England and Wales Family Court Decisions (other Judges)

IN THE FAMILY COURT

		Blackburn Family Court Hearing Centre Victoria Street, Blackburn
		22/07/2015

His Honour Judge Booth:

1. This judgment is concerned with the consequences of a new born baby "B" being removed from his parent's care and placed by a local authority with foster carers who were additionally approved by the local authority as adopters and to track the legal status of the child as decisions were made about his future.
2. Although subject to judicial oversight much of the adoption process is dealt with administratively by court staff who may be helped by knowing when a case raises a problem so that it can be brought to the attention of a judge expeditiously. The child's parents may have a limited time in which to make any application to the court, such as for leave to apply to revoke the placement order, and so need clarity as to when that opportunity may cease to be available.
3. The issue directly for determination is whether the application to adopt made by Mr and Mrs X was made at a time that met the statutory scheme and so could proceed. I have determined that it was and the adoption process for B will take its' proper course.
4. I am grateful to Lancashire County Council for the assistance they have given as the local authority involved and to Miss Purplus who lodged an initial skeleton argument and to Mr Buchan who provided me with oral submissions and further written submissions.

The background

5. B's full sibling, A, was made the subject of care and placement orders on 31st March 2014. Mr and Mrs X, were provisionally matched to A and his unborn sibling at a concurrent planning matching meeting which was held on 22nd July 2014.
6. A was placed with Mr and Mrs X on 22nd August 2014 and an adoption order made in respect of him on 19th December 2014.
7. B was born on 1st December 2014 and was placed in the care of Mr and Mrs X, who were dually approved as foster carers and prospective adopters, on 2nd December 2014.
8. B was made the subject of care and placement orders on 31st March 2015.
9. Mr and Mrs X were re-approved as adopters on 6th May 2015 and were linked as B's prospective adopters at an Adoption Panel on 13th May 2015 which received an Agency Decision Maker decision on 22nd May 2015.
10. Mr and Mrs X applied for an adoption order on 29th May 2015.

Contingent Placements

11. Section 22C (9B)(c) of the Children Act 1989 provides that in circumstances where the local authority is considering adoption and it is not possible to place the child with a connected person, it "must consider placing C with a local authority foster parent who has been approved as a prospective adopter".
12. The Department for Education statutory guidance for "Early Permanence Placements and Approval of the Prospective Adopters as Foster Carers" from July 2014 confirms the status of placements made following consideration of Section 22C(9B)(c) at page six, paragraph three:

"[The 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".

13. The same guidance emphasises at page six, paragraph five that although an adoptive placement is anticipated:

"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 arrangements. But, for the vast majority of children who are in a section 22C(9B)(c) placement, progression towards adoption will be the anticipated outcome".

14. B was placed with the Applicants on 1^st December 2014, who were approved as foster carers and prospective adopters on 2^nd December 2014. Applying the statute and the statutory guidance, this was a foster placement.

The impact of Care and Placement Orders on the foster placement

15. B was made the subject of care and placement orders on 31^st March 2015.
16. Section 21(1) of Adoption and Children Act 2002 provides that:

"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".

17. The 2002 Act contains no provision for the court to apply conditions to a placement order such as specifying where the child should live. The "matching" process is undertaken entirely by the local authority acting upon the advice and recommendation of its adoption panel established under the Adoption Agencies Regulations 2005. The matching process is regulated in particular by regulations 21–30 of the Regulations.
18. Irrespective of the approval of the local authority care plan by the court and despite B continuing to live with the applicants, he remained in a foster placement pending the completion of the "matching" process.

When was B placed for adoption?

19. Section 18(1) of the 2002 Act enables an adoption agency to:

(a)  place a child for adoption with prospective adopters, or

(b)  where it has placed a child with any persons (whether under this Part or not), leave the child with them as prospective adopters.

20. Section18(2) of the Act states that:

An adoption agency may only place a child for adoption with prospective adopters if the agency is satisfied that the child ought to be placed for adoption.

21. The Act does not define the placement of a child for adoption. Section 18(5) states:

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;

and references in this Act (apart from this section) to a child who is placed for adoption by an adoption agency are to be interpreted accordingly.

22. In Re S (Placement Order: Revocation) [2009] 1 FLR 503 the Court of Appeal was concerned with a child who had been placed with therapeutic foster carers on 14^th July 2007 who were actively considering whether to apply to adopt him. On 11^th October 2007 the mother applied to revoke the placement order. Thorpe LJ held at paragraph [8] 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.

"[8] The reality is that L, on and after 14 July 2007, was placed with the carer under the fostering regulations and not under the placement regulations, the adoption regulations. In those circumstances, the local authority had sole parental responsibility for L. Had he been placed under the placement regulations, then parental responsibility would have been shared between the local authority and the carer. As my Lord, Hedley J, has analysed in argument, there are three necessary stages to the statutory placement of a child. The first question that has to be asked by the panel is whether adoption is in the best interests of the child. If the answer to that is in the affirmative, then there is an obligation on the local authority to apply for a placement order. Once the placement order has been granted, it is the responsibility of the panel to consider whether specific individuals – say, Mr and Mrs X – are in principle approved as adopters. If that question is answered in the affirmative, then the third stage for the panel's consideration is whether the child in question is matched to Mr and Mrs X, and therefore to be placed with them.

[9] As my Lord has observed, the construction of ss 24 and 18 must be considered within that framework, and I fully share his view that a child is not deemed to be placed for the purposes of s 24 until all three stages have been accomplished. Here the only stage accomplished was the first; the current carers had not been approved in principle, nor had L been matched to be placed with them. As the judge himself saw, at the highest the current foster carer had no more than the potential to emerge at a later stage as a prospective adopter with whom L had not been placed, but whose placement might, under s 18(5)(b), be enlarged from foster to adoptive placement."

23. In Coventry City Council v O (Adoption) [2011] 2 FLR 936 the Court of Appeal was concerned with two questions, the second of which was whether a child was "placed" for adoption when the child moved from foster carers to actually live with the adopters, or whether the placement occurred earlier when the local authority ratified the match and the child first met the adopters. Lord Wilson of Culworth held at paragraph [44]:

"… that a child is not 'placed' for adoption until he begins to live with the proposed adopters or, if he is already living with them in their capacity as foster carers, when the adoption agency formally allows him to continue to live with them in their fresh capacity as prospective adopters. In my view such is the natural construction of the verb 'place', which the Shorter Oxford English Dictionary defines as 'put or set in a particular place, position or situation'. It is thus a construction which, in the usual case in which the child is not already living with the proposed adopters, requires straightforward reference to a readily discernible fact, namely whether he has begun to live with them".

24. The July 2014 statutory guidance for Early Permanence emphasises that the status of Section 22C(9B(c) placements changes when the court has made a placement order and the ADM has approved the adoptive placement:

"Section 22C(9B)(c) placements are foster placements: the carers must be approved foster carers as well as approved prospective adopters before the child can be placed with them. The carers are entitled to the fostering allowances that the fostering provider would normally pay. When the local authority receives a placement order or parental consent and the ADM has approved the adoptive placement, the section 22C(9B)(c) placement will become an adoptive placement. At that point the carers will become eligible for adoption pay and leave and the fostering allowance ceases".

25. The local authority acting in its role as an adoption agency re-approved Mr and Mrs X as Lancashire County Council adopters on 6^th May 2015 and they were linked as B's prospective adopters at an Adoption Panel on 13^th May 2015. The ADM approved the decision of the panel on 22^nd May 2015. It was on this date, when the third and final stage identified by Thorpe LJ in Re S was accomplished and therefore B was placed for adoption. To employ Lord Wilson's language in Coventry v O, 22^nd May 2015 was the date when the adoption agency formally allowed B "to continue to live with the applicants in their fresh capacity as prospective adopters".
26. From the time the placement order was made on 31st March 2015 until B was placed for adoption with Mr and Mrs X there was an opportunity for his parents or anybody else to apply for leave to seek revocation of the placement order. That opportunity ended when B was placed for adoption by the decision of the ADM on 22nd May 2015. Such is the effect of section 24 (5)(b) of the Adoption and Children Act 2002. The closure of that opportunity is by operation of law rather than any physical movement of the child.

The adoption application

27. The Adoption and Children Act 2002 sets out a number of adoption gateway requirements in s42 before an adoption order can be made. The relevant section for the purposes of Mr and Mrs X's application is s.42(2) which states:

"If —

(a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or

(b) the applicant is a parent of the child

the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application."

28. B was 'placed' for the purposes of adoption on 22nd May 2015. The wording of the statute appears to deliberately avoid the terminology of a child being 'placed' when referring to the period of time that a child is required to live with the applicants prior to an application for an adoption order. Instead, the statute requires that the child "must have had his home" with the applicant(s) for 10 weeks preceding the application.
29. There is no definition of 'home' in the Children Act 1989 or the Adoption and Children Act 2002, however it is clear from the observations of Sheldon J in Re Y (Minors) (Adoption: Jurisdiction) [1985] Fam 136, [1986] 1 FLR 152 at 140 and 157 that it has been considered to be a concept incapable of precise definition and that definition should not be attempted beyond the principal features a home should be expected to embody which, by reference to the OED definition, includes a "dwelling-place, house, abode; fixed residence of a family or household". The Court in that case considered that the issue of whether something amounted to a home "must be a question of fact in any particular case".
30. This was endorsed more recently in the case of ECC v M and Others [2008] EWHC 332 (Fam) where Black J said at para [67]

"I am entirely in agreement with Sheldon J that it is a question of fact in any particular case whether or not a home has been established here within the meaning of the 2002 Act".

31. My conclusion is that the time spent by B with the Mr and Mrs X amounts to him having had his home with them for the duration of the period he has lived with them. He has resided there continuously since 2nd December 2014 and they undertake all of his caring tasks. I am told that they have attached to him as their potential adoptive son and he has been treated as such within the immediate and wider family and that B identifies them as his primary attachment figures. They have acted as his parents since he was a day old and he has had his home with them since that date.
32. There is no restriction in either statute or case law to the effect that the child cannot have their home with the Applicant prior to a placement order or, indeed, prior to his being 'placed' with the applicants for the purposes of adoption. For these purposes the clock began ticking in that respect from the moment B was physically placed with them on 2nd December 2014.
33. This interpretation is consistent with the spirit of the Act and what it was intended to achieve in relation to adoptive placements prior to adoption orders being applied for. The purpose of the requirements set out in s.42 has been the subject of judicial consideration in Re A (Adoption: Removal) [2009] EWCA Civ 41, [2009] 2 FLR 597 when Moore-Bick LJ said at para 106:

"The section … is concerned to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the Court to be satisfied they are sufficiently well-matched for the adoption to be likely to be successful".

34. This was endorsed by Theis J in Re X (Adoption Application: Gateway Requirements) [2014] 1 FLR 1281 at para [33].
35. The question of where a child has had his home is a question of fact independent from his legal status within that home.

Conclusion

36. The adoption application made by Mr and Mrs X was properly made. The court will in early course give directions and the case will be fully considered on its merits and an order made determined by B's best interests.