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02 JUL 2007

ADOPTION: P v Serial No 52/2006 & others [2007] EWCA Civ 616

(Court of Appeal; Thorpe and Wall LJJ and Hedley J; 27 June 2007)

The child was removed from the care of the father and the mother by means of an emergency protection order. The care plan was for the child to be adopted by strangers and a placement order was made under s 21 Children Act 2002 Act. The judge dispensed with the parents' consent to the placement. The new family issued adoption proceedings in respect of the child.

The parents requested leave to defend the adoption proceedings, arguing that there had been a change in their circumstances which passed the threshold under s 47(7) of the 2002 Act, allowing the judge to grant leave to defend. The judge was not satisfied that there had been a change in circumstances under s 47(7). Further, s 1 of the 2002 Act applied to the proceedings: the childs welfare was the court's paramount consideration and required her to be adopted. The parents appealed, arguing that the judge was wrong to hold there had been an insufficient change in circumstances so as to pass the threshold and, further, that the judge had been wrong to hold that the child's welfare was the court's paramount consideration on an application for leave to defend adoption proceedings.

The appeal would be dismissed.

The judicial decision whether or not to give leave to a parent to defend adoption proceedings under s 47(5) is a decision related to the adoption of a child and as such was governed by s 1 of the 2002 Act and the child's welfare was the paramount consideration.

The change in circumstances had to be relevant or material to the question of whether or not leave should be granted. The statute did not demand that the change should be significant. The judge had properly exercised his discretion in accordance both with the 'welfare check list' in s 1(3) and s 1(4) of the 2002 Act and with the principle that children have a right to be brought up by their natural parents with their full siblings unless their welfare positively demands the displacement of that right.

The fact that a judge is taking the welfare of the child as his paramount consideration does not mean that he must conduct a full welfare hearing with oral evidence and cross examination in order to reach a conclusion.

Judges hearing applications by parents for leave to defend adoption proceedings after a placement order has been made should follow a two stage process: (1) they must find that there has been a change in circumstances since the order was made which is material, and of a nature and degree which is sufficient to open the door to a consideration by the court of the exercise of its discretion to give the parents leave to defend; (2) if such a change in circumstances is found, the second stage is reached and the question of leave falls to be decided by the application of s 1 of the 2002 Act to the facts of the case. The paramount consideration must be the child's welfare throughout his or her life.

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