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Who has the burden of proof?

Posted on May 25, 2015 by suesspiciousminds

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  https://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

https://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

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No wonder you’re late – why this watch is exactly two days slow

Posted on October 19, 2013 by suesspiciousminds

Yet more quest for perfection from the President. Mark this well.

 

Re W (A Child) 2013

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1177.html

 

There are two big principles in this Court of Appeal case, in which the President gives the lead judgment.  The first is about compliance with Court orders. The President is not happy.

 

    1. In his judgment in Re H, Judge Barclay drew attention to the fact that although he had made an order on 8 April 2013 requiring the local authority to file and serve on the parents short position statements regarding each child and any objections to leave to oppose being granted, not less than five working days before the hearing, no such position statement had been filed. Unsurprisingly the parents complained that they had no way of knowing what the local authority’s position was, save that there was a blanket objection to leave being granted. Ms Pitts went away to draft a position statement and the parents and their “experienced” representatives (Judge Barclay’s word) were then given time – three quarters of an hour or so – to consider what the local authority was saying. Ms Pitts tells us that further time was not sought. Judge Barclay, as he tells us in his judgment, considered that they had had “sufficient” time.

 

    1. That the parents and their representatives should have been put in this position is quite deplorable. It is, unhappily, symptomatic of a deeply rooted culture in the family courts which, however long established, will no longer be tolerated. It is something of which I complained almost thirteen years ago: see Re S (Ex Parte Orders) [2001] 1 FLR 308. Perhaps what I say as President will carry more weight than what I said when the junior puisne.

 

    1. I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders: see Re W (A Child) [2013] EWCA Civ 1227, para 74.

 

    1. The law is clear. As Romer LJ said in Hadkinson v Hadkinson [1952] P 285, 288, in a passage endorsed by the Privy Council in Isaacs v Robertson [1985] AC 97, 101:

 

“It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.”

For present purposes that principle applies as much to orders by way of interlocutory case management directions as to any other species of order. The court is entitled to expect – and from now on family courts will demand – strict compliance with all such orders. Non-compliance with orders should be expected to have and will usually have a consequence.

    1. Let me spell it out. An order that something is to be done by 4 pm on Friday, is an order to do that thing by 4 pm on Friday, not by 4.21 pm on Friday let alone by 3.01 pm the following Monday or sometime later the following week. A person who finds himself unable to comply timeously with his obligations under an order should apply for an extension of time before the time for compliance has expired. It is simply not acceptable to put forward as an explanation for non-compliance with an order the burden of other work. If the time allowed for compliance with an order turns out to be inadequate the remedy is either to apply to the court for an extension of time or to pass the task to someone else who has available the time in which to do it.

 

  1. Non-compliance with an order, any order, by anyone is bad enough. It is a particularly serious matter if the defaulter is a public body such as a local authority. And it is also a particularly serious matter if the order goes to something as vitally important as Judge Barclay’s order did in this case: the right of a parent facing the permanent loss of their child to know what case is being mounted against them by a public authority.

 

Yes, you read that right – if the order says the document should be filed by 4pm, the party should APPLY FOR AN EXTENSION OF TIME before that deadline if it is going to be in at 4.21pm.

Does anyone’s experience of Courts suggest that such an application will be dealt with in time?

 

Anyway, next, and more important point.

This is the first case post Re B-S of an application for leave to oppose an adoption order. You will recall that in Re B-S, the Court of Appeal felt that the test had become too high, perhaps even insurmountable for parents and a recalibration was necessary.  On the facts of Re B-S, the Judge had got it right (or at least not got it wrong) and the refusal was upheld.  In this one, it wasn’t.

    1. The judgment must make clear that the judge has the two stage process in mind. There are two questions (Re B-S, para 73): Has there been a change in circumstances? If the answer to the first question is no, that is the end of the matter. If the answer is yes, then the second question is, should leave to oppose be given?

 

    1. In addressing the second question, the judge must first consider and evaluate the parent’s ultimate prospects of success if given leave to oppose. The key issue here (Re B-S, para 59) is whether the parent’s prospects of success are more than just fanciful, whether they have solidity. If the answer to that question is no, that will be the end of the matter. It would not merely be a waste of time and resources to allow a contested application in such circumstances; it would also give false hope to the parents and cause undue anxiety and concern to the prospective adopted parents. The reader of the judgment must be able to see that the judge has grappled with this issue and must be able to understand, at least in essentials, what the judge’s view is and why the judge has come to his conclusion. The mere fact that the judge does not use the words “solid” or “solidity” will not, without more, mean that an appeal is likely to succeed, for example, if the judge uses language, whatever it may be, which shows that the parent fails to meet the test. So if a judge, as Parker J did in Re B-S, adopts McFarlane J’s words (see Re B-S, para 58) and describes the prospect of parental success as being “entirely improbable” that will suffice, as indeed it did in Re B-S itself, always assuming that the judge’s conclusion is adequately explained in the judgment.

 

    1. In evaluating the parent’s ultimate prospects of success if given leave to oppose, the judge has to remember that the child’s welfare is paramount and must consider the child’s welfare throughout his life. In evaluating what the child’s welfare demands the judge will bear in mind what has happened in the past, the current state of affairs and what will or may happen in future. There will be cases, perhaps many cases, where, despite the change in circumstances, the demands of the child’s welfare are such as to lead the judge to the conclusion that the parent’s prospects of success lack solidity. Re B-S is a clear and telling example; so earlier was Re C (A Child) [2013] EWCA Civ 431.

 

    1. If the parent is able to demonstrate solid prospects of success, the focus of the second stage of the process narrows very significantly. The court must ask whether the welfare of the child will be so adversely affected by an opposed, in contrast to an unopposed, application that leave to oppose should be refused. This is unlikely to be the situation in most cases given that the court has, ex hypothesi, already concluded that the child’s welfare might ultimately best be served by refusing to make an order for adoption. To repeat what I said in Re B-S (para 74(iii)):

 

“Once he or she has got to the point of concluding that there has been a change of circumstances and that the parent has solid grounds for seeking leave, the judge must consider very carefully indeed whether the child’s welfare really does necessitate the refusal of leave. The judge must keep at the forefront of his mind the teaching of Re B, in particular that adoption is the “last resort” and only permissible if “nothing else will do”.”

    1. It is surely a very strong thing to say to the child – and this, truth be told, is what is being said if the parent’s application for leave to oppose is dismissed at this final stage of the process – that, despite your parent having a solid prospect of preventing you being adopted, you (the child) are nonetheless to be denied that possibility because we think that it is in your interests to prevent your parent even being allowed to try and make good that case.

 

    1. I emphasise in this connection the important points I made in Re B-S (paras 74(viii), (ix)): that judges must be careful not to attach undue weight either to the short term consequences for the child if leave to oppose is given or to the argument that leave to oppose should be refused because of the adverse impact on the prospective adopters, and thus on the child, of their having to pursue a contested adoption application.

 

  1. There is one final important matter that has to be borne in mind. The judge hearing a parent’s application under section 47(5) for leave to oppose is concerned only with the first and second of the three stages identified by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose) [2010] EWCA Civ 1535, [2011] 1 FLR 2153, para 18 (see Re B-S, paras 55-56). The third stage arises at the final adoption hearing and only if the parent has been given leave to oppose. As Thorpe LJ described it, the parent’s task at that stage is “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.” That issue is relevant at the prior stage, when the court is considering whether or not to give leave to oppose under section 47(5), only insofar as it illuminates the nature of the ultimate issue in relation to which the parent has to be able to demonstrate the solid prospects of success necessary to justify the giving of leave.

 

The Court of Appeal then grapple with two issues – on such an appeal, should they grant Leave to oppose themselves, or just send it back for re-hearing. And secondly, given the timing of leave to oppose applications and that adoption orders could easily be made before the appeal takes place, what should happen to the adoption order?

The first relates to the form of order. Having set aside the judge’s order refusing leave to oppose, should this court go on to give leave itself, or should that question be remitted for determination by the judge? If the proper outcome is clear on the papers, then it may be appropriate for this court to decide the issue. But if the matter is not clear then it must be remitted to the judge.

There is no doubt that the appellants have locus – status – to appeal against the adoption orders even though they were not parties to the proceedings at the time the orders were made: Re C, para 43. Recognising that the law sets a very high bar against any challenge to an adoption order if lawfully and properly made, the circumstances with which we are here faced demand as a necessary consequence of the appeals being allowed that the adoption orders be set aside. The point is short and simple. In each case the adoption order has been made on an application which, despite the protests of the parent, has proceeded unopposed and in circumstances where the necessary pre-requisite to that – the order dismissing the parent’s application for leave to oppose the making of the adoption order – has been invalidated by the subsequent order of this court. The consequence, to adopt the words used by Butler-Sloss LJ in Re K (Adoption and Wardship) [1997] 2 FLR 221, 228, is that there has been “no proper hearing of the adoption application” and, moreover, in circumstances where, if the adoption order stands, there will be “fundamental injustice” not merely to the parent but also, we emphasise, to the child. It is a necessary corollary of the appeal against the judge’s refusal to give leave to oppose the making of the adoption order being successful that the adoption order which followed must be set aside.

 

So  if a leave to oppose is refused and then appealed successfully, the adoption order itself must be set aside. That has major consequences for the timing of an adoption final hearing or order if there has been a leave to oppose application, and for adopters generally.  The making of the adoption order is not going to be the final say necessarily (they may have to wait not only for an appeal to be lodged, but for it to be determined, AND the prospects of a leave to oppose application are much harder to call, and it is probably more likely that many will be allowed, to avoid the nightmare scenario of an adoption order being made and later set aside.

This case is going to be very important for adopters, and the training and preparation they are given about the legal process, which is as a result likely to become more uncertain and stressful.  (There are of course, the advantages to parents and family life of such a decision, affording the parents opportunity to change after the care proceedings and to tackle their problems and put themselves in a position where they have an argument that ought to be heard)

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