Supreme Court judgment in Re B casts doubt on the test in Re W
Lord Justice McFarlane has given permission to a mother to appeal against a refusal to allow her to oppose an application for the adoption of her two eldest children.
The county court had applied the test outlined by Thorpe LJ in Re W (Adoption: Set Aside and Leave to Oppose)  EWCA Civ 1535;  1 FLR 2153 at para. 18:
“So once an adoption application is challenged by the natural parent at a very late stage, it is easy to see that to avert the progress, the completion of the progress to adoption, the applicant has to clear three fences. The first is to establish the necessary change of circumstances. The second is then to satisfy the court that, in the exercise of discretion, it would be right to grant permission. The third and final stage would of course be to persuade the court at the opposed hearing to refuse the adoption order and to reverse the direction in which the child’s life has travelled since the inception of the original public law care proceedings.”
McFarlane LJ was of the view that Parker J (sitting as a county court judge) may have conflated the second and third tests.
However, McFarlane LJ was concerned that the Re W test might need to be reconsidered because 48 hours before this application was heard, the Supreme Court had given its decision in Re B (A Child)  UKSC 33. The judgments of Lord Neuberger and Lady Hale had in particular emphasised the high level of evidence required before a court can go on to make an adoption order in circumstances in which the child’s parents do not consent to the adoption.
In addition, the Justices of the Supreme Court had each described the approach to be taken at appellate level in relation to decisions which are not simply discretionary determinations by a judge but are decisions that impact upon Convention rights. The appellate court, the Justices said, has a duty to review the compliance by the trial judge with the obligation not to determine any application in a manner incompatible with the Article 8 rights that are engaged. McFarlane LJ considered that it was arguable that such a review was necessary in this case.
Further consideration was also required as to whether the test in an appeal such as this is now whether the judge at first instance was “wrong” as opposed to “plainly wrong”.
For the judgment in the proceedings seeking permission to appeal and the summary of it, written by Sally Gore of 14 Gray’s Inn Square, from which this news item is derived, please click here.
SOURCE: Family Law Week