ON APPEAL FROM THE COVENTRY COUNTY COURT
HIS HONOUR JUDGE BELLAMY
LOWER COURT NO: CV11C00130
Strand, London, WC2A 2LL
B e f o r e :
DAME JANET SMITH
| COVENTRY CITY COUNCIL
|- and –|
|PGO and FEO||First and Second Respondents|
|- and -||CW||Third Respondent|
|- and -||RB||Fourth Respondent|
|- and -||LB and CB (by their Children's Guardian)||Fifth and Sixth Respondents|
Mr Alistair MacDonald QC and Ms Theresa McCormack (instructed by Button Legal LLP, Coventry) appeared for the First and Second Respondents, the foster parents.
Miss Elizabeth McGrath (instructed by Kundert Solicitors, Coventry) appeared for the Third Respondent, the mother.
The Fourth Respondent, the father, did not appear.
Mr Robin Arwel Lewis (instructed by Varley Hibbs LLP, Coventry) appeared for the Fifth and Sixth Respondents, the children, by their Children's Guardian.
Hearing date: 18 April 2011
Crown Copyright ©
A: THE TWO QUESTIONS
(a) When short-term foster parents suddenly give notice of intention to adopt their foster child and thus wish to prevent the local authority's imminent removal of him from their home into the home of prospective adopters pursuant to a placement order, does a county court judge have jurisdiction to make an injunction against the local authority's removal of him and, if so, what considerations inform the exercise of such jurisdiction?
Such is the main question posed by this appeal.
(b) Is a child "placed" for adoption when an adoption agency ratifies the match between a child and prospective adopters and when thereafter he first meets them or is he "placed" for adoption only when he subsequently begins to live with them?
Such is the subsidiary question posed by this appeal.
C: THE ADOPTERS
(a) the adopters should take the children home for that day;
(b) they should do the same on 22 February, albeit for longer; and
(c) at 10:00am on 23 February they should collect the children from the foster home in the presence of the link worker and take them to live with them.
D: THE FOSTER PARENTS
(a) following a discussion with the foster parents on 19 January 2010 about their possible adoption of the children, the social worker then allocated to the children noted that she had advised them that, if they wished to proceed with the idea, they needed to "let [her] know asap and put it in writing";
(b) the social worker noted that on 10 February 2010 the foster mother had told her that, partly in the light of the mother's knowledge of their address and her wish to continue to have contact with the children, she and the foster father "had carefully considered about the adoption and do not wish to proceed";
(c) the chair of a meeting attended by the foster mother on 29 June 2010 noted its upshot as having been that the foster parents were again considering whether to seek to adopt the children, that the foster mother had been given a leaflet about adoption, that they would need to make a decision about it and that, if they decided to proceed, they would need to be the subject of an assessment;
(d) following a further meeting on 7 July 2010 (or, rather, alleged meeting in that the foster mother says that it did not take place), a social worker noted that the foster mother had said that they had decided that they would be unable to proceed with the possible adoption of the children;
(e) on 23 September 2010, according to her note, a social worker freshly allocated to the children made her first visit to the foster home and was told by the foster mother that she had originally wanted to adopt the children but that, following discussions with the previous worker, she had changed her mind;
(f) on 19 October 2010, according to a note made by her link worker, the foster mother told her that she had previously wanted to adopt the children but that, for financial reasons, the foster father did not consider that they could do so; and
(g) on 13 January 2011, according to another note made by the link worker, the foster mother told her that she did not wish to adopt the children, that she knew that they had to move on but that it would be painful for her and the family.
E: THE APPLICATION FOR ADOPTION ORDERS
"If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application."
The foster parents satisfied the condition set by the subsection and had no need to seek leave under subsection (6).
"(3) The notice must be given not more than two years, or less than three months, before the date on which the application for the adoption order is made.
(5) On receipt of a notice of intention to adopt, the local authority must arrange for the investigation of the matter and submit to the court a report of the investigation."
F: THE JUDGE'S JURISDICTION TO MAKE THE INJUNCTION
"(1) This section applies if the child's home is with local authority foster parents.
(4) If …
(a) the child has had his home with the foster parents at all times during the period of one year ending with the removal, and
(b) the foster parents have given notice of intention to adopt,
the following persons may remove the child.
(5) They are –
(c) a local authority … in the exercise of a power conferred by any enactment, other than section 20(8) of the [Children Act 1989]."
If a placement order has been made in favour of a local authority, their power to remove a child from the home of foster parents is conferred not by s.20(8) of the Act of 1989 but by the conjunction of s.3(1) of that Act and of s.25(2) of the Act of 2002.
"A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority."
The subsection therefore expressly confers upon the local authority a power not only to place the child for adoption but also to choose the identity of those with whom to place him.
"Order for interim injunction
118.—(1) The court may grant an interim injunction.
(2) Paragraph (1) does not limit any other power which the court may have to grant an injunction.
(3) The court may grant an interim injunction whether or not there has been an application.
Time when an order for an interim injunction may be made
119.—(1) An order for an interim injunction may be made at any time, including—
(a) before proceedings are started …
(Rule 19 provides that proceedings are started when the court issues an application form.)
(a) paragraph (1) is subject to any rule, practice direction or other enactment which provides otherwise; and
(b) the court may grant an interim injunction before an application has been made only if—
(i) the matter is urgent; or
(ii) it is otherwise desirable to do so in the interests of justice.
(3) Where the court grants an interim injunction before an application has been commenced, it may give directions requiring an application to be commenced."
"… I consider that jurisdiction is conferred upon the county court by s 38 of the County Courts Act 1984 (and upon the High Court by s 37 of the Supreme Court Act 1981) to enjoin a local authority from placing a child for adoption even if authorised to do so by a subsisting placement order; that such an injunction can be sought, no doubt on a very temporary basis, even without notice to the local authority; and that it can be sought at any time after issue of the application for leave or even prior to its issue provided that an undertaking is given to issue it immediately."
None of us proceeded to address the principles by which the county court should determine such an application for an injunction in restraint of placement. But in considering a situation, such as that then before the court, in which a local authority had already effected the placement (in order, so he concluded at , to "scupper" the application for leave fixed for hearing on the following day) Wall LJ made the following valuable observations at :
"… if this kind of disgraceful conduct is repeated in another case, the likelihood is that the agency's decision to place the child would be the subject of an application for judicial review. Speaking for myself, I can see no reason why the Administrative Court should not declare unlawful a decision such as that taken by the agency in the instant case. If it did so, it would quash the decision to place the child for adoption. It could then give directions for the hearing of the father's application under s 24(2) in the county court, and restrain the agency, by injunction, from placing the child for adoption pending the determination of that application."
G: THE PRINCIPLES APT TO THE EXERCISE OF THE JUDGE'S JURISDICTION
"In our judgment, although American Cyanamid principles are to be applied in the present case, this must be in the context of the public law questions to which the judicial review proceedings give rise. Such proceedings are, generally speaking, intended to provide swift relief against abuse of executive power."
(a) Is there a real prospect that the foster parents will establish that Coventry's decision to remove the children from them notwithstanding that they now wish to adopt them is, by reference to public law principles, irrational, disproportionate or otherwise unlawful or is otherwise in breach of their rights, or those of the adopters or, in this context overarchingly, of those of the children, under Article 8 of the ECHR?
If the judge's answer to question (a) had been negative, he should have refused to grant the injunction. But if, and only if, his answer to the question had been affirmative, he should have proceeded to address further questions which, without even purporting to be prescriptive, I suggest might have run along the following lines:
(b) Have the foster parents brought the proceedings with reasonable promptness and, if not, how does their delay affect whether an injunction would now serve the interests of the children?
(c) Although in form an application only for an interim injunction, might any injunction be likely to continue (or to be continued) for a substantial period of time and, if so, with what likely consequences?
(d) Might any injunction jeopardise the candidacy of the proposed adopters?
(e) But would the consequence of a refusal of an injunction be to disable the foster parents from applying to adopt the children?
(f) Is the status quo in the present case that the children are living with the foster parents or is it that they are virtually at the end of an agreed programme of removal into the home of the adopters and so would an injunction therefore more properly be regarded as preserving, or as disrupting, the status quo?
(g) Does the issue whether to grant the injunction affect any aspect of the welfare of the children not addressed by answers to the above questions?
H: THE APPLICATION FOR REVOCATION OF THE PLACEMENT ORDERS
(a) on 3 August 2009 Brent's adoption and permanency panel approved the match of the child with prospective adopters;
(b) on or before 17 August 2009 Brent ratified the decision to place the child with them;
(c) on 17 August 2009 the child first met the adopters;
(d) introductory meetings continued for the next four days;
(e) on 21 August 2009 the mother's solicitor notified Brent that she proposed to apply for leave to revoke the placement order; and
(f) on 24 August 2009, unaware of the notification, the social workers caused the child to move to live with the adopters.
The judge held that the child had been placed with the adopters on 17 August 2009 and so any application for leave to revoke made by the mother on 21 August 2009 would have been too late. He held, at , that the placement had occurred on 17 August because such was the date "when all the relevant legal formalities had been concluded and the introductions process began". He had observed, at , that:
"… the introductions process is not a process that takes place before the child in question has been placed for adoption: it is the first step in the relationship between the child and the prospective adopters after the child has been 'placed for adoption' by the authority."
"References in this Act (apart from this section) to an adoption agency placing a child for adoption –
(a) are to its placing a child for adoption with prospective adopters, and
(b) include, where it has placed a child with any persons (whether under this Act or not), leaving the child with them as prospective adopters;"
In my view, however, the words in (b) provide support for the proposition that a child is placed with prospective adopters only when he begins to live with them: for an adoption agency cannot 'leave' a child with persons as prospective adopters before he has begun to live with them. Coulson J reached his opposite conclusion mainly by reference to the decision of this court in Re S (Placement Order: Revocation)  EWCA Civ 1333,  1 FLR 503. The decision was that a circuit judge had been wrong to hold that a child placed with foster parents who were actively considering whether to apply to adopt him had been placed with them for adoption. Inevitably Thorpe LJ stressed, at  and , that the child could not be placed with the foster carers for adoption until the local authority had approved the match of the child with them and had resolved to leave him with them in their fresh capacity as prospective adopters. Since the child was living with them, the court did not focus on the need for a child to have begun to live with proposed adopters before he can be said to have been "placed" with them. But I do not share Coulson J's interpretation of the remarks of Thorpe LJ as indicating that a local authority's resolution to place a child with identified adopters itself effects that placement.
I: DEVELOPMENTS FOLLOWING THE HEARING
(a) the foster father's criminal record when a young man, including an offence of violence;
(b) disputed allegations of domestic violence recently made against him by his former partner, being the mother of three children by him;
(c) his long-standing loss of contact with those children;
(d) an assessment, albeit under appeal, raised against him by the Child Support Agency in the sum of £23,000 referable to his liability to support them; and
(e) the overall financial insecurity of the foster home.
So Miss Lilley's interim report was equivocal.
"statutory visit to both children at adoptive placement. Both children were very relaxed and happy. [C] was half asleep on adoptive mother's lap and [L] running around playing with toys and playing in particular with adoptive father. [L] calling adopters Mummy and Daddy. Adopters said the children now have all their toys and the introductions have progressed positively with a definite and visible bond developing. The children's bedrooms are ready and we had a discussion about bedtime routines. The adopters will gradually introduce a story at bedtime as currently [L] watches tv till he falls asleep. Adopters very excited by the placement and the house full of cards and well wishes from friends and family. Very positive visit, plan progressing well."
Dame Janet Smith: