respondent
Jonathan Sampson (instructed by Whetter, Duckworth & Fowler – Solicitors) for the 3rd Respondent
Simon Miller (instructed by Challenor & Gardiner – Solicitors) for the 4th Respondent
Hearing date : 12th June 2007
Crown Copyright ©
Lord Justice Wall:
The change of circumstances (sic) is not in any event sufficient. It remains, as I have put it, inchoate or work in progress, to be applauded but not finally crowned. If that is wrong, then there has to be consideration of the welfare of S and whether that dictates that leave should or should not be given.
The statutory provisions
An adoption order may not be made if the child has a parent or guardian unless one of the following three conditions is met.
(4) The second condition is that -
(a) the child has been placed for adoption by an adoption agency with the prospective adopters in whose favour the order is proposed to be made,
(ii) the child was placed for adoption under a placement order, and
(c) no parent or guardian opposes the making of the adoption order.
(5) A parent or guardian may not oppose the making of an adoption order under the second condition without the court's leave.
The court cannot give leave under subsection ….. (5) unless satisfied that there has been a change in circumstances since the placement order was made.
(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.
The meaning of section 1(7) of the 2002 Act
A two stage process
The meaning of "a change in circumstances"
The exercise of discretion
(3) The court or adoption agency must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare.
(4) The court or adoption agency must have regard to the following matters (among others)—
(a) the child's ascertainable wishes and feelings regarding the decision (considered in the light of the child's age and understanding),
(b) the child's particular needs,
(c) the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person,
(d) the child's age, sex, background and any of the child's characteristics which the court or agency considers relevant,
(e) any harm (within the meaning of which the (1989 Act) which the child has suffered or is at risk of suffering,
(f) the relationship which the child has with relatives, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including—
(i) the likelihood of any such relationship continuing and the value to the child of its doing so,
(ii) the ability and willingness of any of the child's relatives, or of any such person, to provide the child with a secure environment in which the child can develop, and otherwise to meet the child's needs,
(iii) the wishes and feelings of any of the child's relatives, or of any such person, regarding the child.
(6) The court or adoption agency must always consider the whole range of powers available to it in the child's case (whether under this Act or the (1989 Act)); and the court must not make any order under this Act unless it considers that making the order would be better for the child than not doing so.
The exercise of discretion in the instant case
The previous proceedings
Nor do I accept, and I am pessimistic about it, that there is any real prospect that these parents in relation to this child – I say nothing about the impending one – could continue what is in the father's case a heartening improvement in his behaviour. But it is not enough, and the improvement has not been sufficiently established to justify taking what would really amount to a gamble with this baby's life.
Was the hearing fair?