The art of balancing in leave applications for revocation of placement orders for adoption

What should the approach of the courts be in leave applications for revocation of placement orders for adoption? On the one hand, adopting a generous approach to giving leave leads to procedural delays that may lower the chances of a successful placement for the child (Doughty et al. 2019, p. 5). On the other hand, adopting a stringent approach interferes with the parent’s right to challenge a placement order and runs afoul of the adage that ‘justice must not be compromised in favour of speed’ (Gupta and Lloyd-Jones 2016, p. 546). In light of this, the recent Court of Appeal decision in Re D (Leave to Apply to Revoke Placement Orders) [2022] EWCA Civ 299 is significant as it provides legal food for thought on the approach that courts should adopt in striking a balance between the child’s welfare and the parent’s right in such applications. Re D concerned two children, aged 6.5 and 4.5, whose mother consumed alcohol excessively. In January 2019, the children were returned to the mother’s care after being removed under interim care orders. However, after the mother tested positive for chronic alcohol use and was found sitting on a park bench while heavily intoxicated, the local authority applied for a care order again in February 2020. In February 2021, the district judge made placement orders that authorised the local authority to place the children for adoption. The mother applied under s 24 of the Adoption and Children Act 2002 for leave to apply to revoke the district judge’s placement orders on the ground that there had been a change in circumstances since the placement orders were made. In January 2022, a recorder refused this application, applying the two-stage test of (i) whether there had been a sufficient change of circumstances; and (ii) if so, whether in all the circumstances leave should be given to the mother. With respect to (i), the recorder concluded that there had not been a sufficient change of circumstances as the evidence demonstrated ‘largely a repetition of what ha[d] happened previously’ (para 24). In particular, there was no change from the district judge’s findings in February 2021 that ‘the weight of evidence [was] that [the mother] will return to using alcohol, particularly when not under scrutiny and when subject to stress’ (para 24). With respect to (ii), the recorder concluded that leave should not be given to the mother as her application did not have a real prospect of success, referring again to the risk of relapse (para 25). As regards the children’s welfare, the recorder noted that it was the second time that the children were in the local