Confidential Prospective Adopters v BM & Ors

This application relates to the proposed adoption of a little boy G. He is now 3 years old. His mother is BM. G was made subject to a final care and placement order on 28th February 2024. He was placed for adoption with the applicant confidential prospective adopters (PA) on 13th December 2024. PA made their application for a final adoption order on 1st July 2025.

In the usual way standard gatekeeping directions were made by DJ O’Hagan sitting in the family court at Wolverhampton on 30th July 2025. That initial order contained directions for any application by the birth parents for permission to oppose the adoption application. Wolverhampton’s standard order provided:

At a hearing before HHJ Carter on 21st November 2025, BM requested disclosure of the Annex A report. The Annex A report is prepared by the adoption agency or local authority on the suitability of the applicant(s) to adopt. The matters to be covered by the report are comprehensively set out in the Family Procedure Rules 2010 (‘FPR 2010’), PD 14C:

By consent, HHJ Carter ordered disclosure of Part B of the Annex A report suitably redacted to remove any confidential identifying information about the PA. Part B contains matters relating to the child and birth family. There remains an issue between the parties as to the scope of the redaction of Part B.

BM continues to seek disclosure of the full Annex A report, again suitably redacted to remove any confidential identifying information about PA. Her application is for disclosure whether or not she is successful in obtaining permission to oppose the adoption. That application is opposed by all other parties. HHJ Carter identified that the issue of whether the Annex A report should be disclosed to BM raised questions of wider public interest and the matter was therefore re-allocated to the Family Presiding Judge for the Midlands. Adoption at Heart, the regional adoption agency to which the local authority delegates certain of its functions, and Coram BAAF accepted invitations to intervene to assist the court on the broader questions of public policy that may arise if disclosure of the Annex A report were to become more routine.

I am very grateful for the assistance of all parties and the two intervenors. PA have not been legally represented and did not participate in the hearing, but they have filed a statement dated 17th February 2026 setting out the reasons for their opposition to the full Annex A being disclosed. BM has been represented by Mr Vine KC leading Mr Forbes. The local authority has been represented by Ms Baruah leading Ms Kakonge. The guardian has been represented by Mr Hadley KC leading Ms Popley. Adoption at Heart have been represented by Ms Meyer KC leading Ms Gallacher and Coram BAAF have been represented by Ms Conroy Harris and Ms Poore.

This case is of course of fundamental importance to BM. The court hopes however that she will forgive the observation that there is nothing particularly unusual about the factual context in which this application is made. G is mother’s sixth child, all five of G’s older siblings having been removed from her care. Three of G’s siblings have previously been adopted. G was placed into local authority care at birth. The threshold in the care proceedings was found to be satisfied on the basis of serious domestic abuse within the parents’ relationship, father’s alcohol and drug use and an itinerant/unstable lifestyle.

Since the conclusion of G’s care and placement proceedings, BM asserts she has achieved meaningful change. She says that she has sustained separation from G’s father, completed recommended work on domestic abuse, undertaken therapy and counselling and completed a number of parenting courses. She says she has achieved stability in her own life, obtaining employment and securing her own home. On that basis she seeks permission to oppose the adoption application.

For the judges who deal with these applications day-to-day, the basis for BM’s application will be very familiar. The Court is of course seized only with BM’s application. However, it is clear that if disclosure of the Annex A report were to be granted in BM’s case, it is likely to be deemed disclosable in the majority of such cases.

BM’s application for disclosure of the Annex A report must be understood within the wider statutory scheme on adoption as applicable to this particular case. It is significant that this is an application for adoption made by PA following G being placed with them by an adoption agency pursuant to a placement order. That has legal and procedural consequences for the way in which the adoption application proceeds.

The Court therefore reminds itself of that wider statutory scheme. Section 21 of the Adoption and Children Act 2002 (‘ACA 2002’) makes detailed provision as to the conditions which must be met for the making of a placement order. Notably, a placement order may only be made where the court is satisfied the section 31 threshold criteria under s 31 of the Children Act 1989 are satisfied, and that the consent of the birth parents should be dispensed with:

Sections 42-45 of the ACA 2002 make provision as to how placing a child pursuant to a placement order will impact on the preliminary steps to be satisfied before an application for an adoption order can be made, including the assessment required of the prospective adopters. Section 42 provides that the child must have lived with the prospective adopters for a period of ten weeks preceding the application, and that the adoption agency must have had sufficient opportunity to see the child together with the applicants in their home environment.

Sections 43 and 44 deal with the reports which must be prepared by the adoption agency for the court, including the contents of the ‘Annex A’ report:

Section 47 of the ACA 2002 sets out the conditions which must be satisfied once the court is seized of an application for adoption, and before the adoption order can be made. Crucially, section 47(4) prescribes the limited role to be played by a birth parent in the determination of an application for an adoption order if a child has been placed under a placement order.

It is agreed between the parties that ‘change in circumstances’ for the purposes of determining a birth parent’s application for leave to oppose the adoption order under section 47(7) is to be understood in accordance with the two stage process set out by the Court of Appeal in Re P (A Child) (Adoption Proceedings) [2007] EWCA Civ 616. Wall LJ giving the judgment of the Court of Appeal held:

As regards what is required of the birth parent to establish a change in circumstances, the Court of Appeal emphasised the broad and inclusive nature of the test:

Interestingly, the Court of Appeal signalled that the welfare focused discretionary stage of the two-limb test was likely to be the more important, confirming that the child’s welfare throughout their life was paramount and that the welfare checklist under section 1(4) of the ACA 2002 applied:

In Re M [2023] EWCA Civ 404, the Court of Appeal provided further guidance on the application of the welfare test at this second stage of a permission application, identifying the essential question to be addressed as:

Sections 56-65 of the legislation set out detailed rules regarding the information to be kept about an adoption and how adopted persons and others may obtain access to protected (i.e. identifying) and other information about an adoption. These provisions make clear the confidentiality that still underpins the adoption process in English law.

The relevant statutory rules governing adoption applications are contained within Part 14 of the FPR 2010. Under rule 14.3, the adoption agency and a birth parent with parental responsibility are automatic respondents to the application. The court has wide case management powers to manage the application fairly and effectively. Those powers are set out in Rule 14.8 and include giving directions as to the filing of reports and other evidence.

FPR 2010 r 14.11 deals with the purpose, preparation and status of the Annex A report. Rule 14.11(6) specifically provides that the report is to be confidential to all parties, including the applicants, the prospective adopters. Under rule 14.11(5) the report is only to be sent to Cafcass:

FPR 2010 r 14.13 makes further provision for the confidentiality of the report, subject to any disclosure to the parties permitted by the court. The rule places a mandatory obligation on the court to consider whether or not the report should be disclosed to the parties and, if so, what information should be removed or redacted.

Arrangements for the final hearing are dealt with in FPR 2010 rr 14.15 and 14.16. Rule 14.15 provides that notice of the final hearing should be given to all parties, including the birth parents. However, rule 14.16 further prescribes the participation of the birth parent where the child has been placed for adoption pursuant to a placement order:

BM’s position is effectively summarised in paragraph 10 of her skeleton argument. She says:

As to the law governing such an application for disclosure, BM’s position is again very helpfully summarised at paragraph 13 of her skeleton. It is argued:

The basis for the PA’s opposition to the disclosure of the full Annex A is contained within their statement. They express their concern and anxiety about the proposed disclosure, noting that the adoption process has been a very intensive and intrusive process, which has explored in enormous depth their personal private family life. They fear that the information contained within the report has the potential to be used by BM to not only trace G but to try and undermine his placement. Those fears are exacerbated by her opposition to the adoption application. PA also note their concern about the potential impact on contact with birth family members in the future, including G’s siblings, if BM is possessed of information that could jeopardise those arrangements. PA also note that they had not anticipated their personal information being shared with BM, and if disclosure is ordered it would discourage them from applying to adopt another child. They question the relevance of the information contained within the Annex A to BM’s application for leave.

As regards G, PA note that anything which undermines G’s placement with them will cause him unnecessary emotional distress and harm that would interfere with his day-to-day life and ability to maintain and develop his relationship with them. They note that G has settled into placement and is thriving and they would not want anything to destabilise the security that he now has.

In opposing the application for disclosure, the local authority also rely on the evidence filed by PA. The local authority argue:

In terms of the correct approach under the law to BM’s application, the local authority also helpfully distil their argument into the following core propositions:

The guardian joins with the local authority in opposing the application for disclosure. As regards the applicable legal principles, the guardian notes the following:

In applying those legal principles in this case, the guardian argues that BM does not require further disclosure of the Annex A report for the leave application to be determined fairly but there is a real and significant risk of harm to G if disclosure is permitted. The balance thus falls against further disclosure of the Annex A report.

Finally, the two intervenors highlight a number of concerns that would arise more generally if disclosure of the full Annex A report were more routinely permitted in applications such as this.

The Court is advised that there are currently 3000 children subject to placement orders in England and Wales who are not linked or matched to prospective adopters. These are children for whom a court has determined they cannot safely return home, and a plan of adoption has been approved. There are significant concerns that the number of children subject to placement orders but waiting for an adoption placement continues to grow, with children waiting longer and longer to be matched. This reflects a decline in the number of prospective adopters being recruited and approved. Adoption England’s Annual Report 2024 to 2025, identifies that this decline in numbers is due to a range of factors including economic, perceived lack of post-adoption support and negative media stories.

There is real concern within the adoption sector that any undermining of the confidentiality of information provided within the assessment process as a result of a change to the current approach to the disclosure of the Annex A report will add additional stress to prospective adopters and further deter prospective adopters from coming forward. The gap between children needing permanent homes and families willing to come forward will thus widen. The issue extends beyond the disclosure of information that might identify the prospective adopters and where they live, to deeply personal information about their relationship, wider family, fertility, health and finance. It is observed that it is vital prospective adopters feel able to share this information openly and honestly, otherwise the integrity of the assessment and matching process may be compromised by sensitive information being withheld.

In their submissions, Coram BAAF make the helpful and important observation that their members do not object in principle to disclosure of those parts of the Annex A report relating to the parent or the child, provided there is careful redaction to prevent identification of the adoptive placement. Indeed, the sections of the Annex A report about the birth parents and the child will be completed by the child’s social worker and will draw heavily on the child’s local authority file and the Child’s Permanence Report completed for the placement proceedings. Regulation 41 of the Adoption Agencies Regulations 2005 provides for those files and reports to be treated as confidential, but good practice requires that the drafts of reports containing information about the birth parent and wider family to be shown to the parent so that they have the opportunity to correct any factual mistakes and to comment on any matters with which they disagree.

Disclosure of those parts of the Annex A which relate to the birth parents and child do not therefore create any great difficulties for Coram BAAF, subject to the important caveat that the need for redaction of identifying information from any section of the Annex A raises concern about the security and effectiveness of that process. It is noted that the risk of jigsaw identification from birth parents piecing together different sources of information is a cause of very significant anxiety for prospective adopters. There have been a number of cases in which the confidentiality of the adoptive placement has been compromised by identifying information being inadvertently disclosed with significant safeguarding consequences.

With these considerations in mind, the balanced position of Adoption at Heart is very helpfully summarised in their skeleton argument:

In the court’s judgment, the concerns raised by the intervenors provide an important reminder of why the statutory scheme for adoption following care and placement proceedings, places such weight on maintaining the confidentiality of the adoption process, the identity of the prospective adopters and the placement. Those policy considerations underpin the statutory framework and provide the essential context in which BM’s application for disclosure must be considered. The Court particularly endorses as helpful the various factors identified by Adoption at Heart above as relevant to the Court’s exercise of discretion in determining whether the Annex A report should be disclosed.

As noted, in approaching the question of disclosure of the Annex A, the court considers it important to hold firmly in mind the context in which BM’s application is made. There is a clear statutory scheme in place which has been carefully drafted to balance the parties’ competing rights and interests at this final phase of a child’s adoption journey following care and placement proceedings. In the court’s judgment the following points hold significance.

PA’s application to adopt G follows the making of a placement order in which a court has determined that the child was suffering or likely to suffer significant harm attributable to the parents’ care, and that a plan of adoption is in the child’s best interests following the rigorous welfare analysis required by Re B (Care Proceedings: Appeal) [2013] UKSC 33. BM has been able to fully participate in that decision making process with disclosure of all relevant evidence, thereby safeguarding her article 6 and article 8 rights. The fact a placement order has been made by a court authorising a plan of adoption for the child, and that the child has been placed pursuant to that order with prospective adopters rigorously assessed by an adoption agency as to their suitability, sets the essential context in which PA make their application. It distinguishes this process in important ways from that of a step-parent adoption or a purely private adoption application which has not been preceded by placement proceedings. What BM’s article 6 and article 8 rights require to ensure a fair and just decision-making process in determining the adoption application must be understood within that context and with a mind to the whole decision-making process for the child.

It is worth reiterating that article 6 does not dictate any particular procedural requirements. What is necessitated by both article 6, and article 8 in its procedural aspects, is a fair and just decision-making process when considered within its particular context. The Court notes the decisions of the European Court of Human Rights (‘ECtHR’) relied upon by BM as exemplifying the requirements of articles 6 and 8 in adoption decision making. However, given the different legal and factual context in which the procedural issues arose, the Court does not consider they take the Court very much further than matters of well-recognised general principle.

W v UK 10 E.H.R.R. 29, concerned the decision-making process for receiving a child into care, the removal of parental rights, cessation of contact and placement of a child in foster care with a view to adoption. The ECtHR held that the father’s article 6 and article 8 rights had been violated. The European Court dealt first with the procedural aspects of article 8, recognising that article 8 contains no explicit procedural requirements. It held that what falls to be determined is whether the process “has been conducted in a manner that, in all the circumstances, is fair and affords due respect to the interests protected by Article 8.” In particular:

Importantly, the European Court recognised that the decision-making process must be looked at as a whole, which on the facts of that particular case stretched from the parents initial agreement to the child entering voluntary care, until the decision, made finally and administratively by the local authority, to terminate contact with the parents and place the child with foster carers with a view to adoption. In finding a violation of article 8, the European Court had to grapple with a process by which a series of “critical decisions” were made administratively by the local authority at “critical stages on the road to adoption”, without affording the parents a voice in that decision-making process, and without recourse to a court until matters had become, in substance, irreversible. Similarly, the European Court found a violation of article 6 on the basis there was no means of effective judicial challenge to the substantive merits of the local authority’s decision to terminate the parents’ contact.

McMichael v UK 20 E.H.R.R. 205, concerned the practice of children’s hearings in Scotland and any subsequent appeal to the Sheriff’s court. The core procedural issue in question was the fact that throughout the children’s hearings and appeal process, the parents had no right to receive any of the reports or statements filed by the local authority and on which decisions would be made. Before the ECtHR, the Government conceded a breach of article 6 on the basis neither the applicant nor her legal representative was able to see certain documents that were considered by the decision-making body. The Court observed: “as a matter of general principle the right to a fair – adversarial – trial means the opportunity to have knowledge of and comment on the observations filed or evidence adduced by the other party.” It continued that the lack of disclosure of such vital documents as social reports both within children’s hearings and subsequently in the Sheriff’s court, could affect the ability of participating parents to influence the outcome of proceedings. Similarly, in finding a breach of article 8, the ECtHR repeated its well-established jurisprudence on procedural fairness as set out above in W v UK, and concluded that the care proceedings, by reason of the inability of the applicant to have sight of core decision-making documents adverse to his case, were unfair.

The procedural deficits identified in both W v UK and McMichael v UK, and which were found to constitute violations of the parents’ Convention rights, were clearly very significant and persisted throughout lengthy care and adoption proceedings. Those procedural deficits were however very different in nature from the discreet question of disclosure of the Annex A report now before this court. Moreover, the ECtHR begins in both cases from the clear premise that what article 6 and article 8 may require to ensure procedural fairness in any individual case will depend on the particular features of the decision-making process in question. The merits of BM’s procedural arguments under articles 6 and 8 of the Convention are wholly different in circumstances where she has been fully involved at every stage of care and placement decision-making for G, and where the Court has determined G should be placed for adoption following proceedings in which BM has had sight of all relevant evidence and been able to fully participate in the process. Beyond matters of general principle, the ECtHR authorities are therefore of limited value in resolving the issues before me.

The other point which this Court regards of particular significance is the confidentiality afforded to information relating to adoption embedded throughout the statutory scheme, from the serial number process to the detailed rules on accessing information about an adoption contained within ss 56 – 61 of the ACA 2002. As a matter of public policy, parliament has entrenched confidentiality within the legislative scheme for a variety of different reasons: those include the privacy of both birth parents and prospective adopters, protecting the rigour of the assessment and matching process, and the need to safeguard the security and stability of the adoptive placement. Ultimately, whilst the interests of the birth parents and prospective adopters are engaged, those reasons serve to protect the welfare interests of the child. Whilst adoption is undergoing an important shift towards a more open and transparent process, the need to protect the confidentiality of the adoption placement remains firmly embedded in law and practice.

It is thus within that context that the key features of the legislative scheme gain meaning. Parliament has determined that although a birth parent with parental responsibility is an automatic respondent to the adoption application (FPR 2010 r 14.3), the birth parents’ participation in the process following placement proceedings is prescribed by primary legislation. Thus, ss 47(5) and 47(7) of the ACA 2002 provide that where a child has been placed for adoption pursuant to a placement order, the birth parent cannot oppose the adoption application unless they have first obtained the leave of the court. Leave will only be granted in accordance with the legislation and the guidance provided in Re P (A Child) (Adoption Proceedings) [2007] EWCA Civ 616, where the birth parent can establish a change of circumstances since the placement order was made and the child’s welfare throughout his or her life requires leave be granted. If leave is refused, the rules go on to provide that the person whose application for leave has been refused is not entitled to be heard on the question of whether an order should be made (FPR 2010 r. 14.16(2)).

What article 6 and article 8 require for a fair and just decision-making process on an adoption application must thus be understood within the context of the statutory restrictions on the birth parents’ participation. In the Court’s judgment, it provides the lens through which the disclosure arguments must be viewed. The stage at which disclosure is sought, the issues to be resolved, the evidence available and the extent to which the birth parent is permitted by statute to participate in that part of the proceedings, are all material considerations in determining whether disclosure should be granted.

Furthermore, in the court’s judgment, the confidentiality which is afforded to information about the adopters and the adoption placement, as embedded throughout the legislative scheme, provides a clear starting point for any application for disclosure beyond what the rules automatically provide. In this regard, it is significant that FPR 2010 r 14.11 provides that the purpose of the Annex A is to report to the court on the “suitability of the applicants to adopt” and is specifically to be regarded as confidential. The only automatic recipient of that report in the context of an adoption pursuant to a placement order is the guardian, if one has been appointed (FPR 2010, r 14.11(5). Disclosure beyond that provided for in FPR 2010 r. 14.11 is firmly placed within the absolute discretion of the court (FPR 2010 r 14.13). FPR 2010 r 14.13 places an obligation on the court to consider whether the confidential report should be disclosed to the parties, although an application for disclosure can clearly be made, with the scope of the court’s discretion made plain on the face of the rules: it can provide for certain information to be deleted prior to disclosure or for none of the report to be disclosed.

In the court’s judgment, the exercise of the court’s discretion in determining disclosure of the Annex A is not to be fettered by presumptions either for or against disclosure. The confidential nature of the report is reflected in the fact that all parties, including the prospective adopters, do not have an automatic entitlement to disclosure even though the report is a mandatory requirement in every adoption application and will thus constitute a central if not the central piece of evidence before the court at the final hearing (Re S (A child) [2015] EWCA Civ 1345). By that stage in the process its relevance is clear, but that is not by itself sufficient to justify disclosure to all parties in the absence of compelling reasons to the contrary, given the starting point of confidentiality. A full balancing of the competing rights and interests is required which, as noted above, will depend on the stage of the process the proceedings have reached, the disputed issues in the particular case, the evidence required to resolve the issues and the extent of participation permitted to the birth parents.

In this regard some caution must be exercised in the application of Re D (Minors) (Adoption reports: Confidentiality) [1995] AC 593.The court must firstly bear in mind that Re D was concerned with an application for the non-disclosure of a document to which the other party to proceedings was otherwise entitled under the previous adoption rules, prior to the implementation of the Human Rights Act 1998 (‘HRA 1998’) and within the very different factual matrix of a step-parent adoption. The analysis thus starts from a very different position.

The issue which fell for determination by the House of Lords in Re D was whether the birth mother should have access to sections of the guardian’s confidential report containing the children’s wishes and feelings and which made specific reference to her. She argued that the report may contain information adverse to her case to which she should be afforded the opportunity to respond. Lord Mustill held that in order to ensure a fair process those sections of the report should be disclosed. The Court held:

In the more recent decision of Re T (Children: Non-Disclosure) [2024] EWCA Civ 241, Peter Jackson LJ considered and restated the principles to be applied from Re D, but as extended and refined in light of the implementation of the HRA 1998. It is again important to note the very different context within which the issue of disclosure arose. In Re T, the Court of Appealwas again concerned with an application to withhold relevant evidence from a party to proceedings who would otherwise be entitled to the document, in this case a report from a mental health nurse on the child’s mental health which had been exhibited to the mother’s statement. The ground on which non-disclosure was advanced was the risk of harm to the subject child who had requested that the report wasn’t shared with his father. The Court of Appeal confirmed that the principles from Re D have been expanded since the advent of the HRA 1998 to encompass not just applications based on a risk of harm to the child but on the risk of harm to others. The relevant principles to be applied and which encapsulate the balance of interests required by the competing Article 6 and Article 8 rights were distilled by Peter Jackson LJ into six questions:

Re T was concerned on its facts with balancing the father’s procedural rights to a fair trial against the welfare rights and interests of the child should disclosure be allowed. It clearly sets out however the reciprocal balancing of the different rights and interests required, and provides a helpful framework for considering all the competing rights and interests that may be engaged by an application for disclosure such as that which arises in this case.

In the Court’s judgment, the reciprocal balancing of all the competing rights and interests required, as applied in the context of disclosure issues, has been consistently recognised by the domestic authorities post-implementation of the HRA 1998. As held by Munby J in Re B (Disclosure to other parties) [2001] 2 FLR 1017:

This approach was also specifically endorsed within the context of a confidential adoption application by Hale J, as she then was, in Re X (Adoption: confidential procedure) [2002] EWCA Civ 828. The case was highly unusual on its facts, the birth parents’ solicitor having discovered due to an error, that the children’s foster carers were the prospective adopters. The question thus arose whether the solicitor should disclose this information to her clients. Hale J made clear that given the confidential nature of the adoption process there was no ‘starting point’ that relevant information must be disclosed:

The Court cannot therefore agree with the submissions made on behalf of BM that once a threshold of relevance has been passed, the burden falls to the opposing parties to establish sufficiently “compelling reasons” to justify withholding disclosure of the Annex A. What is required in the Court’s judgment is an unfettered and reciprocal balancing of all the relevant rights and interests engaged, including those of BM, PA and G.

Whilst the Court cannot say disclosure of the full Annex A report will never be granted at the stage of a birth parent’s application for leave to oppose, it would in the Court’s judgment be a highly unusual case where such disclosure was merited.

The fact the court is only concerned at this stage of proceedings with a preliminary application is clearly relevant to the nature and extent of the evidence required to fairly and justly dispose of the application, and thus to the nature and extent of any disclosure required. As Peter Jackson LJ reminds us in Re M [2023] EWCA Civ 404, para [8], at the leave stage: “it is for the parent to show that the court should revisit its decision and contemplate the wholesale reversal of the programme for the child that it had felt driven to endorse when making the placement order”. He continued: “it is a filter to ensure that the structure put in place by the Act is not defeated.” In other words, it is for the birth parent to make their application, supported by the evidence on which they rely to establish a change in circumstances and the child’s welfare, to persuade the court that leave should be granted in accordance with the relevant criteria. Given the preliminary nature of the application, the prospective adopters will often play no part in the determination of the birth parents’ application, will not have sight of the evidence relied on and the matter will usually be determined on the basis of the written evidence and submissions.

The relevance, if any, of the Annex A report to the Court’s determination of a preliminary application for leave, the Annex A report being prepared and filed by the adoption agency to deal with the suitability of the prospective adopters to adopt, is likely to be limited.

As has already occurred in this case, there may be certain sections of the Annex A report that are accepted to be of some relevance to the issues before the court. Section B, which contains information about the parents and the child, may be of some relevance to the first limb of a leave application in determining whether there has been a change in circumstances. In particular, those sections of the report may provide information going to the necessary ‘benchmark’ against which the alleged change in circumstances can be assessed. However, in the usual course of events, that benchmark will be better and more accurately evidenced by the primary materials being filed from the care and placement proceedings, not the interpretation placed upon those materials by the social worker. The usual directions to take effect upon an application for leave being issued will therefore be for a range of documents to be filed from the previous proceedings, including most often threshold, final evidence, any expert assessment, the guardian’s final analysis and the court’s judgment. Those documents will provide the essential benchmark on which the court will rely, all of which will be disclosed to the birth parent. It will then be for the birth parent in the evidence he or she files to demonstrate sufficient change. Thus, whilst it cannot be said that certain sections of the Annex A are not relevant at all, the judge does not need to rely on that evidence, and usually will not rely on that evidence, in considering the leave application because there is much better more accurate information available to the court.

It is within that context that the decision of the Court of Appeal in Re S (A child) [2021] EWCA Civ 605 needs to be considered. In that case Macur LJ was faced with a highly unusual situation. The appeal concerned an application for leave to oppose an adoption order following placement of the child under a placement order. The issue which gave rise to the appeal was that the judge at first instance, in the absence of any other material from the care and placement proceedings, had read and placed great weight on the information contained within the Annex A report to form the benchmark from which change would be assessed. The birth mother was given no access to the Annex A report. Applying the principles of Re D within this context, Macur LJ held that the mother had been deprived of the opportunity to challenge any information that the Annex A report contained about her and which had been considered by the judge in reaching his decision. Her appeal was therefore allowed. This decision does not however set a general precedent for the disclosure of the Annex A report on an application for leave by a birth parent. It turned on the particular circumstance of the judge having relied on the Annex A to determine the leave application in the absence of the usual material from the care and placement proceedings.

The Court notes that practice may differ between different courts as to whether the Annex A will have been filed and available to the judge by the point at which a preliminary application for leave to oppose is determined. Clearly in this case it was, and the Court notes that in the standard directions order made by DJ O’Hagan the Court directed that the Annex A report be included in the judge’s bundle for the leave hearing. That appears to this court to be potentially unhelpful when the Annex A report is not necessary evidence for determining the leave application and can create the misleading impression to the birth parent that the judge may have read and considered material in reaching their decision to which the birth parent has not had access.

As to the second limb of the leave application, given the wide scope of enquiry this discretionary welfare stage may entail (as indicated by Re M [2023] EWCA Civ 404), there may again be material in the Annex A report beyond that about the birth parents and the child which would bear upon the court’s exercise of discretion. However, the potential relevance of the information is just one factor in the balancing exercise required. It does not demand disclosure.

The article 6 and article 8 rights of BM are clearly engaged by this issue. BM has a right to a fair and just process for determination of her leave application; the Annex A report beyond that already disclosed contains potentially relevant information in advancing her position. However, in assessing the weight to be attributed to BM’s article 6 and article 8 right to disclosure of the full Annex A report, the fact the report is of more limited relevance at this stage of proceedings and there is generally much better more accurate evidence that can be placed before the court on the issues of change and welfare, will be important considerations in the overall balancing exercise.

To weigh against the disclosure of any potentially relevant material from the full Annex A report is whether there is a real possibility such disclosure would cause significant harm to the rights and interests of the child. Whilst the child has a clear interest in matters pertaining to his adoption being determined on the best available evidence, in the court’s judgment, the possibility of harm to the child from disclosure of the Annex A is multifaceted. Disclosure of the Annex A may risk placement instability and even break down with profound harm to the child. In some cases, it may give rise to grave safeguarding concerns if the identity and address of the potential adopters becomes known. The risk of jigsaw identification now and in the future is a real cause of anxiety and fear to prospective adopters. Anything which impacts adversely on the stability of placement risks harm to the child. Although there is no evidence before the court BM would actively seek out G or seek to destabilise the placement, these are very real fears of PA in this case. An important aspect of G’s article 8 rights is respect for the stability and security of his family life with PA.

The delay engendered by any application for disclosure of the Annex A report is also contrary to the child’s welfare. Again, the harm is multifaceted. It causes further delay to achieving permanence for the child, depriving the child of the security and stability needed to continue to build and consolidate their crucial attachment to the prospective adoptive parents. Conversely, any delay caused in determining the leave application can prejudice the prospects of the birth parents persuading the court it is in the child’s welfare interests for leave to be granted given the greater time the child will have been settled within the prospective adopters’ home. Legal argument about disclosure of the Annex A report is thus unhelpful to the timely disposal of the leave application contrary to all parties’ interests.

The article 8 rights of the prospective adopters are closely aligned to those of G but extend to a separate and distinct interest in the privacy and confidentiality of the highly sensitive and personal information about them and their family that is contained within the Annex A report. Whilst absolute guarantees cannot and should not be given to prospective adopters that the Annex A report will not be disclosed beyond professionals, PA have a strong interest under article 8 in their private information remaining confidential unless wider disclosure serves a clear and legitimate purpose in safeguarding the rights and interests of others.

As FPR 2010 r 14.13 provides, risk to the stability and security of the adoptive placement may be mitigated by limited disclosure or the redaction or deletion of information. Disclosure of Section B of the Annex A containing information about the birth parents and the child gives rise to fewer issues of concern than disclosure of the full report, albeit it is not without risk. Other sections of the Annex A report can be redacted to try and remove identifying information or any information that may allow for jigsaw identification, but such a task is not only burdensome for local authorities, it is fraught with difficulty. As Coram BAAF submit, the possibility of a serious error being made or apparently innocuous information being used now or in the future to locate the adoptive placement is very real.

As regards the interference with BM’s article 6 rights arising from non-disclosure of the Annex A report, that interference can be mitigated by the alternative ‘benchmark’ evidence available to the court. To assist on issues pertaining to the child’s welfare, a statement can, and usually is, directed from the child’s social worker updating the court on the child’s current needs, how those needs are being met in placement, and the impact on the child’s welfare of leave being granted or refused. Such a statement provides the court with the necessary focused information to fairly determine the second limb of the application for leave without the risks of harm associated with disclosure of the Annex A.

Balancing the marginal relevance of the information contained within the Annex A report to the court’s determination of BM’s leave application, against the material risk of harm to the child and significant interference with the prospective adopters’ article 8 rights from disclosure, the balance prima facie falls against disclosure.

In the court’s judgment, having regard to the significance of the identified harms to G and PA, and given the preliminary nature of a leave application, the marginal relevance of the material contained within the Annex A report and the availability of other means to put the necessary evidence before the court to ensure a fair and just resolution of the issues, refusing disclosure of the full Annex A report is a necessary and proportionate interference with BM’s article 6 and article 8 rights. For the avoidance of doubt, the Court would have taken the same view regarding the disclosure of Section B of the Annex A report had the same not already been disclosed by consent.

It is important to recognise that the question of disclosure must be kept under review at each stage of the final adoption process. If leave is granted to BM to oppose the adoption, the question of whether the Annex A report should be disclosed both to BM, and indeed PA, will naturally need to be revisited to ensure fair participation by all parties in what will then be a final contested substantive hearing.

The Court is however satisfied that at the preliminary stage of a leave application, the full Annex A report should not be disclosed to BM.

Finally, and related to the issue of the stage of proceedings at which disclosure is sought, a central plank of BM’s submissions to the court was that the Annex A report should be disclosed to her in full regardless of whether or not she is granted leave to oppose. BM argues that PA’s application for a final adoption order is one which has profound and draconian consequences for her very parenthood and, as a party to the proceedings, she is thus entitled to be able to see and consider the evidence which is before the court in reaching its final determination.

In the court’s judgment, neither article 6 nor article 8 provide any sound basis for such an argument. The Annex A report is clearly relevant to the final determination of the court. Indeed, it will by the key piece of evidence relied on by the court in determining whether to make the final adoption order. However, returning to the core principles underpinning article 6, the fairness of the adoption process must be looked at as a whole and within the context of the previous care and placement proceedings. In striking a fair balance between the competing rights and interests engaged, Parliament has determined that once a plan of adoption has been approved by the court and a placement order made, the participation of the birth parents in future decision making will be strictly curtailed unless leave to oppose is granted. Specifically, in the absence of permission to oppose, the rules provide that the birth parents will not be entitled to address the court as to whether an adoption order should be made. Those statutory limitations on the participation of a birth parent in the final hearing, will materially shape the substance of what article 6 requires in terms of evidential disclosure to achieve a fair and just hearing. The balancing of the competing rights and interests cannot be divorced from the procedural and substantive purpose for which disclosure is sought.

Without prejudice to BM’s extant application for leave to oppose, the Court thus concludes having balanced the competing rights and interests, that the article 8 rights of PA and the rights and welfare interests of G will outweigh, and justify as necessary and proportionate, any interference with the article 6 rights of BM, properly understood within the context of the statutory limitations and prescriptions, at this very final stage of the adoption process.

BM’s application for disclosure of the full Annex A report is thus refused. Her application for leave to oppose the adoption application will be remitted to the Family Court at Wolverhampton for determination.