Posted on 4 Feb 2014

Re B-S Adoption Application Guidance

In mid September 2013, I attended my BAAF (British Association of Adoption and Fostering) Legal Group Committee in London. There was discussion about the case of Re B-S – an interesting adoption case and the judgement was eagerly awaited.

I received the Judgment via email from BAAF a few days later. I could not wait to read it.

I went straight to the end of the Judgement. The appeal was dismissed. I imagine that many prospective adopters and Local Authorities are breathing a huge sigh of relief.

The situation was that of a birth mother of two children who had undergone, as described by the Judge as “an astonishing change of circumstances”. Over the preceding twelve months, her two children (aged 6 and 5) were subject of care proceedings, forcibly removed from her care and placed for adoption. The birth mother remained opposed to her children being adopted and continued to fight in the Courts and arguing her change in personal circumstances were such that the children should be returned to her.

The Adoption Order not yet been granted by the Court – so why was she too late to get her children back?

Prior to granting of Adoption Order, the law states that once;

  • the children are subject to final Orders (as these were – Placement Orders) and
  • placed in their new adoptive home

then the only legal challenge is to ask the Court for permission to be able to oppose the making of an Adoption Order. So this birth mother had to ask for permission. The permission was refused by a Mr Justice Parker sitting at Chelmsford County Court on 7th May 2013. The birth mother appealed this decision and Lord Justice MacFarlane granted her appeal.

This is when the case became of huge interest. Was the Court going to order that two children who had been placed with their new adopters since April 2012 should not be adopted? Should these children be removed from their adoptive home/forever family and returned to the care of their birth family?

MacFarlance LJ made comments that adoption is “a very extreme thing, a last resort”, only to be made where “nothing else will do”. This sentiment appears to fly in the face of the Government’s ambition for thousands more adopters to come forward and adopt children from the care system. Why would you put yourself forward to adopt a child if you thought a child could be placed with you for adoption but by the time you came to make your application for an Adoption Order, if the birth mother has made good progress –the children will be removed?

As stated, the appeal was dismissed. The Birth Mother was not given permission to oppose the making of the Adoption Order application. In a very well reasoned judgement given by the President of the Family Division, Sir James Munby, sitting in the Court of Appeal – he gave his reasons as to why the appeal could not continue.

Taken in the round it was the Court’s view that it was in the best interests of these two children throughout their lives to be adopted. Mention was made of the abuse the children had suffered previously, that fact that the adoptive family had been introduced as their “forever family” and that there was no certainty that the birth Mother’s improvement would be sustained.

Had the Court of Appeal upheld MacFarlance LJ’s earlier decision, one could imagine a torrent of litigation by birth parents bringing legal action prior to the granting of Adoption Orders. No one denied that adoption is a last resort but it seems that to reverse the direction of travel for these children now is too late. 

Unfortunately there will be no huge sigh of relief for the birth mother, despite her ‘astonishing change of circumstances’. A huge sigh of relief for the prospective adopters, however, and one hopes a sigh of relief for the children too.