England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
HIS HONOUR JUDGE ORRELL
DE13Z00015

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/10/2013

Black LJ:

1. This is a second appeal against the making of a placement order in relation to L, a little girl who was born on 31 March 2009 and is therefore 4 years old.
2. The appellant is L's father (F). L's mother (M) supports F's appeal but has not appeared or been represented in front of us. The respondents to the appeal are the local authority (LA) and L by her children's guardian (the guardian).
3. On 14 December 2012, the family proceedings court made a care order in respect of L and, having dispensed with the consent of the parents to L being placed for adoption, a placement order. There has been no appeal against the making of the care order but the parents appealed against the placement order. On 13 March 2013, HHJ Orrell dismissed that appeal. F was given permission to bring this second appeal to the Court of Appeal on the basis that the case gives rise to an important point of principle.
4. The special feature of this case which gives rise to that point of principle is that L is a troubled child who, according to the psychological evidence, requires intensive therapy. The psychologist did not describe L as "unadoptable" but said that she is not ready for adoption now and that a programme of therapeutic parenting would have to be completed first. As the therapy programme was designed to strengthen the bond between L and her main carer, there were serious questions as to whether it would be in L's interests to be moved following it, whether she would cope with such a move and whether she would settle in a new placement. The psychologist said in a written answer given in November 2012 that:

"a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers. I recognise the impact of the latter could be lessened by good transition planning and also access to advice and possibly therapy during the initial stages of placement. However, it is difficult to make predictions or recommendations at this point."

5. Notwithstanding the open questions, the psychologist was in favour of a search being commenced for suitable adopters sooner rather than later. She stressed that the potential adopters would have to have a very good understanding of what L needed; she hoped that experienced parents would be found who had a proven track record.
6. The question was whether it was open to the justices in the family proceedings court, presented with this evidence, to say that at the date of the hearing, adoption was in L's best interests and to make the placement order that would assist LA in its search for prospective adopters. Judge Orrell decided that the justices were entitled so to decide. We must consider whether he was right.

The law

The statutory scheme under the Adoption and Children Act 2002

7. Section 21 deals with placement orders. It provides:

(1) 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.

(2) The court may not make a placement order in respect of a child unless –

(a) the child is subject to a care order,

(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c) the child has no parent or guardian.

(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied –

(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b) that the parent's or guardian's consent should dispensed with.

This subsection is subject to section 52 (parental etc consent).

(4) [not necessary for this appeal].

8. Here section 21(2)(a) applies. As the parents do not consent to the child being placed for adoption, a placement order can only be made if section 21(3)(b) also applies, that is the court is satisfied that their consent should be dispensed with. The circumstances in which consent should be dispensed with are set out in section 52.
9. Section 52(1) provides that:

"The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption or to the making of an adoption order in respect of the child unless it is satisfied that –

(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or

(b) the welfare of the child requires the consent to be dispensed with."

10. A local authority has a duty to apply for a placement order in the circumstances set out in section 22(1) and (2) which provide:

(1) A local authority must apply to the court for a placement order in respect of a child if –

(a) the child is placed for adoption by them or is being provided with accommodation by them,

(b) no adoption agency is authorised to place the child for adoption,

(c) the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and

(d) the authority are satisfied that the child ought to be placed for adoption.

(2) If –

(a) an application has been made (and has not been disposed of) on which a care order might be made in respect of a child, or

(b) a child is subject to a care order and the appropriate local authority are not authorised to place the child for adoption,

the appropriate local authority must apply to the court for a placement order if they are satisfied that the child ought to be placed for adoption.

11. Where a placement order is made, parental responsibility for the child is given to the adoption agency who may determine that the parental responsibility of the parents is restricted, see section 25.
12. The placement order continues in force until it is revoked under section 24 or an adoption order is made in respect of the child or the child marries, forms a civil partnership or attains the age of 18, see section 21(4).
13. Section 24 provides that a placement order may be revoked on the application of any person but that a person other than the child or the local authority may not apply unless the court has given leave to apply and the child has not been placed for adoption by the authority. Leave cannot be given unless the court is satisfied there has been a change of circumstances since the placement order was made, see section 24(3).
14. If the child is placed for adoption following the making a placement order, the parents cannot oppose the making of an adoption order without leave of the court, which cannot be given unless the court is satisfied that there has been a change of circumstances since the placement order was made, see section 47.
15. Whenever a court is coming to a decision relating to the adoption of a child, section 1 applies. Section 1(2) provides that the paramount consideration of the court must be the child's welfare throughout his life. The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare, see section 1(3). Factors to which the court must have regard, amongst others, are set out in section 1(4).

Authorities

16. We were invited to have regard to three authorities concerned particularly with placement orders. They are, in the order in which they were decided: Re T (Children: Placement Order) [2008] EWCA Civ 542 [2008] 1 FLR 1721, NS-H v Kingston-upon-Hull City Council and MC [2008] EWCA Civ 493 [2008] 2 FLR 918 and Re P (children: parental consent) [2008] EWCA Civ 535 [2008] 2 FLR 625.
17. Re P is important because it establishes that before parental consent can be dispensed with under section 52, the court has to be satisfied that the welfare of the child throughout his life requires adoption, rather than something short of adoption. That is the starting point for the arguments in this case.
18. The parties invited our attention to Re P in relation to placement orders more generally and I will return to that later. I propose to deal with the trilogy of cases on placement orders in chronological order.
19. Re T was the first of the decisions. It will be necessary to look quite closely at its facts because there is an issue as to whether it can be distinguished from the present case. The argument in Re T, which found favour with the Court of Appeal, was that it was too early for the judge to have made the placement order that he made because (as Hughes LJ put it at the start of his judgment, see §2) "the children were very disturbed and the local authority proposed to place them in a specially selected therapeutic foster placement for an unspecified period not shorter than six months before making the decision how and where to place them for the long term". Different estimates were given of how long the placement might need to last but the judge's conclusion was that it would be not less than six months and could be up to a year and conceivably a little beyond that.
20. The purpose of the therapeutic placement was, as one of the independent social workers explained it (summarised by Hughes LJ at §5):

"not so much as to effect in that short time a transformation of the boys to ordinary undamaged children, but to equip them with some ability to begin to form attachments, to enable the social work team responsible for them to see what kind of long term substitute parents they would need, and to help prospective parents to see what task they were taking on. A further purpose of this proposal was, concurrently with the specialist placement, to reduce contact with the parents, once again to help to boys form attachments elsewhere."

21. As for the local authority's plan, it was (§7):

"for adoption as the best long term solution for these boys. The care plan left open the question of whether they should be placed for adoption together or separately, for decision in the light of experience of the specialist foster placement. Although the care plan did not say so, as it should have done, the Local Authority made plain from the outset that its contingency plan, if placement for adoption were to prove impossible, was for long term fostering."

22. Hughes LJ said that there "was clear evidence before the Judge that adoption was the best solution for these boys if it could be achieved" (§8).
23. The father's argument on appeal was very similar to that advanced in this case. More detail can be found at §11 of Hughes LJ's judgment but the essence was that it was too soon to be able to say that adoption was in the best interests of the children and that it would not be known whether it would be until the outcome of the therapeutic fostering was known; long term foster carers may turn out to be the right option rather than adoption because foster carers can offer somewhat different qualities.
24. Hughes LJ gave short shrift to the idea that there should be no placement order if it was anticipated that there would be real difficulty in placing the child. He accepted that a placement order could be made even if there was a real possibility that an adoptive placement would not be found at all. He said that "mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order" (§17) and that:

"a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the Judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not."

25. The key passage of Hughes LJ's judgment for our purposes is, in my view, §18. There he said:

"But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys' best interests, because their needs could better be met by the kind of substitute family found only in long term fostering."

26. Accordingly, the court in Re T found that it had been premature of the judge to find that adoption was in the boys' best interests and to make the placement order. Amongst the reasons that the trial judge had given for making the placement orders was that this would give the local authority the greatest possible certainty and flexibility for the future, enabling them to place the children at short notice (see §13) but those potential benefits were not sufficient to alter the outcome, as Hughes LJ made clear in §19.
27. In NS-H v Kingston-upon-Hull City Council and MC, the Court of Appeal was considering the question of leave to apply to revoke a placement order which had been made in October 2007 in relation to a 3 year old boy. The problem which had led to the intervention of the local authority and the making of care and placement orders was the child's serious failure to thrive. The child did not put on weight in foster care either and not long after the making of the orders, the local authority decided that it would not be right to pursue the plan of adoption for the child until he started to thrive. In January 2008, the mother issued an application for leave to apply for the revocation of the placement order. By mid-February 2008, the local authority's plan was to move him to a new foster home and if his failure to thrive could be remedied there, then to move him to an adoptive home.
28. The Court of Appeal allowed the mother's appeal against the judge's refusal to give leave for her to apply for the revocation of the placement order. Wilson LJ drew attention to section 22(2) (see above) which provides for a local authority to apply for a placement order in relation to a child who is the subject of a care order "if they are satisfied that the child ought to be placed for adoption" and section 1(1) and (2) (above) which have the effect that a court will make a placement order if it is satisfied that the child's placement for adoption would serve his welfare (§28). Since October 2007 when the judge had found himself satisfied of that, the plan for adoption had been shelved for an indefinite period until the child was able to thrive. Wilson LJ said at §28, just before a citation from §18 of Hughes LJ's judgment in Re T:

"In these circumstances there is a real prospect that the mother can persuade the court that it is not currently appropriate for the placement order to remain in being. For it is an insufficient foundation for a placement order that the long-term aim of the court is that the child should be adopted. The necessary foundation is that – broadly speaking – the child is presently in a condition to be adopted and is ready to be adopted, even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all."

29. Wilson LJ took the view that it was in the child's interests that the apparent change in his current suitability for adoption should be examined by the court. In the circumstances of that case, it did not matter that there might be no real prospect of the child returning to live at home with the parents.
30. I return to Re P as the final case in the trilogy.
31. That case concerned two children in relation to whom the judge made placement orders, dispensing with parental consent under section 52 of the Adoption and Children Act 2002. The local authority were searching for both fostering and adoptive placements for the children, recognising that they might not be successful in finding adopters for them, in which case long term fostering would have to be the plan.
32. The Court of Appeal held that there was no objection in principle to dual planning of this type in appropriate cases and that there could be compelling pragmatic reasons for taking that approach as it could shorten the period during which the child had to remain in limbo and many prospective adopters would come forward only if a placement order had been made. Wall LJ said that:

"a local authority can be 'satisfied that the child ought to be placed for adoption' within the meaning of s 22(1)(d) of the 2002 Act even though it recognises the reality that a search for adoptive parents may be unsuccessful and that, if it is, the alternative plan will have to be for long-term fostering. The wording, after all, is 'ought to be' not 'will be'. That being so there can be no objection in principle to dual planning in appropriate cases." (§137)

33. In a footnote to the judgment, the court compared Re P with Re T which it considered was "plainly distinguishable and in no sense inconsistent with the dismissal of the appeal in the instant case" (§157). Two features from Re T were picked out as distinguishing it, one being that, in contrast to the children in Re P, "the children were nowhere near ready to be adopted".

The decisions of the Family Proceedings Court and HHJ Orrell

34. We can see from the justices' reasons that Mr Cranfield, who has appeared for F at all stages of this case, submitted to the justices that it would be premature to make a placement order "because of the uncertainty surrounding the therapy [that L needed] and its duration and outcome". He cited Re T and NS-H v Kingston-upon-Hull City Council and MC to them but they felt that the present case differed from those cases "in that the Local Authority have a clear, long term plan for adoption which includes the provision for adoptive parents to be involved in L's ongoing therapy".
35. In their resumé of the evidence, the justices said that all the professionals involved in L's care agreed that adoption would give her the best opportunity of security and permanence, that the adopters would need to be highly skilled, that it may therefore take some time to identify appropriate adopters and that delay needs to be minimised in L's best interests. They also recorded that the guardian had agreed that LA needed to start the search for adopters as soon as possible so that they could be drawn into the therapeutic process with L. They concluded that it was in L's best interests to make a placement order so as to give LA the earliest opportunity to identify an appropriate adoptive family for L.
36. Absent from the justices' resumé, however, was any reference to the evidence of the psychologist that it would not be known until some way into the therapy whether adoption would ultimately be in L's best interests.
37. Dealing with the appeal from the justices, Judge Orrell carefully set out the evidence that the psychologist had given, including that the programme of therapeutic parenting that L needed was designed to strengthen the bond between her and her carer which "inevitably leads to serious questions being raised as to whether it would be in L's interests to be moved and indeed, if she would cope with such and settle in a new placement", that "a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers", that "it is difficult to make predictions or recommendations at this point", and that one "can't really know until about 12 months elapse whether the child can be moved or placed elsewhere".
38. The judge commented that it was quite difficult to ascertain the burden of the evidence before the justices and he reminded himself of the advantage that the trial court has over the appeal court in that it has seen the witnesses. He distilled his own summary of the psychologist's recommendations. It is notable that it makes no reference to her evidence, which he had cited earlier in his judgment, that it would not be possible to say until some way into L's therapy whether a move to adopters would actually be in her best interests.
39. At §33, the judge correctly isolated the essential issue in the case as being:

"Whether, on the one hand, the Justices were entitled to say that, at the date of the hearing, adoption was in L's best interests so that she ought to be adopted, notwithstanding that important work had to be done with her prior to placement and after placement and that finding a suitable adopter might be very difficult and might be impossible or, whether on the other hand, important work had to be done with L at the end of which (and only at the end of which) it would be known whether an adoption was going to meet her needs or whether long-term foster care with skilled carers would meet her needs better."

40. He then concluded that the justices' decision was "within the generous ambit of their discretion". He said that "having decided on the evidence before them that L ought to be adopted if at all possible, [they] followed the recommendation of the social worker and the guardian to permit the local authority to start searching for an adoptive placement so as to avoid delay and to achieve the best possible result for L" and "the approach they took was consistent with the decision of the Court of Appeal in Re P", Re T being correctly distinguished.

The parties' submissions to us

41. On behalf of F, Mr Cranfield argued that, given the evidence of the psychologist and some of the guardian's replies in cross-examination, the justices could not have been satisfied on the evidence before them that L's welfare required adoption. It was not enough that adoption would provide L with the best chance of security and permanency if it could be achieved. In short, this case was indistinguishable from Re T; it was not a Re P case. The difference between the two authorities was, he submitted, that in Re P, the uncertainty that existed was over whether a placement could be found whereas in Re T, the uncertainty was as to whether adoption would be right for the children. In the present case, it was not yet known whether adoption would be the right way forward for L so the uncertainty was of the Re T type.
42. Mr Cranfield conceded that there would be advantages were LA able to make a full attempt to find an adoptive placement for L whilst carrying out therapy with her but the law did not permit it and if a placement order were to be made at this stage, significant safeguards would be lost. He pointed out that the court would lose its role in determining what was in L's interests. Suppose, for example, that the therapist and the local authority disagreed as to whether adoption was right for L, he said, pointing out that there would be no requirement for LA to return the matter to court in those circumstances. In contrast, if no placement order were made now, LA would have to apply for a placement order when they considered that the time was right, thus involving the court and providing an opportunity for the parents to contribute to the decision and for L's interests to be looked after by a guardian.
43. For LA, Mr Semple commended the judge's analysis of the evidence, including his summary of the psychologist's evidence. He argued that the clear evidence was that an adoptive placement was in L's best interests and would give her the best chance of security and permanence; this was not contingent on the outcome of therapy.
44. He relied on the fact that, as can be seen from the authorities, a placement order can be made even though it is not certain that an adoptive placement will follow or that it can be achieved without "a good deal of investigation and preparation" (see Re T §17). Similarly, it is established that dual planning is acceptable in appropriate cases. He submitted that L's therapeutic placement and the search for highly skilled adopters fell squarely within the description "investigation and preparation".
45. He submitted that without a placement order the pool of adopters would be artificially limited and there would be undesirable delay for L. He also said that without a placement order which would enable prospective adopters to be found, it would not be possible to achieve the process envisaged by the psychologist as this involved reviewing the progress of therapy in the context of specific information about potential adopters and also involving the prospective adopters in the therapy in due course. L would therefore remain in limbo with no chance of adoption.
46. Whilst Mr Semple accepted that there were similarities between this case and Re T, there was a crucial difference, he said, in that unlike in Re T, in this case the fundamental question of whether adoption is in L's best interests has been answered in the affirmative and the therapy she is to receive is by way of preparation for placement. What is important in the present case is, he submitted, the dovetailing of L's needs and the availability of potential adopters. The evidence established, he submitted, that if appropriate adopters are available, adoption is in L's best interests or, putting it another way, that adoption is in L's best interests but it will require therapy and the right placement.
47. Miss Drew for the guardian also sought to support the decisions of the justices and the judge. She submitted that it is not necessary for a child to be ready to be adopted at the time when the placement order is made. She pointed out that many children have emotional problems that require therapeutic intervention or need help to come to terms with the change in their circumstances before they can be placed. It needs to be possible to make placement orders in respect of such children, she said, in order to avoid delay and in order to respect the scheme of the 2002 Act which envisages placement orders being sought at the same time as care orders. Like LA, she emphasised the need for a placement order in order to encourage adopters to come forward.
48. She relied on the evidence of both the psychologist and the guardian that L needed a permanent placement outside the family and argued that the evidence established that L ought to be adopted if at all possible. Seeking, I think, to diminish the weight of the psychologist's evidence, she submitted that her messages were contradictory and also that she appeared to have envisaged that L could stay in her present placement which was by no means certain. However, she agreed that the guardian's own evidence to the justices was correctly noted at C235 of the notes of evidence as follows: "I can't say what the outcome of therapy will be and whether it confirms it will be an adoption placement in her best interests but she needs permanency – away from the family unit. She needs to be settled in a secure permanent placement to meet her needs."
49. She submitted that in resisting the making of a placement order, F was attempting to impose some form of supervision of LA's actions which was totally contrary to the statutory scheme in the 2002 Act. She argued that the appropriate safeguard for the parents, if a placement order were to be made and then adoption were to prove to be inappropriate, was that they could apply under section 24 for the court to revoke the order.
50. She listed what she said were significant differences distinguishing Re T from the present case, including the age of the children, the time they had been in care, the degree of their problems, their lack of progress so far and the purpose of the therapy they were to be given.

Discussion and decision

51. Despite the resourceful attempts of the LA and the guardian to persuade us that this case can be distinguished from Re T, I am afraid that I cannot see any proper distinction. However much agreement there was that adoption would be the most secure outcome for L if it was ultimately possible to place her, the clear evidence of the psychologist was that it would not be possible to tell whether adoption would in fact be the right course for her until some way into her therapy. The guardian was saying something not dissimilar in the passage of her evidence that I have set out above. Of course, when the question does come to be addressed when the appropriate point in L's therapy has been reached, the answer is likely to depend not only on the progress L has made but also on what adopters are available. However, that does not detract from the bald fact that when the justices heard this case, the evidence was not such as to establish that L's welfare throughout her life required adoption. This was not a Re P case because the uncertainty was not about (or not only about) whether adopters would be found, it was about whether adoption would turn out to be right for L or whether long term foster placement may be the more appropriate option.
52. I have, of course, given careful consideration to the advantage that the justices had in that they heard the witnesses give evidence. However, they appear to have failed to take account of the manifest uncertainty over what would turn out to be right for L, as did the judge as can be seen from his omission of this element of the psychologist's evidence from his summary. This uncertainty was central to the determination of the placement application. On the facts of this case, in my view it was wrong to have granted the placement order.
53. I acknowledge that there are disadvantages in LA not having a placement order. It will almost inevitably be more difficult for them to encourage people to put themselves forward as prospective adopters for L and we were told that they will not even be able to find out what resources adoption agencies have available. However, the fact that the proper interpretation of the law has inconvenient consequences does not justify adjusting that interpretation. Secondly, granting a placement order in circumstances such as those which prevail in this case would also have undesirable consequences as Mr Cranfield pointed out. When the time comes to determine whether or not adoption is the best plan for L, there may be room for considerable debate but there will be no obvious forum for that. LA would have no obligation and, subject to the possibility of applying for the revocation of the placement order, possibly no power to return the matter to court. The guardian's role would have ended with the making of the placement order. As for the parents, in order to play a part in the decision, they would probably have to seek leave to apply for the revocation of the placement order. To obtain this, they would need to establish a change of circumstances and I am not entirely sure whether they would be able to do so, given that it could be said that uncertainty over the plans for L had existed from the outset.
54. It was for these reasons that I reached the clear view that a placement order should not have been made and that the appeal should therefore be allowed.
55. It follows that the placement order made by the justices and affirmed by Judge Orrell must be discharged. We considered whether the appropriate course would be to remit the case to first instance for the application to be reheard. However, until L has made some progress in therapy, it seemed likely that LA would remain unable to establish their case for a placement order. The better course therefore seemed to be simply to discharge the order and to allow LA to apply again when/if they consider the time is right. I was dismayed to learn that public funding may not be available to the parents to contest such an application. I would view that as wholly unacceptable in proceedings which may lead to the permanent severance of the relationship of parent and child.

Kitchin LJ:

56. I agree.

Rimer LJ:

57. I also agree.