England and Wales Family Court Decisions (other Judges)

IN THE EAST LONDON FAMILY COURT

Case No: ZE/61/17

6th and 7th Floor

11 Westferry Circus

London

E14 4HD

Thursday, 14th September 2017

Before: HER HONOUR JUDGE ATKINSON

B E T W E E N:

LONDON BOROUGH OF TOWER HAMLETS
and H and M

MS V ROBERTS appeared on behalf of the Applicant

The Respondents appeared In Person

JUDGMENT (Approved)

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JUDGE ATKINSON:

1. On 10 November 2016, I made a care and placement order in respect of a baby girl, who I am going to refer to as 'PJ' in this judgment; she was then just 12 weeks old. PJ is the youngest child of a sibling group of eight children. On the same day, I made care orders in respect of five of her older half-siblings having already made care orders some months earlier in respect of the other two half-siblings. There are full judgments in respect of each of these decisions. PJ's parents, as is their right, sought permission to appeal both of those decisions. Permission was refused as being totally without merit by Moylan LJ earlier this year.
2. In late November 2016, the applicants were identified as possible adopters for PJ. On 7 February 2017, they were approved as a match. I see from the Annex A report that PJ was introduced to the applicants on 13 February 2017 and she was placed with them on 20 February 2017. On 13 June 2017, the applicants made their application to adopt PJ. The application was issued by the court on 26 June.
3. In accordance with the adoption procedures at this court, on 27 June standard directions were given by District Judge Backhouse allocating the case to me because of my involvement, directing the Local Authority to file a Rule 14.11 report, and listing the case for a hearing on 22 August for directions. At paragraph six the order contained the usual paragraph, directed towards the parents, that in the event that they wished to oppose the adoption they should make an application and file evidence with the court by a date at the end of July 2017. In fact, the parents did not comply with that direction within the deadline for the filing of their evidence although I am satisfied that they received the order of Judge Backhouse. The first directions hearing was on 22 August and before I deal with that, I need to set out another development in the history.
4. On 26 June 2017, the very same day that the court issued the adoption application, the parents applied to discharge the care orders in respect of six of the eight children, including PJ. In fact, they sought EPOs in respect of some of the children alleging that they were being abused in foster care. However, as there was no evidence filed with that application and none forthcoming despite a written request from a gate keeping legal advisor, there was no emergency application listed.
5. As there were s.91(14) orders in place in relation to all of the children save PJ, I made directions for the filing of evidence in support of their application with a view to determining whether or not to give them the permission that they need to issue the applications in respect of all the children, save PJ. The case was listed for a hearing on 6 September.
6. At the directions hearing on the adoption on 22 August, the parents had failed to file a formal request for permission to oppose. However, I had seen in the papers in the discharge application their suggestion that they had received no notice of the placement of PJ with her prospective adopters. What they said was that they did not know she had been placed into the home of the people intending to adopt her. I need to make it quite clear that this assertion is disputed by the Local Authority, but nevertheless, it caused me some disquiet. When I queried this with Ms Roberts on behalf of the Local Authority, she told me that the parents had had, what we describe as 'farewell' contact prior to the placement in the full knowledge of what was about to take place – that is the placing of PJ with her prospective adopters.
7. I directed the parents to set out their change of circumstances in support of their application for permission to oppose the adoption and also, their understanding of the 'goodbye' contact in February 2017 and the circumstances in which they assert they came to know their child was placed with prospective adopters.
8. What the parents say in their statement between C49 and 50 is this. They say:

'As litigants in person, we should have been liaised with by the legal team from the London Borough of Tower Hamlets, but the only contact we have had was for a contra mandamus (they mean contra mundum) order to prevent us speaking about our children. The first we knew that PJ had been placed was when the application for adoption was received.

We have never been formally informed that PJ had been placed…' I am inserting 'PJ' '…and believed that she was still in foster care. We had a 'goodbye' contact with PJ in February 2017. This was the end of a contact reduction and believed that matching would take some time and that we would be informed a successful match had been found and then given a date that she would then be placed so we could apply for the placement order to be discharged to stop the placement. The Local Authority have throughout done things procedurally wrong by not allowing us LAC meetings to keep us informed of the children's wellbeing.

It was believed that the 'goodbye' contact took place as a result of our Facebook campaign and putting photos on social media and also, as a result of the contact with our older children being stopped: not that PJ was being placed. We were only told that PJ was being matched and our understanding was that matching could not take place while the baby was still having contact with her parents to avoid confusion.

This is the last interaction that we had with the Local Authority with regards to the proposed adoption and placement. This is the reason we applied on 26 June 2017 for the discharge of all orders including PJ's. On 27 June, an application for adoption was accepted by Judge Backhouse'.

9. The Local Authority response to that is that these parents did know that the child had been placed with prospective adopters. Ms P, the social worker, in her statement, filed on behalf of the Local Authority, says that the parents had been informed when PJ was matched formally by the adoption panel in February 2017. She says that on 10 February 2017, she contacted both of the parents writing as follows in an email:

'Dear [mother's name], I passed your email about PJ's LAC review to the Independent Reviewing Officer because there are people who arrange review meetings. My understanding is this has been dealt with and someone from that team will be contacting you. 'Goodbye' contacts take prior to the children being placed with the adopter. An adoption family has been found for PJ and she will be placed with them soon, hence the reason for the 'goodbye' contact taking place. Apologies for giving you the incorrect date in my earlier email. I would like to confirm that contact will be on Wednesday 15 February, 10-12'.

The parents insist that the contact was on the 14^th. Nothing turns on that.

10. I have another statement from a Team Manager in the Permanency and Adoption Support Team. She sets out the National Minimum Standards  at 17.11 which state, 'The child's birth parents and prospective adopters, as appropriate, are informed orally of the decision-maker's decision within two working days and written confirmation is sent to them within five working days'. It is suggested that the email is the equivalent of the oral communication of the decision-maker's decision and the Local Authority maintain that the letter sent out by the ADM complies with the second part.
11. I have seen the letter from the ADM. It does state that PJ has been presented to the Adoption panel on 7^th February and that she will be "placed for adoption with particular approved adopters". One of the problems that the Local Authority has in relation to that letter, is that it is undated.
12. After the decision was made on 7^th it had to be ratified by the ADM. I am told that that was on 10 February, but I have no evidence directly from the person who ratified the decision. I understand that she no longer works for the Local Authority. The letter, I am told, was then sent by first class post, as is the usual practice. The 'goodbye' contact was on 14 or 15 February and as we know, PJ was actually placed on the 20^th – at best, 10 days after notification was sent out and 5 days after final contact had taken place.

The law.

13. I am mindful that the parents are in person. They are highly suspicious of anything that the court does, not trusting the process. During the course of this hearing they have indicated on more than one occasion that they do not recognise the authority of the court and have no intention of engaging with the process. I have been told that I have no rights over them and in fact this court is not my court room but rather theirs. What follows is a simplified explanation of the law in the hope that they are listening and will understand my concerns and be encouraged to take legal advice.
14. When a placement order is made in respect of a child, the care order is suspended which is why I was unable to discharge the care order in respect of PJ upon the application of the parents at the previous application at the previous hearing. I have given reasons for that separately.
15. The placement order empowers the Local Authority to "place" the child for adoption. The parents have the right to apply to revoke the placement order. If they make that application, the Local Authority or adoption agency cannot place the child without permission of the court. However, once the child is "placed" for adoption, the parents lose a very important right; they are no longer able to apply to revoke the placement order. They have no automatic rights then to oppose the adoption. They need permission to oppose the adoption and that is the application made by the parents now as it is all that is left to them.
16. There are two important decisions of the higher courts, as I have already set out, concerning the obligations of Local Authorities to be fair to parents in their processes before they place a child in respect of whom they have a placement order. Transparency and fairness is particularly important in this situation because the act of placing the child ends the parent's right to apply to revoke the placement order. I have handed out copies of those authorities to the Local Authority in advance of this hearing and to the parents during the course of this hearing.
17. Those authorities suggest that in circumstances in which the parents are not properly informed of a placement, then that placement can be unlawful.
18. Having set out that simple explanation I set out the detail of the case law that will assist any lawyer looking at this case. I refer of course, first to the case of Re F [2008] EWCA Civ 439 highlighting the wisdom of Wall LJ at paragraphs 40-46 where he sets out the importance of fairness in this very process. More important however is the more recent authority of EL v Essex County Council [2017] EWHC 1041 (Admin) ("the Essex case").
19. In the Essex case Charles J begins by identifying the principle of fairness underscored by Wall LJ in Re F and set out above. In this case the central issue was whether it was procedurally fair in all the circumstances of the case for the local authority to proceed without making it sufficiently clear to the Claimant that unless she took the steps that it knew, and she did not know, were available to her to try and stop the local authority from taking the next steps in furtherance of an adoption plan then the local authority would be able to proceed without any further involvement of the court.
20. The Judge concluded as follows:

"In my judgment, in the context of the important watershed between when a placement that can and cannot be made by a local authority without the leave of the court the reasoning and conclusion reached in Re F show that good practice or a fair process:

i) is not confined to a deliberate decision not to provide certain factual information,

ii) is not confined to cases in which analogies can be made with the participation of the father in the care proceedings in Re F,

iii) is not confined to the disclosure of facts but extends to a consideration of whether it is fair that a parent was kept in the dark about something by the adoption agency (local authority) and was so prevented or hindered from making an application under s. 24 of the 2002 Act,

iv) is an approach based on the application of the principle of fairness set out earlier in this judgment, and so

v) is authority in this field for an approach that examines what information has been provided and what information should have been provided by an adoption agency (a local authority) on both legal and factual matters to a parent is necessary to the determination of the question whether a parent has been unfairly kept in the dark and so prevented from or hindered in making an application to the court under s. 24 of the 2002 Act (see for example, the rhetorical question posed by Wall LJ at the end of paragraph 96 – What has happened to information sharing, and co-operation?) ."

21. Each case turns on its own facts but in the Essex case, the court decided that before it embarked on the implementation of a placement plan fairness required the local authority to inform the Claimant that unless she issued an application under s. 24 of the 2002 Act for permission to revoke the placement order by a certain date it would proceed with its placement plan by placing the child.

Discussion.

22. The parents in this case made no application to revoke the placement order. They have now lost the right to do so because PJ has been placed.

Judge is interrupted by the mother.

23. The Local Authority and the parents, at my direction, have set out a basic account of how they respectively say this happened. There is a dispute between them. The parents say that they did not know or appreciate fully the impact of what was happening. The Local Authority say, 'We have done enough, it is lawful'.
24. I am concerned that if the parents – and I do not know whether they do – have a legitimate claim that the placement of their child for adoption was unlawful, they should be given the opportunity to take advice and/or pursue that claim. The way in which they would pursue it is they will either seek advice, preferably from a solicitor who specialises in judicial review and the court can provide a list of them. If a lawyer advises them that they have a case, then they would make an application for permission to judicially review the decision to place.
25. If they choose not to go to a lawyer or they cannot get a lawyer to act for them, then they can issue their own application for permission to challenge the lawfulness of the decision of the Local Authority armed, I might add, with this judgment which I am going to make sure they have.
26. If permission is given to seek a judicial review of that decision, then it seems to me I will have to stay (or pause) the adoption application until it has been dealt with. If, on the other hand, the parents choose not to pursue the application, choose not to go to court, choose not to raise it any further with a lawyer or with the High Court, or do not do so in a timely manner, that is entirely a matter for them. Then, on the next occasion, I may be driven by other imperatives such as the welfare of the child and the need to make a decision more swiftly.
27. I should add that Ms Roberts on behalf of the Local Authority opposed my taking this course. She does so on the basis that it is clear, she says, that the parents will get nowhere with this and that the authority has done everything that it needs to do. I have avoided deciding whether this placement is lawful. That is not my role. I have not descended into that arena, nor do I have to, it seems to me. I just have to be satisfied in taking this action, that the parents have an argument which would entitle them to go and see a lawyer or put an application before the High Court.
28. I am satisfied that they do have an argument based specifically on the legal principles that I have set out above. I have no desire to unnecessarily lengthen the process for this child, for that is what my action will mean. However, when presented with information that suggests that there may be an argument that there has been a lack of fairness in the process, I cannot simply ignore that information and press on. Not only would that be a disservice to the parents in this case, it would also be a disservice to the child.
29. However, I cannot let this drift on for too long. Therefore, what I am going to do is give the parents, effectively, 14 days to find themselves a lawyer or issue their application. I will list the case after 2nd October. I am not sure of the date yet. At that hearing if no action has been taken I will proceed to make a decision on the permission to oppose application, or, if some action has been taken and there is an application for permission before the High Court, then I will consider an application to stay the adoption pending the determination of the judicial review.
30. Finally, I should like to add this comment. During the course of this hearing, as I have mentioned above, the parents have tried very hard to indicate that they have no respect for the court or process. For example:

a. They have insisted that they will not answer to their proper names;

b. Father has purported to "serve" me with a "contract" telling me that he has sent it on to my private email address – and that he has addressed it to me in both my work name and my married name;

c. Father has indicated that he has no intention of seeking legal advice "even if we wanted to be part of this system".

I realise that these parents are finding this whole situation stressful and upsetting. I do not hold against them that they hold these views and their behaviour today has been frankly irrelevant to my decision making. However, I do want to make it clear that at the next hearing I will not countenance a situation in which the parents have taken no action and seek more time in an effort to simply frustrate the adoption process. I would remind them that the placement remains lawful until determined otherwise. Any lawyer will advise them that there are strict time limits which apply to applications to review decisions, and rightly so. I have told them what they should do. If they chose not to do it then there may come a point where we need to proceed to make final decisions.

End of Judgment
 
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