A (Children) [2019] EWCA Civ 609

This was an appeal brought by the Father against an order by HHJ Wilding dismissing his application for leave to oppose the making of Adoption Orders under S47(5) of the Adoption and Children Act 2002 in relation to his two children, who were aged 6 and 4. 

The application for leave to oppose the Adoption Orders was brought as the Maternal Grandfather had come forward as a potential carer for the children and this was put forward as a change in circumstance.  However, the Judge dismissed this application as he identified that the Maternal Grandfather’s proposal to care for the children did not represent not a significant change in circumstance as he had been aware of the original proceedings.  The judge also stated that in the event that there had been sufficient change in circumstances the children’s welfare was not the paramount concern at the second stage of the legal exercise. 

The issues in the appeal were:

  1. Was the judge wrong to decide that there had been no change in circumstances sufficient to justify granting leave?
  2. Whether, despite stating that welfare was not his paramount consideration at the second stage, the judge’s determination nevertheless fulfilled the necessary legal requirements.
  3. If it did not, whether by application of the proper legal approach the father’s application should nevertheless have been dismissed.

LJ Moylan gave the main judgment, with which LJ King and Underhill agreed.  He set out the background, legal framework, description of the first judgment and the parties’ submissions.

The ‘well-established’ two-stage approach to granting leave was noted in that firstly, the Court had to determine whether there has been a change of circumstances as set out in In re P (A Child) (Adoption Proceeding) [2007] 1 WLR 2556) and secondly, if there has been a changed of circumstance, the Court had to determine whether to give leave with the child’s welfare being the paramount concern.

LJ Moylan agreed with the HHJ Wilding’s conclusion that the Maternal Grandfather’s proposal to care for the children was not sufficient to constitute a change in circumstances as he had been aware of the Care Proceedings, in which his wife had had significant involvement and during which he could have put himself forward as a potential carer.  This was different to cases where members of the children’s extended families were unaware of the Care Proceedings and then put themselves forward as potential carers at a very late stage.  HHJ Wilding had determined that there had been a change in the Maternal Grandfather’s position rather than a change in circumstances.

The appeal was therefore dismissed and issue (2) did not need to be addressed.  However, in relation to issue (3), LJ Moylan was satisfied that although HHJ Wilding had been mistaken in stating that the welfare of the children was not the paramount concern, and this was not corrected by the advocates, if he had correctly directed himself, he would have still determined that the proposed application should be dismissed.  The parents had made a previous application for leave to oppose the applications for Adoption Orders in relation to which HHJ Wilding had given a judgement fully setting out why giving such leave would be detrimental to the children’s welfare.

The full judgment can be read here.

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