Case No: B4 / 2010 / 2272
Neutral Citation Number: [2010] EWCA Civ 1535
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE HOLMAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 24th November 2010

Before:

LORD JUSTICE THORPE
LORD JUSTICE MUNBY
and
MR JUSTICE COLERIDGE
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IN THE MATTER OF W (a Child)

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Mr Chisholm (instructed by Messrs McMillan Williams) appeared on behalf of the Appellants, the adopters.

Mr Howling (instructed by London Borough of Lambeth Legal Services) appeared on behalf of the First Respondent, the local authority.

Mr Douglass (instructed by Charles Ete and Co) appeared on behalf of the Second Respondent, the mother.

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Judgment
Lord Justice Thorpe:

1.	This appeal, for which Wilson LJ granted permission, is brought to decide the future of a little boy, Josiah, who is five years 10 month of age, having been born on 27 January 2005.  He was removed from his mother's care under an emergency protection order on 18 August 2007 and that is the date of his mother's last contact with him.  Care proceedings developed conventionally to a final care order granted on 29 April 2008 to the local authority.  The mother did not participate in those proceedings.  The next stage was a placement order made on 16 June 2008, again without the mother's participation.  However, by 29 September 2008, some three months after the making of the placement order, the mother registered her liberation from a dependence on drugs which had prevented her providing good-enough parenting for Josiah during his early life.  

2.	The recovery seemed on the face of it to have come too late for Josiah and on 25 February 2009 he was placed with prospective adopters.  The mother was informed of this placement some two days later on 27 February.  Predictably, inevitably indeed, an application for adoption was issued by the adopters in the county court on 2 August 2009.  Perhaps unexpectedly on 26 January 2010 the social worker with responsibility received a telephone call from the mother in which she stated her desire to resume her natural role in Josiah's life.  The social worker of course explained to her the realities and two days later they met in order that the mother could hand over a birthday present for her son.  

3.	In the adoption proceedings it was incumbent on the county court to give the mother notice of the adoption hearing which would conclude the adoption proceedings.  Unfortunately, as a result of an error in the social work report, the county court gave notice to the wrong address and the letter was returned through the usual service, not known at this address.  Accordingly at the final hearing before HHJ Hallon on 24 March 2010 there was no attendance by the mother and the adoption order was duly made.  The mother's absence at that final stage in this long process can have caused little surprise to either the adopters or indeed to the judge because inevitably that would be the norm.  The final hearing of an adoption application arising out of long-dead care proceedings is generally not so much a listing in which the judge exercises a difficult discretionary decision but more something akin to a celebration of the culmination of the process and the benefits that it is intended to secure for the child during its future in a new family.

4.	On 1 April 2010 the mother through her solicitors applied for the revocation of the placement order to the court in which the care proceedings had taken place, namely the Inner London Family Proceedings Court.  That was reflective of erroneous judgment on the part of the mother's solicitors since her right to apply for the revocation of the placement order died with Josiah's placement on 25 February 2009.  The statutory right of application runs from the date of the making of the placement order to the date of placement but not beyond.  The mother's solicitors were informed of the making of the adoption order on 20 May 2010 and that led to the issue of an application to set aside the adoption order.  HHJ Hallon transferred that to the High Court on 20 July and directions on the application were made by Wood J on 17 August 2010.  The order in paragraph 1 lists the application for hearing on 2 September "to determine whether the adoption Order should be set aside and if so whether the Mother should be given leave to oppose an adoption application".

5.	On 2 September the judge sitting was Holman J.  He heard submissions over the course of the day, reserved his judgment and handed it down on the 8th.  The order that flowed from judgment set aside the adoption order, granted the mother permission to oppose the making of an adoption order and directed an early appointment in the Principal Registry for directions as to the future conduct of the adoption order application.   Those directions were given by the senior District Judge on 4 October, but of course subject to reconsideration at the conclusion of this appeal, since permission had been granted by Wilson LJ on 25 October.  

6.	The appeal is brought by the adopters who contend that the judge should not have granted permission to the mother to oppose the adoption order application.  In that they are supported by the local authority.  The case for the respondent is carried by Mr Douglass for the mother and all three counsel have made excellent submissions in support of their various positions.  Mr Chisholm for the adopters advances two grounds.  He, by ground one, submits that the judge conflated the two questions, the first whether the order made by HHJ Hallon should be set aside, the second whether the mother should be granted permission to oppose, so that his decision on the difficult question should the mother be granted permission was seen by him almost to flow from her success on the first question, whether the order below should be set aside for procedural error. 

7.	His second ground of appeal is a classic ground.  He says that the judge in exercising his discretion to grant permission misconducted the balancing exercise, alternatively was plainly wrong in his conclusion.  

8.	Mr Howling for the local authority supports and adopts those submissions.  He further asks this court to validate the judge's direction as to the consequence of setting aside an adoption order and finally he makes a complaint which is aired by Mr Chisholm but perhaps not with the same emphasis, namely that the judge failed to follow an approach which had been articulated by McFarlane J in the case of X and Y v a Local Authority [2009] 2 FLR 984.  

9.	Mr Douglass of course supports the judgment below and essentially urges on this court that the judge was right for the reasons which he gave and that in any event this court should be very slow to interfere with the exercise of discretion of the judge in the court of first instance.

10.	I turn to the essential material which is the judgment in the court below.  All counsel have paid tribute to the care which Holman J brought to this case and the clarity and lucidity of his judgment.  As I survey it there are a number of points which I wish to select for particular emphasis.  

11.	The first is that the judge, as he recorded in paragraph 3, was exercising the jurisdiction of a county court judge under CCR Order 37.  He was not sitting in an appellate capacity.  The case had been transferred for the determination of a judge of the Division, but a judge of the Division still sitting within the county court.  The judge thereafter, in paragraphs 6 to 11 inclusive, reviewed the essential facts with his characteristic thoroughness.  He then recorded the position of the mother and then embarked upon an important analysis of the legal position.  Within that analysis, between paragraph 17 and 19 inclusive, he considered the effect of the setting aside of an adoption order.  Here I cite in their entirety paragraphs 17 to 19:

“17. In this case an adoption order has indeed been made which is currently valid and effective, so by virtue of section 21(4) the placement order no longer ‘continued in force’ after 24 March 2010 and on that date, by virtue of section 46(2), the prior parental responsibility was ‘extinguished’.  If I considered that fro some reason (e.g. total want of jurisdiction) the existing adoption order is and always has been ‘void’ or a ‘nullity’, then it would logically and conceptually follow that the placement order had not ceased to continue in force, and the prior parental responsibility had not been extinguished.  But it is much less clear what happens if the currently valid adoption order is set aside as an exercise of discretion and, in truth, there is a statutory lacuna in that no statutory provision is made for the extremely rare and exceptional situation where a valid adoption order may later be set aside.

18. I had much helpful argument and submissions on the point from both Mr. Howling and from Mr. Michael Sherwin on behalf of the adopters.  During that argument we all considered various metaphors.  I have since concluded that the use of metaphors in a situation such as this can mislead.  We spoke during the hearing of whether a fire which has been ‘extinguished’ can reignite.  One might have spoken of the impossibility of unscrambling an egg, but another metaphor might be that of pieces on a chess board.  When the adoption order was made the pieces were rearranged, and some of them (e.g. the mother) were removed, but that does not make it impossible to reinstate them in their former positions.

19.  In the face of a statutory lacuna, but eschewing all metaphors, it seems to me permissible, pragmatic and most purposive to the statutory mechanism to hold, as I now do, that if the adoption order is set aside or ‘voided’ then the legal position would revert to what it was immediately preceding the making of that adoption order: viz, the placement order would again be in force; parental responsibility would again be held as it was at that date; and the other consequences of placement under sections 28, 29 and 34 of the Act would resume.”

12.	Mr Howling has said that there is an absence of authority on this question and it would be useful for the profession if this court were to support the analysis of Holman J.  As my Lord Munby LJ observed during argument, it is often for the simplest propositions that it is hardest to find authority. The consequence of setting aside an adoption order seems to me self evidently a reversion in law to the status quo ante and I would unhesitatingly support the views expressed by Holman J.   

13.	He then continues in his judgment to consider section 47 of the Act, which is the crucial Section with which this appeal is concerned.  It is the section which provides that an adoption order may not be made if the child has a parent unless one of three conditions is met.  It is section 47(5) and (7) with which we are principally concerned.  Section 47(5) provides that:

"A parent or guardian may not oppose the making of an adoption order under the second condition without the court’s leave."

Section 47(7) provides that:

"The court cannot give leave under subsection … (5) unless satisfied that there has been a change in circumstances since the consent of the parent or guardian was given or, as the case may be, the placement order was made."

14.	The judge then continued by applying those provisions to the facts and circumstances of this case in paragraphs 21 and 22 of his judgment:

“21. Applying these provisions to the facts and circumstances of this case, I conclude as follows.  If the current adoption order is set aside but no leave is given to the mother under section 47(5) to oppose the making of an adoption order, then she could not ‘oppose’ the rehearing of the revived or persisting adoption application and the adopters would be able to rely on the second condition under section 47(4).  Paragraph (a) would remain true.  Paragraph (b) would remain true: at the time J was placed with them he was placed under a placement order which was then subsisting.  Paragraph (c) would remain true, for unless she obtains leave the mother may not oppose the making of the adoption order.  If, however, the mother were to be given leave to oppose under section 47(5) (if the requirement under section 47(7) is satisfied) then the second condition would be displaced or cease to be met because she would oppose and paragraph (c) would no longer be satisfied.  At that point the adopters would have to rely instead on the first condition under section 47(2) and persuade the court that it should be satisfied that the mother’s consent should be dispensed with under paragraph (c) of that subsection, applying the test under section 52(1)(a), namely, that the welfare of the child requires the consent to be dispensed with.

22. In the light of this analysis Mr. Howling has persuaded me that, however great or unfair the injustice to the mother that she was not sent the required notice, it is in reality pointless to set aside the existing adoption order UNLESS I am persuaded that I should at the same time give leave to the mother under section 47(5) to oppose the making of an adoption order, which was the second issue listed before me by virtue of the second limb of paragraph 2 of the order of 17 August 2010 to which I have already referred.  It is pointless to set aside simpliciter without granting leave, for the only effect would be to prolong the delay, agony and disruption for the child and the considerable further expense (all to public funds) when all the mother could do would be to attend and in some way be heard upon the rehearing of the adoption application, but not oppose it.  On the other hand, if I do consider that the mother should even now have leave to oppose, then it would really inevitably follow (on the facts of this particular case) that I should exercise the discretion to set aside the existing order and order a rehearing.  If the court is satisfied to the appropriate test that there are grounds for defending, then it would be unjust to the mother and, indeed, contrary to the long term best interests of the child himself, to deny her the opportunity of defending which she would, on that hypothesis, have been given if she had been correctly served.”

15.	At the outset of paragraph 23 the judge posed himself what he rightly described as the key question, namely: should he grant the mother leave under section 47(5)?  In answering that question he first set out the circumstances of the case and within that review arrived at the ultimate conclusion that he should grant the mother leave.  In those paragraphs 24 to 28 inclusive the judge recites the factors that he sees as relevant to the discretion and conclusion and weighs them as he sees appropriately.

16.	Standing back for a moment, it seems to me that there are a number of fundamentals that directed or guided the outcome of the case.  The first is that the judge, sitting as he was in the county court, had two options.  Manifestly the order of HHJ Hallon was so procedurally flawed that it could not stand.  It was inevitable that it had to be set aside.  If he set that aside and granted the application for permission, then he must have directed a retrial of the adoption application, not, as before, seemingly unopposed, but at the future hearing fully opposed.  Alternatively, if he set aside the flawed order but refused the mother's application for permission, it fell to him, sitting as he was in the county court, to make the adoption order afresh, still an unopposed application.  Of course we know that the judge took the first of those two courses.  

17.	The second fundamental is to notice that under the statutory regime the natural parent who has lost a child to a care order and a placement order has the limited right to apply to set aside the care order and the placement order prior to placement.  So, turning to the chronology in this case, the mother's window of opportunity to apply to set aside the placement order existed between 16 June 2008 and 25 February 2009.  The making of the adoption application in the county court gave the mother a new opportunity, namely to apply for permission to oppose the adoption application.  However it cannot be too strongly emphasised that that is an absolute last ditch opportunity and it will only be in exceptionally rare circumstances that adoption orders will be set aside after the making of the care order, the making of the placement order, the placement of the child, and the issue of the adoption order application.  The statutory provision in section 47 has been considered by this court in the case of Re P [2007] 2 FLR 1069.  Ward LJ, giving the judgment of the court, of which I was a member, said at paragraph 55:

“Firstly, [judges] need to be satisfied on the facts of the case that there has been a change in circumstances since the order was made which is material, and of a nature and degree which is sufficient to open the door to a consideration by the court of the exercise of its discretion to give the parents leave to defend. If the court finds such a change in circumstances, the second stage is reached and the question of leave falls to be decided by the application of section 1 of the 2002 Act to the facts of the case. The paramount consideration of the court must be the child's welfare throughout his or her life."

18.	I interpolate that that passage was cited by Holman J and he faithfully applied it.  What Re P does not do is to give any particular guidance as to how the judge should determine the question raised at the second stage.  The guidance goes more to how the judge should decide the question raised at the first stage. So once an adoption application is challenged  by the natural parent at a very late stage, it is easy to see that to avert the progress, the completion of the progress to adoption, the applicant has to clear three fences which can be seen to be progressively higher fences.  The first is to establish the necessary change of circumstances.  The second is then to satisfy the court that, in the exercise of discretion, it would be right to grant permission.  The third and final stage would of course be to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child's life has travelled since the inception of the original public law care proceedings.  

19.	Applications for permission are encountered at many places throughout our justice system.  A permission application is a filter to exclude applications or appeals that do not merit fuller or further consideration.  There are many instances of the legal language in which this court has guided judges as to how the permission application should be determined.  

20.	I am in no doubt at all that where a judge exercises a broad discretion as to whether or not permission should be granted at the second stage under section 47(5), the judge must have great regard to the impact of the grant of permission on the child within the context of the adoptive family.  Of course each case will depend upon its particular facts.  The present case may be said to be a strong case in the sense that the mother had had no sight of Josiah since the summer of 2007.  Josiah had been placed for over a year.  Josiah had been told of and had reacted to the making of the adoption order in the spring.  To put all these seemingly solid steps into melting question would inevitably have a profoundly upsetting effect on the adopters and the child.  So such a consequence should surely not be contemplated unless the applicant for permission demonstrates prospects of success that are not just fanciful and not just measurable.  In my opinion they should have substance.  Perhaps, to borrow from the language of Lord Collins in another sphere, they should have solidity.

21.	In the detail of the judgment which I have analysed in outline it seems to me that Mr Chisholm has made good his first ground.  I am concerned that within paragraphs 21 and 22 there seems to be a judicial conclusion which the judge thought was urged on him by the local authority, that to grant the application to set aside was useless unless it led to the grant of the application for permission.  That seems to me to be a non sequitur.  The two isssues were perfectly distinct.  The mother's ground for setting aside was of the greatest strength.  Her application for the grant of permission was, by contrast, a glance short on merit and the judge in paragraph 22 seems to have misunderstood his role and power when he said it is pointless to set aside simpliciter without granting leave for the only effect would be to prolong the delay, agony and disruption for the child and the considerable further expense.

22.	That is not a correct analysis because, as my Lord Munby LJ pointed out in argument, the judge was sitting in the county court and granting the set aside application simpliciter would not lead to the dire consequences he envisaged.  It would simply lead to him himself granting the adoption orders, unopposed, effectively substituting a September date for a March date on the adoption order.

23.	I also think that Mr Chisholm and Mr Howling succeed in their second submission that the judge erred in his conduct of the balancing exercise, alternatively came to a conclusion that was plainly wrong.  The judge was very influenced by section 1(2) of the statute, which essentially points out that in any determination the paramount consideration is the welfare of the child. The judge fixed on the final phrase of the subsection, “throughout his life”, and when he, in paragraph 26, applied the Section 1(4) checklist, he singled out for particular consideration subsection (c), which is the likely effect on Josiah throughout his life of having ceased to be a member of the original family.  Here the judge speculated as follows:

"He made learn later, if not sooner, that when he was adopted his mother was not given any notice of the hearing or (save for what Ms. Bingham said on 26 January 2010) of the proceedings.  He may seek out his mother and his birth family.  He may bitterly regret that the possibility of his returning to live with his mother and in contact with his wider birth family was not properly investigated after she had kicked her drugs habit and rehabilitated."

24.	It seems to me that that is not only speculative but also unreal, because of course the grant of the application to set aside would reduce the procedural error to a historical footnote.  There would have been no lasting consequence of the failure to give notice once application to set aside had been successfully carried through.

25.	So the judge himself accepted that he had to recognise what in paragraph 26 he described as “very powerful current imperatives in favour of adoption against the much more speculative, but very important assessment of how Josiah may feel about being an adopted person for the whole of his adult life".  It does seem to me that the judge underweighed the "very powerful current imperatives" and overvalued what he properly described as the "much more speculative" aspects of the future.

26.	And then finally I comment on paragraph 28, where the judge said:

"…I have concluded that there is a real possibility (I do not say probability) that after due investigation, assessment and reconsideration a court will conclude that he can even now return to his mother and should not be adopted."

27.	This brings me back to the question that I have already considered, namely: what should be the approach to the judge who is holding this filter and determining whether or not to allow opposition to go forward at such a late stage?  The contrast that is drawn out by the submissions of counsel is between the language of the judge that I have just cited and the language of McFarlane J in the case of X and Y v a Local Authority where McFarlane J had said:

"On the information that is before the court it seems entirely improbable that this mother could persuade the court not only that there had been a change of circumstances sufficient to justify giving her leave to oppose the adoption but also that the court would hold that to give her leave was in the children's best interests (the test that has to be applied)…"

28.	The language of McFarlane J seems to me much more to reflect the stringent approach that I consider necessary.  The language of Holman J in this case seems to me to adopt altogether too permissive an approach.  So in my judgment the appellants succeed on both grounds.  The consequence is that the appeal will be allowed but permission granted by Holman J will be set aside, the order of the senior District Judge of 4 October will be set aside in its entirety and an adoption order will be granted unopposed bearing the date 2 or 8 September as though by the judge in the court below.

Lord Justice Munby:  

29.	I agree and in the circumstances there is nothing I can usefully add.

Mr Justice Coleridge:  

30.	I too agree.  I add this only for the mother’s sake.  No one can have anything but the profoundest sympathy for this mother who seems to have turned her life round in the course of the last two years and to have conquered her addiction to hard drugs.  If the court was in the business of rewarding parents for effort in these circumstances no doubt, she would succeed and retain the effect of the Holman J order.  However, whilst she has been sorting out her life, her child's life has inevitably moved on in her absence.  He has not seen her for three years and is now completely embedded in his new family.  To unravel the whole process through which the child and the adopters have passed since the child's original removal and placement is quite simply a horrendous prospect both from the point of view of the adopters but more importantly the child himself.  It seems to me that it is "entirely improbable", to adopt the words of McFarlane J in the case of X and Y v a Local Authority, that the mother would in the end succeed in overturning the adoption order much less the overall plan for adoption so that the child would return to live with her.  Even to embark on the process cannot be in his best interests, let alone actually to remove the child from his current home.  I doubt it is really in the mother’s interest either, merely having the effect of raising false hope for it to be dashed later.  In the circumstances I too would allow the appeal. 

Order: Appeal allowed