Chris and Carol were experienced adopters. They had adopted Zak 5 years ago. They thought they knew how the system worked.

They waited for Jenny. She was placed with them just over 2 years ago. She’d been in care for over 12 months. Jenny has some issues and sorting out support has taken time. There was an administrative hiccup last year when they tried to file their adoption application. A fresh one was filed in April. By this stage relationships have been built. Zak knows he has a sister!

In September, Chris and Carol found they had joined the growing list of adopters faced with a birth mother seeking permission to oppose the adoption. They are bewildered, fearful and upset.

How does a court deal with such an application? In October 2014, Mrs Justice Pauffley set out the legal position.

In refusing a mother’s application for the grant of leave to oppose an adoption application, the judge considered the two-stage legal test

The first question is whether there has been a relevant or material change of circumstances of a nature and degree sufficient to re-open consideration of the issue. This is a question of fact.

The second question is whether leave should be given. In answering this, she stated that the court should assess the applicant’s ultimate prospects of success in opposing the application and the child’s welfare is paramount. She said:

“When performing the welfare evaluation, weighing and balancing the parent’s ultimate prospects of success as well as the impact upon the child if the parent is or is not given leave to oppose, ten points should be borne in mind.

1. Prospect of success relates to the prospect of resisting the making of an adoption order not the prospect of ultimately having the child restored to the parent.
2. The two issues – change in circumstance and solid grounds for seeking leave – will almost invariably be intertwined.
3. Once a change of circumstances as well as solid grounds for seeking leave have been established, the judge must give very careful consideration indeed to whether the child’s welfare really does necessitate the refusal of leave. Adoption is of “last resort” and “where nothing else will do.”
4. The judicial assessment must take into account all of the risks as well as the advantages of each of the two options.
5. The court must have proper evidence but this does not mean judges will always need to hear oral evidence.
6. The greater the change in circumstances and the more solid the parent’s grounds for seeking leave to oppose, the more cogent and compelling the arguments based on the child’s welfare must be if leave to oppose is refused.
7. The mere fact that a child has been placed with prospective adopters cannot be determinative nor can the mere passage of time.
8. What is paramount in every adoption case is the welfare of the child “throughout their life.” The court should take a medium and a long term view of the child’s development and not accord excessive weight to what appear likely to be short term or transient problems.
9. Judges must be careful not to attach undue weight to the argument that leave should be refused because of the adverse impact upon the adopters, and thus on the child, of their having to pursue a contested adoption application. In appropriate cases the disruptive effects of an order giving a parent leave to oppose can be minimised by firm judicial case management.
10. Judges are urged to bear in mind the wise and humane words of Wall LJ in Re P (supra) – “the test should not be set too high because … parents … should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child by the imposition of a test which is unachievable.”

After hearing evidence and submissions, the court rejected the mother’s application at the first stage. Pauffley J went on to state that if she had been required to consider the mother’s eventual chances of success in resisting the adoption order, she would have reasoned them to be nil. In such circumstances it would have been “cruel” to grant leave for an application that was bound to fail, and the second stage of the test would also have failed.

The problem for prospective adopters is that they may face a “cruel” wait. They are on the sidelines, usually without legal representation. They fear the loss of the child who is now part of their family. They are often kept in the dark. However tiny the number of successful “leave” applications, the fact is that the number of such applications is growing.

Chris and Carol are still waiting to find out if Jenny is staying with them.

The team at the Adoption Legal Centre are specialists in advising both adopters and potential adopters. We can help when adopters are facing challenging problems. We advise about what they need to do and what steps they should take to obtain support and advice when they face difficult problems. Please contact us on 0843 8866386 or by e-mail.