G (A Child)

Judgment

LORD JUSTICE MOYLAN:

This is the hearing of the father's appeal from the dismissal of his application under section 47(5) of the Adoption and Children Act 2002 (“ the 2002 Act ”) for leave to oppose the making of an adoption order in respect of his child, who I will call "R". The order was made by Her Honour Judge Roberts on 30 th March 2017 sitting in the Family Court.

At this hearing the father has been represented by Ms Obi-Ezekpazu. The First Respondent, local authority, has been represented by Mr Crawley and the Second Respondents, the prospective adoptive parents, have been represented by Ms Cudby.

The appeal could be described as unusual in that the father has been refused permission to appeal to challenge the merits of the decision to dismiss his application for leave. He was given permission to appeal on two grounds only which are connected with an application he had made under the Human Rights Act 1998 (“ the 1998 Act ”). The grounds are to the effect the judge was wrong not to transfer the "case" to the High Court because the father was claiming that section 47 of the 2002 Act is incompatible with the European Convention on Human Rights (“ECHR”). Ms Obi-Ezekpazu argues alternatively that the judge was wrong not to adjourn or stay the determination of the father's application under section 47(5) , and consequently the adoption application, pending the determination of his application for a declaration of incompatibility.

I make clear at the outset of this judgment that this case concerns and concerns only a claim for a declaration of incompatibility. Section 4 of the 1998 Act limits the courts which can make such a declaration to those set out in section 4(5) . They include the High Court but do not include the Family Court. Family Procedure Rules 2010 PD29B, paragraph 3.1, provides that the hearing and determination of a claim for declaration of incompatibility are confined to a High Court judge. It also provides that claims can be heard and determined, I quote, "In the family court by a judge of high court level." At first sight, this would seem to conflict with the provisions of the 1998 Act but because this is not relevant to this appeal, that issue has not been further explored.

Background

Summarising the background briefly. A placement order was made in respect of R in August 2013. The father's application for permission to appeal that order was refused by the Court of Appeal. R was then placed with prospective adopters in J