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Cite as: [2013] EWCA Civ 421

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		Neutral Citation Number: [2013] EWCA Civ 421
		Case No: B4/2012/2137

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CHELMSFORD COUNTY COURT
(HER HONOUR JUDGE LAURA HARRIS)

Royal Courts of Justice
Strand, London, WC2A 2LL

13th March 2013

B e f o r e :

LORD JUSTICE McFARLANE
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IN THE MATTER OF B (A CHILD)

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(DAR Transcript of
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The Applicant mother appeared in person.
The Respondents did not attend and were not represented.
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HTML VERSION OF JUDGMENT (APPROVED)
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Lord Justice McFarlane:

This is an application for permission to appeal brought by the mother of a young child, T, a boy, born on the 30 October 2010 and therefore now two and a half years of age. The mother has two older children, both girls, C, born on 12 November 2005, and H, born on 20 October 2009. It is plain from the short documents that I have read that this mother has had a very difficult early life, not assisted by the fact that she has apparently been diagnosed as suffering from bipolar affective disorder. In the past she tells me that there has been concern about her relationships, in particular with one man, and this had led in course to all three of her children being removed from her, two of them effectively at birth, and made the subject of care orders and orders for their eventual adoption. C and H have been adopted and live in the same adoptive home.

The application for permission to appeal relates to young T. T was before the court for determination in relation to the care order and placement for adoption order on 20 April 2011, and it is apparent there that HHJ Lochrane gave a long and careful judgment which concluded that T should be placed for adoption. T in fact had been placed with foster carers when he was only three days old and he has continued to live with them. They in due course applied to adopt him, and it was that process which came eventually before HHJ Harris on 11 July 2012. At that hearing the mother presented herself, acting in person, and sought the court's "permission to oppose" the adoption, although as any parent would in those circumstances she was plainly opposed to the adoption.

As a matter of law the court could not hear her and treat her as opposing the adoption unless leave was given to her under section 47(5) of the Adoption and Children Act 2002. The Act makes it plain under s 47(7) that the court can only grant leave to oppose if there has been a change in the circumstances since the placement for adoption order was made, and, secondly, case law establishes that even if a change in circumstances has taken place the court should only give permission to oppose the adoption if to do so is in the child's best interests. The mother, as any parent would in those circumstances, therefore faced a very substantial statutory hurdle in making her application.

The short judgment that we have from HHJ Harris indicates that the judge concluded that the mother had no prospect of establishing a change of circumstances and in any event the judge held that, because young T had been living with the adopters for so long and was so settled there, it was beyond contemplation that any court would now look to halt the adoption process and accede to the mother's opposition to it. Therefore the judge on both stages of the statutory test found against the mother and it is that determination by HHJ Harris that the mother now seeks to challenge by way of appeal. In doing so she has filed short grounds of appeal which effectively say that she has never done anything wrong, that the social workers removed T from her at that very, very early moment of the young child's life for no good reason and she has never asked for direct contact with the adopters but would like them to consider direct contact.

In the course of her address to me this morning, which will not have been easy for her being, as the phrase goes, well outside her comfort zone in a court, she has calmly and very clearly explained her case. First of all she says that her circumstances have changed out of all recognition from the way life was being lived by her and those around her when the decisions were made about the children at earlier stages. She is no longer in contact with the man who was seen to be a negative influence; she has held down a job; she has undertaken courses; she is very involved in the local church and feels supported by them; her mental health has been stable for a long time; she takes appropriately the medication as prescribed to her; and she is altogether a different person from the one that caused concern when HHJ Lochrane dealt with the case. Certainly, encountering her this morning, all that she says about herself fits with the way she seems to be in court.

However, the case plainly has a substantial history with a high level of concern. These orders for the adoption of her only children and their removal at birth indicate the highest level of state intervention and the making of the most draconian orders and indicate a level of background history that would be proportionate with that form of outcome. I do not have in front of me the judgment of HHJ Lochrane but HHJ Harris did, and HHJ Harris is in no manner hesitant at concluding that, despite what the mother was able to say to her about how her life had changed and developed, this was not "in any real sense" engaging with the concerns set out in the judgment of HHJ Lochrane. It therefore seems to me, albeit that I do not have a copy of HHJ Lochrane's judgment, that it would be very difficult to say that HHJ Harris was incorrect in coming to that conclusion. Further, I do agree with HHJ Harris that it is really beyond contemplation that the course of young T's life would be altered at that very late stage from the path of adoption on which he had been set.

On closer questioning of the mother she effectively says that she too finds it hard to contemplate now that T or any of her children would immediately come back to live with her, and what she really wants above all is a far more modest outcome but one that she would clearly value and cherish. It is to have some form of very limited direct contact with all three children. She tells me that the two girls and young T are in fact now having some form of direct contact with each other and she would simply like to be part of that in some way. If she has changed to the degree that she has and if she has some insight, which I have no knowledge of one way or the other, to the need to be supportive in relation to any direct contact, it might be that the local authority would entertain, either now or in some time to come, some very limited direct contact. But that is not a matter for me. I am here to decide whether she has permission to appeal against the refusal to allow her to oppose the adoption.

The way forward for her is to present herself in a measured and calm way to the social workers and ask whether there is some prospect of her being included in some form of direct contact. It might be to start with that she might meet the adopters and for them with their own eyes to see how she is now and for matters to move forward. Although I am not encouraging this, it is open to her to ask for permission to apply for a contact order, but that would seem to be well down the line. The better way forward is for her to make her own approach to the local authority and see whether, slowly, the prospect of her being more involved in contact is developed. That is all I will say about that matter.

So far as the application for permission to appeal is concerned, I can only grant it if it has a reasonable prospect of success. Sadly for the mother I am very clear that it does not. HHJ Harris is plain in the way she approached the case. She approached it correctly as a matter of law and, on the information that she had, it seems to me that such positive steps that the mother was able to identify came nowhere near to reducing the high level of concern that had existed.

A further matter, which does not influence my decision to refuse permission to appeal, is this. The judge made her decision on 11 July 2012 and here we are today on 11 March 2013. The mother relatively promptly issued her application for permission to appeal on 15 August, but the transcript from the judge only arrived with the court sometime, I think, in February. I asked the mother how this was and she says that until December it was down to her to get the transcript, because she was in employment, and it just did not happen. I asked her why that was and she said that really she was so busy working and involved in other matters that she was not able to address the issue. That is, to put it in the most neutral of terms, highly regrettable. If an effective appeal was to be mounted against the judge's decision it had to be heard in the summer of last year, not now, some nine months later. That is particularly the case because it seems that the judge actually made the adoption order there and then on 11 July. That is not a step that should have been undertaken on that day. The judge should have postponed making the adoption order so that the mother had limited time to come to this court, if she wished to, to seek permission to appeal. I would therefore criticise the court in Chelmsford for not allowing a window of time between refusing permission to oppose and granting the adoption order.

That is a lesson for the future for other cases. It is academic, sadly, for this mother in this case, because, for the reasons I have given, I would refuse permission to appeal.

Order: Application refused