Family Law Week: M (A Child) [2010] EWCA Civ 1160


Family Law Week: M (A Child) [2010] EWCA Civ 1160.

Home > Judgments > 2010 archive

M (A Child) [2010] EWCA Civ 1160

Application by the mother of a young child (2 years 4 months) seeking permission to appeal a County Court order dismissing her application for leave to oppose the adoption of that child. Permission to appeal granted and the adoption proceedings stayed.

The application was granted because the mother had made considerable advances and improvement in her life, sufficient to satisfy the judge that she had overcome the first limb of the twofold test laid down in Re: P (a Child) (Adoption Order: Leave to Oppose Making of Adoption Order) [2007] EWCA Civ 616.

With the change of circumstances established, the next question was: how to apply the welfare test which then has to be satisfied?  In considering how to answer this point the court stated that there were essentially two points that merit argument: first, whether on the facts known at the time of this application for leave to oppose, adoption will be in the best interests of the child?  Or second is it in the best interests of the child that a not hopeless case for opposition be heard?

Ward LJ held that the latter is the proper approach to adopt in the circumstances of this case, because to ask the former question is perhaps to prejudge the adoption question and not therefore give a fair right of hearing to the mother opposing adoption.  This was the appropriate course when there is some realistic prospect of success in much the same way as a decision as to grant permission or not.

The court went on to hold that the second ground of attack against the judgment is against the perfunctory way in which the judge approached the exercise of discretion.  Ward LJ stated that the Act requires the court to have regard to a list of factors and, whilst it is not always imperative that the checklist be mechanically considered by a judge, it is not a bad thing for the judge to go through each and every factor per      Re: EH (ex parte London Borough) [2010] EWCA Civ 344.  The court continued by stating that the judge had regard only to the child’s particular need for stability and did not sufficiently weigh the likely effect on the child throughout her life of having ceased to be a member of the original family and to become an adopted person.  In addition, the judge did not adequately have regard to the fact that the harm was in a relationship (between the mother and her then partner) which had come to an end and that change had been effected, and did not have regard to the relationship the child had or was capable of having with a young mother making considerable strides to improve herself.

Summary by Richard Tambling,  barrister, 1 Garden Court

_______________________

Case No: B4/2010/2124
Neutral Citation Number: [2010] EWCA Civ 1160
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BLACKBURN COUNTY COURT
(HIS HONOUR JUDGE BOOTH)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 28th September 2010

Before:

LORD JUSTICE WARD

– – – – – – – – – – – – – – – – – – – – –

IN THE MATTER OF M (a Child)

– – – – – – – – – – – – – – – – – – – – –

(DAR Transcript of
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No:  020 7404 1400  Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

– – – – – – – – – – – – – – – – – – – – –

Ms Eleanor Platt QC and Mr Zimran Samuel (instructed by Stephensons Solicitors) appeared on behalf of the Appellant mother.

The Respondents did not appear and were not represented.

– – – – – – – – – – – – – – – – – – – – –

Judgment
(As Approved by the Court)

Crown Copyright©

Lord Justice Ward:
1. This is an application by the mother of a young child, now two years and four months old, seeking permission to appeal the order made by HHJ Booth in the Blackburn County Court dismissing the mother’s application for leave to oppose the adoption of that child.  The adoption hearing is to take place on Thursday next, 30 September.  I am going to give permission to appeal and I am therefore going to stay the adoption proceedings and the court should be notified of that as soon as possible.

2. The reasons for my coming to that decision are not the appearance on behalf of the mother of Ms Eleanor Platt QC, great though the pleasure is to have her here and great though the surprise was to see her; but she has persuaded me, in her inimitable way, that there is a good ground for argument.

3. It runs something like this.  The child was placed in care at virtually birth mainly because of the unsatisfactory nature of the relationship this very young mother then had with a 40-something year old man, who was deeply unsatisfactory.  Since then, the care order having been made in May 2009, the mother has made considerable advances and improvements in her life, the detail of which I need not enumerate, but which improvements were sufficient to satisfy the judge that she had overcome the first limb of the twofold test this court has laid down in the case of Re: P (a Child) (Adoption Order: Leave to Oppose Making of Adoption Order) [2007] All ER page 334, [2007] EWCA Civ 616.

4. So she has established the change of circumstance.  The question then is: how do you apply the welfare test which then has to be satisfied?  And there are essentially two points that merit argument.  The first, which I may express less eloquently than Ms Platt, is this.  Is the test to be applied this: whether on the facts known at the time of this application for leave to oppose adoption will be in the best interests of the child?  Or is the question: Is it in the best interests of the child that a not hopeless case for opposition be heard?  It seems to me arguable that the latter is the proper approach to adopt in these circumstances, because to ask the former question is perhaps to prejudge the adoption question and not therefore give a fair right of hearing to the mother opposing adoption.

5. Obviously all cases will be different, but an application to oppose should involve an exercise of assessing to some extent the prospects of success of the opposition.  But it should be viewed more perhaps — and this is the issue the court will have to decide — in terms of whether this is an utterly hopeless case, or whether this is a case which is at least arguable in the sense that, even if there is not a better than even chance of success, there is some realistic prospect of success in much the same way as we decide whether to grant permission or not.

6. But the second ground of attack against the judgment is against the perfunctory –that is my word, not Ms Platt’s word — way in which the judge approached the exercise of discretion.  The Act requires the court to have regard to a list of factors and, whilst it is not always imperative that the checklist be mechanically considered by a judge, it is not a bad thing for the judge to go through each and every factor, for the reasons adumbrated by this court in Re: EH (ex parte London Borough) [2010] EWCA Civ 344.  Here it is arguable that the judge had regard only to the child’s particular need for stability and did not sufficiently weigh the likely effect on the child throughout her life — important words, perhaps — of having ceased to be a member of the original family and to become an adopted person.  The judge did not adequately have regard to the fact that the harm was in a relationship which had come to an end and that change had been effected, and did not have regard to the relationship the child had or was capable of having with a young mother making considerable strides to improve herself.

7. So on both those grounds there is perhaps a good ground for inviting this court to consider the matter, and I give permission accordingly.

Order: Application granted.


Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s