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(Court of Appeal, McFarlane LJ, 14 June 2013)
The mother had two children, now aged 5 and 4, when she was a teenager and living in circumstances which made her very vulnerable and unable to provide safe or good enough parenting. The children were removed from her care, made subject to full care and placement for adoption orders. They were placed with prospective adopters who applied for adoption orders.
In the meantime the mother's circumstances had changed dramatically. She had left her abusive partner and was now married to a man serving in the armed forces and they had a young child together for whom the local authority had no concerns. She applied for permission pursuant to s 47(5) of the Adoption and Children Act 2002 to oppose the adoption of the two children.
The judge, after reciting the adverse findings made against the mother concluded that it was entirely improbable that the children would be returned to the mother and, therefore, refused her permission and granted a final adoption order but the celebration event was postponed pending the mother's appeal.
Permission to appeal was granted on a number of bases including those arising out of the decision in Re B  UKSC 13. These points indicated there was potential for a fundamental review of the procedure for applications of this sort and it was very much in the interests of justice and the assistance of the court that the mother be granted legal representation. The mother was currently represented by the Bar Pro Bono Unit but for future hearings the Legal Aid Authority was firmly encouraged to look favourably on the mother's application.
The case law established that in addition to proving a change of circumstances the court had to determine whether granting the parent permission to oppose afforded the welfare of the children throughout their lifetimes' paramount consideration.
There was justification for allowing the appeal so that the test established in Re W (Adoption: Set Aside and Leave to Oppose)  EWCA Civ 1535,  1 FLR 2153, could be examined in light of the comments in Re B of the high level of evidence required before a court could make an adoption order where a parent was withholding consent. That approach was in contrast with Thorpe LJ's comment in Re W that cases where a parent would be permitted to oppose an adoption order would be ‘exceptionally rare'.
In addition Re B reiterated that the test an appellate court had to apply was whether the judge had been wrong, not plainly wrong, and there was a duty to review whether the trial judge had complied with the obligation to determine the application in a way that was compatible with Art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
The mother was granted permission to appeal.
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