In this post, I am going to explain two recent decisions by the Court of Appeal about adoption. These are Re Y – which is about leave to oppose (I will explain), and Re JL which is about leave to revoke a placement order (I really will explain). These decisions are nothing special in terms of their wider relevance – they do not change the law in a landmark way, nor are they ‘disruptive judgments’. They are, however, useful in understanding what the law requires of local authorities and the courts in deciding whether a child should be adopted.
I will first explain a little about what we mean by adoption and the how adoption law and process works as a basis to digest these useful cases properly and a useful introduction if you are unfamiliar with adoption.
What is adoption?
Adoption, in a nutshell, is a process of identifying and placing a child in a forever family different from their birth family. In English law we give adoption a specific meaning – that is the court-controlled process of cutting all legal ties between a parent and their natural child, and allowing a child to be completely integrated in a previously unrelated family. Adoption is a completely legal concept to deal with an issue that has happened since the dawn of time: that is children being looked after and integrated into families that don’t share their blood. Think David Copperfield or Jane Eyre. Of course, I would name some more modern examples, but this requires them to be born before adoption was ‘a thing’, and my knowledge of popular culture to be any more than abysmal.
Adoption happens by the making of an ‘Adoption Order’ under the Adoption and Children Act 2002. The effect of an adoption order is a ‘total legal transplant’ – the child is treated as if they are born to the adopted parents in every way. Adoption is sometimes sought by a local authority at the end of care proceedings – by that I mean when a local authority has brought a case to court because they are worried about children being harmed by their parents, and they have assessed the parents as being unable to keep their children safe. Adoption will always be a plan of last resort; there cannot be any other alternatives or family members who are able to care. In short, and as was said famously in a case in 2013, placement for adoption should only be ordered, against the will of parents, where ‘nothing else will do’ after a detailed look at and analysis of the potential placement options. I say placement options; by this I mean realistic options and not ones that can be ‘legitimately be discarded’. The adoption must be in the best interests of the child throughout his life. Once an Adoption Order is made, it is virtually unchallengeable save for by appeal.
The extreme language of the adoption cases underlines the fundamental right to family and private life that we all enjoy. Any interference with our human rights is a serious business, and the right to family life can therefore only be interfered with if it is necessary to do so. Don’t forget, adoption is an extreme intervention because it deprives the child and parent of their legal relationship with each other. There therefore needs to be a high hurdle to be leapt over before the court will approve this plan.
How have we got here?
Adoption was originally a solution to the legal problem that children were being looked after in families they didn’t ‘belong’ to. Since the 1920s, adoption has become less about formalising existing arrangements and more about providing a home and a family to children whose parents are unable or unwilling to care for them, and a service to those who wish to be parents. In England and Wales we have contested adoption – this is sometimes referred to as ‘forced’ or ‘non-consensual’ adoption, and refers to the ability of the court to order that a child be adopted without the consent of the child’s parents. Although it is said that the UK is an outlier in Europe in that non-consensual adoption is a feature of our legal system, this has largely been disproved as a myth. Nevertheless, non-consensual adoption is more widely used in England and Wales than in many other European jurisdictions. In fact, the present government seems to be very keen to encourage the use of adoption, and to increase the pool of potential adopters – see the latest missive from Education Secretary Gavin Williamson last week on the importance of breaking down barriers to adoption, although I will refrain from further comment.
Contested adoption means that a child can, with the approval of an independent court, be placed outside of their birth family and be adopted by another family against the will of the parents. The peak year for adoption appears to be 1968, where nearly 25,000 adoption orders were made. The numbers in 2019 were a more modest 3570 for a number of reasons: social attitudes to young, unmarried women being single parents, the permissibility of abortion, stepparents being allowed to have parental rights without adopting and connected carers having special legal status with Special Guardianship. Special Guardianship Order numbers have overtaken adoption significantly in recent years.
There are problems with the adoption system in this country, not least as Harris-Short (who has written provocatively about adoption) argued in 2001 – prior to Parliament enacting the Adoption and Children Act 2002 that – the demand of adopters to take on ‘trouble-free’ children does not satisfy the demand for children, leaving a lack of adopters willing to take on the vast majority of potential adoptees who have challenging backgrounds and complex needs. The lack of post-adoption support is frequently criticised. As Doughty highlighted, it is now known that ‘assuming every adoptive family could be neatly reconfigured into a functioning family system was a myth’, but a lack of support post-adoption can leave adoptive carers with feelings of guilt for asking for support or assistance. [Sorry paywalls apply to both articles].
Another issue is that of contact; whilst the law technically accommodates what has come to be known as ‘open adoption’ – that is the adoption of a child by another family whilst maintaining contact with the birth family – it is a power which is exceptionally rarely used (I only know of one reported case where an order was made for post-adoption contact). This is in spite of a growing body of research noting the short-term benefits of post-adoption contact, and the value to the child in helping their adoptive placement last.
On that note, welcome to the minefield that is the law of adoption.
What is the process?
I am going to focus on the cases where adoption is used as part of the child protection process, and not cases where the parent might relinquish a baby on their birth.
First you will have care proceedings. Care proceedings will come about where a local authority or the NSPCC are worried about children being in some way harmed by the parenting they are receiving in their home environment. If the situation becomes more serious and other avenues have not worked – such as implementing a ‘Child in Need’ plan or ‘Child Protection’ – it will bring the case to court. In more serious cases, the local authority might ask that a child is placed in their care. Being in care is not the same as living foster care, but an (interim) care order gives the local authority the ability to make decisions about the child alongside the parents.
During these proceedings, parents will be assessed. The local authority has the duty to assess the parents but sometimes this will be done by an independent social worker if the local authority doesn’t have the resources ‘in-house’, or if the local authority’s independence is compromised in some way. Family members will be looked at too as part of the need to assess all placement options. The law in England and Wales is clear in terms of where children should live as a result of this process: firstly, with their parents; if not with their family; if not with a friend or some other connected person; and if not then in foster care or in local authority provided accommodation.
If the parents’ assessment is negative and there are no family members who are willing or able to look after the child, it will be left to the local authority to find somewhere for the child to live. This is always subject to the control of the court – sometimes the local authority negatively assesses a parent, but the judge takes a different view. I am talking in general terms. The options here tend to be foster care or – if the child is younger – adoption. The court will weigh up the pros and cons of adoption against the other options and form a view. If the court decides that a child should be placed for adoption, and in doing so that there are no other realistic alternatives, the judge will make a Placement Order.
A placement order authorises a local authority (acting as an adoption agency) to identify an adoptive family for the child and place the child with the family they have found. This does not mean that the child is now adopted – just that they are placed with potential adopters. To become adopted the adopters – who are entitled to anonymity – have to apply for an
The birth parents will be told about the application for an Adoption Order but they can’t automatically contest the order. To legally oppose the order, the birth parents have to be given Leave to Oppose. Leave is an odd word; it’s mainly used by lawyers and people in the army to mean a ‘formal’ kind of permission. The root comes a curious mix of German and old Saxon to mean a formal type of approval. When we say leave, we mean to do something with the permission of the court.
Obtaining Leave to Oppose will involve a hearing where the judge will look at all of the evidence and decide firstly whether there has been a change in circumstances ‘of a sufficient nature and degree’, and if so, secondly whether the court should give permission to the parents to oppose based on the child’s welfare. If leave to oppose is given, there will be a final hearing where the birth parents can contest the adoption fully. If leave to oppose is not given, there will be a final hearing, but the birth parents will not be entitled to make representations. This effectively means that leave to oppose is the last chance for the birth parents to stop an adoption they do not agree with. The court of appeal has on several occasions made clear that the bar should not be set too high so as to make it impossible for a parent to show that they have made sufficient changes. In my experience, the giving of leave is rare.
And, of course, even if the court gives leave it is no guarantee that the adoption order would be successfully opposed, in much the same way that you might pass the X-factor audition, fly all the way to LA, only to be sent home the day after. Again the court can only make the order where ‘nothing else will do’, but the court of appeal has been clear that this does not create a presumption in favour of the birth family, and simply saying nothing else will do “is meaningless and potentially dangerous if… divorced from… an overall evaluation of a child’s welfare’. As in all applications for an adoption order a child will have been placed for some time, and so the court must take into account the effect of removing the child from that placement or creating a disruption to the placement with the adopters. Many have argued that this more holistic focus on welfare with no starting point in terms of birth family relationships creates an insurmountable hurdle for birth parents wishing to challenge an adoption as they are unlikely to be a more attractive placement option when compared to the professionally approved adopters with whom a child has settled. I have never seen this happen, although I’ve not been around all that long.
Sometimes a placement will not be found for the child or there will be a change in circumstances. In that case, there may be an application to Revoke the Placement Order, or for ‘revocation’. Revocation means to ‘take back’. This may be made by the local authority or on behalf of the child as of right, but if it is made by any other person needs permission. An application can only be made if a child has not been placed for adoption.
This is important to set these cases up against that backdrop.
Y is a little boy of nearly three years. It is an appeal of a decision of a judge who gave Y’s parents – who are profoundly deaf – permission to oppose the application for an adoption order.
A local authority started care proceedings for Y and Y’s older half-siblings in March 2018 after he was found to have a series of broken bones, including his ribs and both main bones in each of his legs. He was covered in bruises. Y and his siblings were removed into temporary foster care. The parents said that Y’s injuries were caused by his father, and the judge also made findings that mother knew about some of the injuries and had failed to protect Y from the harm his father was causing him. In July 2019 when the court considered what should happen to each of the children, the Court made an order placing Y for adoption. At this time, Y’s parents accepted that Y could not return to their care, and there were no family members viable to care for Y.
As the local authority began looking for an adoptive placement for Y, the foster carers whom he had stayed with since March 2018 decided that they wished to adopt him. The local authority – along with the foster carers – began the process of applying for an adoption order. In the meantime, the parents applied for permission for leave to oppose the adoption. The judge allowed submissions to be made by the parties in writing, and gave permission to the parents on 29 June 2020.
In making the original decision, the judge took account of all the changes the parents had made. They had moved home, their relationship was no longer an abusive one, both had accessed treatment for their own problems including medication for low mood and had cut ties with other, risky members of the family. On balance, and mindful that the bar should not be set too high, the judge found that parents had made sufficient changes so that they should be given permission to oppose. The local authority appealed.
On appeal, the Court of Appeal held that the judge had identified the correct legal principles and applied them, as most recently stated by Jackson LJ in the new and helpfully consolidating case of Re W (A Child: Leave to Oppose Adoption)  EWCA Civ 16. In terms of the Judge’s conclusions, the Court held in that the judge’s own prior dealings with the case and knowledge of the family made him uniquely placed to deal with this case now:
“Given the judge’s experience of the case and deep understanding of issues, I do not for my part think that it can be said by this Court that he was wrong to reach that conclusion [that the evidence was sufficient to show a change of circumstances]. I accept the submission that, having conducted contested fact-finding and welfare hearings in the care proceedings, the judge was, as Ms Ecob put it on behalf of the father, uniquely placed to evaluate whether the changes of circumstances asserted by the parents were sufficient. It is plain from the judgments in the care proceedings that he had a deep and detailed understanding of the history of this difficult and sensitive case, of the characters and conduct of the parents, and the needs of this little boy.
When he turned to the second limb of the two-stage process, the judge emphasised that what he was evaluating was not the prospect of Y being returned to the parents’ care but, rather, the prospect of the parents successfully opposing the making of the adoption order. His assessment of the second limb in that context as set out in paragraph 33 of his judgment seems to me to be a careful and balanced analysis. In short, he concluded that, having identified changes in circumstances sufficient to open the door, it was in the interests of Y’s welfare throughout his life to have another look at the question whether the need to preserve family relationships, in particular sibling relationships, continues to be outweighed by the greater permanency which adoption would bring.”
The Court of Appeal acknowledged that not every judge would have made this decision. This goes to the heart of what the court’s call the discretion question – that the trial judge will always have a wide ambit of discretion which, as long as the law is properly applied to the facts, will ensure that the judge is entitled to make their own decision. He was better placed than anyone. The Court also reminded parents that just because leave to oppose had been granted did not mean that they would be successful in opposing the adoption.
Another unusual feature of this case was the participation of both parents at a video hearing in spite of being profoundly deaf. The parents had the benefit of sign language interpreters and intermediaries. The Court confirmed that when dealing with cases involving disabled litigants, the guidance in Re C (see my post on this case here) applies and careful thought should be given to ensure they can participate properly in the case.
For Y, there will now be a final hearing on the application for an adoption order. The judge will listen to evidence and argument and decide whether to grant an adoption order. The court at that hearing will decide this with reference to Y’s welfare throughout his life. If the final decision for Y is reported, I will update this post with the outcome.
J was a young child of just 21 months. This case was an appeal of a decision of a judge to dismiss an application by JL’s grandmother to revoke a placement order made earlier on in the year.
The local authority had been involved with J’s mother and his siblings since 2012, and concerns about domestic abuse between J’s mother and various partners led to J being subject to care proceedings by a local authority. J was placed in foster care at birth. J’s siblings were also made the subject of care proceedings and they were placed with various family members. The carer for two of the siblings was Mrs B. Mrs B is approved as a local authority foster carer.
Several other people were assessed to care for J to no avail. The assessments of his parents and various family members and friends were all negative. At the time, Mrs B could not care for J as she did not have the house room for both J and his siblings. At the conclusion of care proceedings, the older siblings were to remain with their respective family members, whilst the Court found that there were no viable alternatives for J and therefore he was to be placed for adoption. Mrs B did not take part in the hearing and had decided not to put herself forward to care for J; the judge at trial called her position “unenviable” and described her decision as “very difficult”. The judge made a care order and a placement order.
A few months after the placement order was made, Mrs B asked the court for leave to revoke the placement order as J had not yet been placed for adoption. She said that she could now look after J and that she had been hoping that somebody else would have been able to. Mrs B had managed to upgrade her accommodation so she would now have room for J. She said she had intended to make the application for revocation sooner but had understood that J’s mother might be trying to appeal.
Mrs B’s application for revocation was supported by J’s CAFCASS guardian but opposed by the local authority. In a report, the guardian was clear that Mrs B had undergone a change in circumstances. The judge disagreed and dismissed the application for revocation. The judge:
“set out the history and correctly identified the legal principles to be applied when considering an application for leave to apply to revoke a placement order by reference to section 24(3) of the Adoption and Children Act 2002 and the relevant case law. He summarised those principles by reference to the established two-stage test, namely (1) whether there had been a change in circumstances since the placement order was made in February 2020 and, if so (2) whether, exercising his discretion, he should grant leave having regard to J’s welfare and the prospects of the application succeeding. He observed that Mrs B had been “caring admirably” for the two boys and described them as “thriving” in her care. He concluded, however, that there had been no change in circumstances since the making of the placement order. He added that, if he was wrong in that conclusion, he was
“entirely satisfied that any exercise of discretion must lead to the application for permission being refused because of delay, lack of prospects of success and holistic welfare considerations”.
He pointed out that J had been the subject of care proceedings throughout his 18 months’ life, far longer than could have been reasonably contemplated at the start of the proceedings, and that any further delay or protracted decision-making would be contrary to his welfare. He noted that no details of prospective assessments of Mrs B’s capacity to care for J had been produced, should she be granted leave to apply for a special guardianship order. Given the likely delays in obtaining such an assessment, exacerbated by the pandemic crisis, he concluded that any revocation hearing would not be determined until the early months of 2021. The judge recognised that he was disagreeing with the guardian’s conclusion but stated that her analysis had been directed at a reassessment of J’s best interests, that she had not asked the right questions, and that she had mistakenly conducted her analysis on the basis that the application was for leave to appeal rather than leave to apply to revoke the placement order.”
Mrs B appealed. It was argued on her behalf that the judge had made the wrong decision and a change in circumstances was sufficient to ‘open the door’ to revocation. When one considered the opportunity to be brought up in his birth family, it was argued that too much weight was given to ‘finality’. The CAFCASS guardian supported the appeal, commenting that mistakenly referring to an ‘appeal’ in her original report did not materially change her recommendations. The local authority opposed the appeal and argued, mainly, that the timescales involved in assessing Mrs B to care for J were too great. They argued that her relationship with J was limited and that J’s presence may be disruptive to his siblings in the home.
The Court of Appeal allowed the appeal. They said this was a clear example of a case where there had been sufficient change and the prospect of J being brought up in his natural family should not be dismissed. This would allow J to be in touch with his birth mother and siblings, also.
The Court reminded us:
“The law requires children where possible to be brought up in their natural families. Adoption is a measure of last resort. Mrs B is by all accounts caring for the two boys very well, notwithstanding their difficulties in respect of which she has understandably sought support from the local authority. In those circumstances, it must be in J’s interests at least to explore the possibility of being placed in her care.”
The Court also commented that whilst delay should be considered in every case, the delay in this case would only add six months of delay to a child who was not even two. Whilst it may be slightly harder for J to settle in an adoptive placement if the assessment of Mrs B is negative, the “disadvantages of delay in this case are manifestly outweighed by the potential advantage of securing for J a placement within his family and the prospect of a close and lifelong relationship with his brothers.”
English law treats adoption as a measure of last resort. These two cases show the law, properly applied, working to reinforce this important principle. Adoption is the ultimate interference in the human right of parent and child to a private and family life; these cases underline the importance at every stage of ensuring that all of the alternatives are explored before the court approves the irreversible cutting of legal ties between a child and their birth family, with all the consequences that this may bring.
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