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Articles | Tue 6th Oct, 2015
Re CB (A Child)  EWCA Civ 888
This case concerned a little girl, CB, who was born in April 2008. CB and her mother, LB, are both Latvian citizens although CB was born in England and has been habitually resident here since. Following an incident in March 2010 when CB was found in appalling conditions at home, she was placed in foster care and proceedings were issued. In July 2012 District Judge McPhee made care and placement orders. The DJ found that CB had been subjected to significant physical and emotional neglect and had suffered significant harm whilst in the care of LB.
Following an unsuccessful appeal by LB, CB was placed with prospective adopters in May 2013. Her last contact with LB was in March 2013. In July 2014 the prospective adopters issued their application to adopt CB. The mother made three applications in response: 1) to transfer proceedings to Latvia under Article 15 of Council Regulation (EC) No. 2201/2001 (commonly known as Brussels Revised or “BIIR”), 2) for leave to oppose the making of an adoption order under section 47(5) of the Adoption and Children Act 2002 (“the 2002 Act”) and 3) for direct contact with CB.
The Mother’s applications came before Moylan J in December 2014: Re B, London Borough of Merton v LB  EWHC 4532 (Fam). He found that the Article 15 application had to fail because BIIR does not apply to adoption proceedings. The wording in Article 1(3)(b) is very clear on that: “3. This Regulation shall not apply to:… b) decisions on adoption, measures preparatory to adoption or the annulment or revocation of adoption”. In respect of the application for leave to oppose, he found that the application failed at the first hurdle, i.e. there had been no change of circumstances since the conclusion of the care proceedings. He added that if he was wrong on that, he refused the application on welfare grounds. Contact was also refused on the basis that to reintroduce contact would have a significant and disruptive effect on CB and be likely to undermine the adoptive placement.
The mother then appealed on four grounds:
Permission to appeal was granted, not on the basis of prospects of success but under the ‘some other compelling reason’ provision and in all likelihood only because of the intervention of the Latvian authorities. Indeed it was around this time that the Saeima of the Republic of Latvia wrote directly to the Speaker of the House of Commons about this case, criticising ‘forced adoption’ and the alleged failure of the UK to ensure other EU countries were being informed of such decisions. That letter gained press coverage in legal blogs and in the national press (see here for example).
The Court of Appeal (judgment given by Sir James Munby President of the Family Division) agreed entirely with the reasoning and decision of Moylan J and accordingly dismissed the mother’s appeal on all grounds. They confirmed that an application under 47(5) of the 2002 Act is “a measure preparatory to adoption” within the meaning of Article 1(3)(b) and so Article 15 is not applicable.
When considering the mother’s arguments on ‘change of circumstances’, the President found that actually there had been very little change in mother’s position since the conclusion of the proceedings. The mere fact that the Latvian authorities were prepared to intervene and carry out assessments in Latvia did not amount to a change of circumstances in itself. Also, the mother had been given an opportunity to provide the court with any information she wanted it to consider when making her application for leave and so there was no basis for her complaint about lack of up-dating information.
In response to the general criticism of ‘forced adoption’, the President made two important points:
The key part of this judgment for all those working in this area of law, is the reminder from the President as to what constitutes good practice in cases concerning foreign nationals and the re-iteration of the principles set out in Re E (A Child) (Care Proceedings: European Dimension) Practice Note  EWHC 6 (Fam). In particular:
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