ON APPEAL FROM THE FAMILY COURT sitting at LEEDS
HER HONOUR JUDGE TROY
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE BLACK
LORD JUSTICE BEAN
|In the Matter of T (A Child) (Early Permanence Placement)|
Mr Lewis Donnelly (instructed by Jones Myers) for the father
Miss Sara Anning (appearing pro bono instructed by Graham Stowe Bateson acting pro bono) for the paternal grandparents
Miss Pamela Scriven QC and Miss Emily James (appearing pro bono instructed by Simpson Millar) for the prospective adoptive parents
Miss Deirdre Fottrell QC and Mr Martin Downs (instructed by Ison Harrison) for T (by his children's guardian)
Messrs Sugarι & Co filed a skeleton argument on behalf of the mother
Hearing date : 30 July 2015
Crown Copyright ©
Sir James Munby, President of the Family Division :
"Whether the proposed appeal has a reasonable prospect of success or not, the issues raised are likely to arise in other cases and justify consideration at appellate level."
On 21 July 2015 the local authority filed a respondent's notice seeking to challenge the order giving Mr and Mrs X leave to apply for an adoption order.
Early permanence placement
"(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and
(a) are considering adoption for C, or
(b) are satisfied that C ought to be placed for adoption but are not authorised under section 9 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.
(9B) Where this subsection applies
(b) the local authority must consider placing C with an individual within subsection (6)(a) [that is, "an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent"], and
(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter."
The key provision is section 22C(9B)(c).
"1. There may be cases where a local authority identifies that, based on the evidence available and on its assessment of the case, the long term permanence plan for a named child is likely to be adoption. The local authority is likely still to be considering other outcomes for the child, and may still be attempting rehabilitation with family, although this will be thought highly unlikely to succeed, and adoption is the most likely outcome. The local authority will already have considered wider family and friends as potential carers for the child and concluded that they are unlikely to be able to care for the child. It is possible that suitable family members may be identified or come forward after the child has been placed, and the authority will need to consider them should that occur. This is because the local authority has a continuing duty to place the child in the most appropriate placement for that child (see section 22C of the Act).
2. In some cases the ADM [agency decision maker] may have decided that the child's plan should be adoption, but the agency has not yet obtained a placement order or have parental consent to place the child for adoption.
3. A placement made following consideration under section 22C(9B)(c) of the Act (a section 22C(9B)(c) placement) with carers who are both approved prospective adopters and approved foster carers is a fostering placement under the Act and one which may lead to adoption by those foster carers. The advantage of this type of placement is that the child will be placed with foster carers who, subject to a placement order being made, or parental consent, are expected to go on to become the child's adoptive family. Delay in finding a permanent family for young children who have already experienced neglect early on in their lives may have a profoundly damaging effect on their development. This type of placement has potential to reduce this delay and the damage caused significantly.
4. The carers might be dually approved at the outset or they might be approved prospective adopters who have been temporarily approved as foster carers for a named child under regulation 25A of the 2010 Regulations.
5. It is possible that a section 22C(9B)(c) placement may not lead to adoption, for example because the child's plan changes where rehabilitation with the birth family is successful, because suitable family or friends come forward or because the court does not agree to make a placement order. This may mean that the child returns home or is moved to another permanence arrangement. But, for the vast majority of children who are in a section 22C(9B)(c) placement, progression towards adoption will be the anticipated outcome.
6. The child therefore benefits from an early placement with their eventual permanent carers. Local authorities will need to ensure that people who are willing to care for a child in this way are fully aware that the placement may not lead to adoption, and that they have been given appropriate information and training so that they understand their role and legal responsibilities as foster carers and ongoing support once the placement has been made."
I should also refer to what is said in paragraphs 10 and 28:
"10. If a family or friend carer is identified after the child has been placed, the local authority still has a duty to assess their suitability to care for the child, and remains under the continuing duty (section 22C(5) of the Act) to place the child in the most appropriate placement available. So if that relative or friend can offer the most appropriate placement, the local authority must move the child.
28. Section 22C(9A)-(9C) of the Act does not bring forward the point at which the child is removed from his or her birth parents, or affect the process by which that decision is made. Nor does it affect the process by which the decision to place him or her for adoption is made by the court or affect the rights of the birth family in that regard. If there is no parental consent, the decision whether to authorise the local authority to place the child for adoption remains one for the court at the placement order stage, and the birth parents retain their right to be involved in the process and to have full account taken of their views and wishes, as required."
"A Fostering for Adoption placement will only be made where there is clear evidence to the local authority that there is very little likelihood that the birth parents can resolve their problems or that other family members can take care of the child.
Where it is the right thing to do, a Fostering for Adoption placement has significant advantages for the foster carers/ adopters in enabling them to establish a relationship with the child at an early stage But it does mean living for a time with uncertainty about the final outcome and it may mean, very occasionally, that the child will move back home or to another placement and that can be very distressing for the Fostering for Adoption carers."
"The emotional uncertainty associated with possible and actual placement moves is held by the adults rather than experienced by the child in placement moves. In other words the adults take the risks.
The ultimate risk to the prospective adopters is that the baby they are fostering will be returned to birth family/parents and that they will have to endure the loss of the baby who they hoped to adopt."
"This is a temporary fostering placement until a decision in the court regarding the child's long term plan whether that is rehabilitation with birth parent/family member or for the child to be adopted."
"I have not been referred to any guidance from the higher courts as to the proper approach to be taken in determining applications by prospective adopters temporarily approved as foster carers under the early permanence placements provisions for leave to apply for an adoption order."
She then considered the decisions of the Court of Appeal in M v Warwickshire County Council (M and another intervening)  EWCA Civ 1084,  1 WLR 991, and Re A; Coventry County Council v CC and A  EWCA Civ 1383,  1 FLR 959. She continued:
"Therefore, although if this application for leave is granted there will be a delay for T in determining where his long-term future lies and although any delay is not in T's interests, delay in itself does not determine whether this application has a real prospect of success or should be allowed. I take into account that it would rarely be a proper exercise of my discretion to allow the inevitable delay to determine this application if there is a real prospect that an adoption order may be made."
"Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular. It is their case that, if in determining their application for leave to apply for an adoption order, the court is to take into account information filed in the care proceedings about the paternal grandparents and the care they could provide to T, that information should be disclosed to them so that they can consider it and make submissions about it."
Next, the local authority:
"The local authority, supported by both parents, invites the court to determine the application simply on the basis that the local authority has identified a family placement as being suitable for T, and that, taking into account the basis upon which T was placed with Mr and Mrs X, namely as foster carers, they are not entitled to information about the family placement and should not be granted leave to apply to adopt T as a matter of principle."
"The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents. It is the local authority's case that no such information is required to determine the application."
Finally, the guardian:
"The children's guardian invited the court to give careful consideration to both options for placement of T in the following terms :
"It may be that on the basis that Mr and Mrs X have been approved as adopters, the court would feel able to say that they have a reasonable prospect of success such that they can now be granted leave to apply to adopt. This would provide for a further hearing at which the court could determine the relative merits of the placement options. Alternatively, the court may feel that the court cannot determine the question of leave until it has before it all the information relevant to the merits of the placements.""
"The position taken by local authority means that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T, but only on the basis that there is a family placement identified by the Local Authority as suitable for him."
"in determining whether to make an order in respect of T and, if so, what the order should be, it would be necessary for the court to undertake an analysis of each of the options available and to assess each of these options in the context of the others, as the decisions of the Court of Appeal in the cases of Re B-S and Re R make clear."
"By virtue of the nature of this application by Mr and Mrs X, a freestanding application for leave to apply for an adoption order, I have no information about the paternal grandparents or their ability to meet the needs of T, other than being made aware by the local authority that it has filed a care plan providing for T to be placed in their care. The children's guardian has not filed a report in the care proceedings in respect of T and in these proceedings it has been explained that the children's guardian has not reached a concluded view about what the best interests of T throughout his life require but considers that the court should be in a position to undertake an analysis of the two realistic options now available for T, that is placement with his paternal grandparents or placement with Mr and Mrs X, before reaching a decision. No comparative analysis of these two options has been undertaken in the care proceedings."
"The benefits and detriments of an adoption order in respect of T would have to be considered alongside the welfare analysis of the other options for him and the very significant benefit to T of a placement with members of his birth family, in this case his paternal grandparents, would form a key part in that analysis and the assessment of the available options for T which would follow.
I take into account the significant delay in determining the applications in respect of T which will be the result of granting of leave to apply for an adoption order in this case but I balance against this that, in my judgment, T's welfare demands that the court should be in a position when considering what orders should be made in respect of him to assess the relative merits of each realistic option available for T before making a final order in his case and I endorse the views of the children's guardian in that respect. The fact that T was placed with Mr and Mrs X as foster carers subject to the agreement I have seen does not mean that he should be deprived of the opportunity for this assessment to be undertaken and I do not accept that it would be "wrong" as has been submitted, for the court to assess which option for care best meets T's interests because the paternal grandparents have already been assessed by the local authority as being suitable carers for him.
Despite the fact that the option of a family placement is available for T in this case and taking into account the decisions of the Supreme Court and the Court of Appeal emphasising the benefits of such a placement for any child and the requirement that the court gives proper consideration to the making of such a placement, I am unable in this case to find that there is no real prospect that the court will determine that the welfare of T throughout his life requires that he is made the subject of an adoption order or that the prospects of success in this case are fanciful and not realistic. I therefore grant leave to Mr and Mrs X to apply for an adoption order in respect of T.
However, there must be an equally real prospect in this case that he will be placed in the care of his paternal grandparents because of the benefits which they may be able to offer him, which include the fact that a placement with them would be a placement in the birth family. So although I grant leave for an application for an adoption order to be made, Mr and Mrs X, the mother, the father and the paternal grandparents must not assume that I have decided that T will be made the subject of an adoption order. I have not carried out the exercise balancing what Mr and Mrs X can offer against what the paternal grandparents could offer. I do not have any information about the paternal grandparents. Before determining the applications, that balancing exercise will have to be undertaken. So this is not a final decision in respect of T. It is merely a determination that the two options for his care should be before the court."
"In relation to party status, it was necessary for Mr and Mrs X and the grandparents to be involved in the proceedings to allow the court to consider each option so that they could hear all the evidence, make submissions and allow the court to make a proper decision as to which option best meets the needs of T."
The grounds of appeal and the parties' submissions
i) Judge Troy was wrong to give Mr and Mrs X leave to apply for an adoption order. Their application was premature and should not have been considered until such time as the court had determined that T's future welfare required his adoption rather than a family placement. That process has not been in any way altered by the implementation of the statutory early permanence placement scheme. Mr Tyler adds that, if the appeal against Mr and Mrs X's joinder is successful, their application for an adoption order will be left hanging in the air. So, he submits, on that ground also the appeal on this point should succeed.
ii) Furthermore, Mr and Mrs X had failed to demonstrate that they had a real prospect of success in relation to an application for an adoption order, and that T's welfare required their being given leave to apply for, such an order.
iii) Judge Troy was wrong to join Mr and Ms X as parties to the care proceedings and failed to consider the procedural ramifications and consequences of doing so.
iv) Judge Troy failed to have sufficient regard or attach appropriate weight to the authorities about the primacy of family placements.
v) Judge Troy failed to have sufficient regard or attach appropriate weight to the fact that Mr and Mrs X were temporary foster carers and that in the early permanency placement agreement dated 3 December 2014 they had expressly agreed that their adoption of T would be contingent on his not being rehabilitated to his family.
vi) On the contrary Judge Troy gave excessive weight to the facts (a) that Mr and Mrs X were approved adopters and that the placement had been made by way of an early permanence placement, (b) that they had cared for T for 6 months and (c) that there was evidence of attachment between T and them.
As the argument developed, it became apparent that there was a degree of overlap in these submissions.
The statutory schemes
i) Unless the child has had his home with them for at least one year, the applicants must obtain the leave of the court to apply for an adoption order: sections 42(4) and 44(4) of the 2002 Act.
ii) Having obtained the leave of the court, if required, in accordance with section 44(4), the applicants must give the local authority notice of their intention to adopt not less than three months before the application is made: sections 44(2) and (3) of the 2002 Act as explained by Wilson LJ in Re A; Coventry County Council v CC  EWCA Civ 1383, para 9. This triggers the local authority's duty to investigate in accordance with sections 44(5) and (6).
iii) The court must be satisfied that "sufficient opportunities to see the child with the [applicants] together in the home environment have been given to the local authority within whose area the home is": section 42(7)(b).
iv) The court must have agreed to dispense with the parents' consent in accordance with sections 47(2)(c) and 52(1)(b).
"the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."
"family ties may only be severed in very exceptional circumstances and everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing" (emphasis added).
I draw attention to the words I have emphasised. What might otherwise 'tip the balance' in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
"In ordinary circumstances I would not expect the court to regard it as appropriate to join foster-parents as parties to proceedings of this kind. To do so would in most cases run counter to the clear policy of the Act reflected in ss 9(3) and 10(3). The assistance afforded by foster-parents to the effective functioning of any system of child care is invaluable and should never be discouraged. Theirs is not a role, nevertheless, which would normally make it necessary for them to be joined formally as parties to proceedings in which the future upbringing of the children in their temporary care is in issue. There will generally be ample means for making their views known to the court, either directly as witnesses or indirectly through the inquiries of the guardian ad litem, without the necessity of adding them formally as parties."
"In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J in Re R (Care: Plan for Adoption: Best Interest)  1 FLR 483."
"The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her."
"I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child's committal into care, the placement order is not the court's last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by His Honour Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child."
My own experience mirrors that of Wilson LJ.
"I respectfully agree with Hedley J's observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy."
"family ties may only be severed in very exceptional circumstances It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."
Indeed, there are passages in Judge Troy's judgment for example, where she refers to a "comparative analysis of these two options", without at the same time spelling out that adoption is appropriate only as 'a last resort' and if 'nothing else will do' which do make me wonder whether she may not in fact have fallen into precisely that error here.
"Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular."
"The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents."
"The position taken by local authority means that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T."
A final matter
Lady Justice Black :
Lord Justice Bean :