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Mother wins appeal over lack of due process when she applied for leave to oppose adoption order

A mother who wished to contest an adoption order was not afforded due process by the Family Court, the Court of Appeal has found.

Lady Justice Macur said the case arose from the order of HHJ Jack in November 2020 which refused the mother’s application - made under s.47 of the Adoption and Children Act 2002 - for leave to oppose an adoption order for her six-year-old son Z. The mother was a litigant in person.

Macur LJ, who heard the case with Lord Justice Males and Lord Justice Phillips, noted the appeal was restricted to whether the mother received due process and not the merits of her application.

In S (A Child) [2021] EWCA Civ 605  the appeal judges allowed her appeal and gave directions for a rehearing.

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Z was made the subject of a placement order in February 2019 after care proceedings had been issued for him and four elder siblings following concerns of neglect, domestic upheaval, and emotional harm. He was placed with adoptive parents in September 2019.

The appeal focused on the mother’s claims about the absence of a transcript relating to the making of the placement order in February 2019; and that she had not seen any part of the Annex A/Section A report upon which HHJ Jack stated he placed great reliance.

Counsel for the unnamed local authority involved argued: “The burden fell to [the mother] to provide the court with such information as required to support her case, and by extension [the] transcript.”

The local authority also argued that the Annex A/Section A report, was a confidential report pursuant to rule 14.11 FPR 2010 that concerned the suitability of the potential adopters and was not relevant to her opposition the adoption order.

It argued that even were this disclosed it would have to be redacted to the extent it would become “unreadable”.

Macur LJ expressed “some surprise at the stance taken by the local authority in regard to what it asserts to be the failures of the mother in lodging a transcript of the judgment and, presumably, for not seeking a copy of the redacted Annex A, section A report.

“She is said to be responsible for the shortfalls which lead to this appeal, and which should therefore dispose us against allowing the same.”

The judge said that while the mother bore the burden of establishing the basis for leave to oppose the adoption application, the local authority had been “well aware of the absence of the necessary judgments from the papers that had been lodged with the court and that the application was to be heard by a judge other than HHJ Heaton QC”, who had heard the initial case but subsequently retired leaving it to HHJ Jack.

Macur LJ said: “All legal representatives owe a duty to the court to assist in its delivery of justice.

“What is more, the local authority has at least a vicarious interest on the part of the child in ensuring that any decision regarding their future is made timeously and with due process.”

She said HHJ Jack’s “recital of the law was irreproachable, and he addressed the welfare of Z appropriately”.

He had been “acutely conscious of Z's predicament (including the urgency of the decision on his future) [but] in his obvious concern to be fair to all concerned he did not appreciate the significance of the points to which I have referred”.

Macur LJ said that despite allowing the mother’s appeal the court has explained to her “the hurdles she faces in seeking leave to oppose the adoption are high ones”.

Mark Smulian

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