England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN THE MATTER OF J (A Girl, born 23.12.07)

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/02/2010

The Hon Mr Justice Coulson:

A. INTRODUCTION

1. By an application dated 11.09.09, the Claimant seeks judicial review of the Defendant's decision to place the Claimant's daughter, J, for adoption. There is a dispute as to the date of the relevant decision. Permission to make the application was refused on paper but, following an oral hearing, Bennett J granted the Claimant permission to apply for judicial review.
2. The issues at the heart of the application can be summarised as follows. A Placement Order was made in connection with J on 15.09.08. During July and August 2009, following the identification of prospective adopters, the Claimant was kept fully informed by the Defendant about each step in the process leading up to the placement of J. Once all of the necessary recommendations and approvals were in place, a series of introductory meetings between J and her prospective adopters started on Monday, 17^th August 2009. Although the original plan had been for J to move in permanently with the prospective adopters on Friday, 21^st August, it was thought to be in the interests of J for that date to be moved to Monday, 24^th August 2009.
3. At 3.11pm on the afternoon of Friday 21^st, the Claimant's new solicitors sent a fax which indicated that they proposed to seek to revoke the Placement Order. The fax was not seen by the Adoption Social Worker in J's case until 25^th August, which was the day after J had taken up permanent residence with the prospective adopters. The Claimant now seeks judicial review of the decision to place J for adoption, which the Claimant says occurred on 24^th August. This is important, because a parent in the position of the Claimant can only seek to revoke a Placement Order if the child in question has not already been 'placed for adoption': see s.24 of the Adoption and Children Act 2002.
4. Thus, the following issues arise between the parties:

a) When was J placed for adoption?

b) Was the decision to allow J to take up residence with the prospective adopters on 24^th August lawful?

c) If the decision was not in some way lawful, should the Court, in the exercise of its discretion, quash that decision?

5. I propose to set out the relevant chronology in Section B below and then identify the relevant statutory provisions and authorities in Section C below. Thereafter, at Section D, I deal with the issues as to placement; at Section E I deal with the lawfulness of the decision taken by the Defendant; and at Section F I consider the issues relevant to discretion. I am extremely grateful to both Counsel for their clear written skeletons and their helpful oral submissions.

B. CHRONOLOGY

6. The Claimant is 29 years of age. She has had a lengthy history of mental instability and drug addiction, although the evidence is that she is now, and as been for over a year, drug-free. As a consequence of her troubled history, not one of her four children currently reside with her. The eldest lives in residential foster care; another lives with his father under a Residence Order; and the youngest is the subject of an Interim Care Order dated 28.10.09, although, in relation to her youngest child, the Claimant is currently undergoing a Viability Parenting Assessment. J is the second youngest of the four, born on 23.12.07. She has been on the Child Protection Register since before she was born.
7. In respect of J, an Interim Care Order was made on 17.01.08. On 23.06.08 the Adoption and Permanency Panel recommended adoption. That recommendation was approved by the Agency on 04.07.08. Care and Placement Orders were made on 15.09.08; the plan was for adoption. Family-finding activities were commenced and continued in late 2008 and the first half of 2009. At no time during this period was there any suggestion by the Claimant that she wished to revoke the Placement Order.
8. On 14.07.09, Ms N, the Adoption Social Worker, informed the Claimant that prospective adopters had been found for J. The Claimant was understandably upset and asked to have a "goodbye" contact meeting with J. The Claimant also indicated her keenness to meet the prospective adopters. On 03.08.09, the Adoption and Permanency Panel approved the match with the prospective adopters. Ms N telephoned the Claimant that afternoon to inform her of the Panel's decision to approve the match. During that call, the Claimant informed Ms N that she had changed her mind and would not attend the "goodbye" contact meeting with J which had been arranged for the following day.
9. On 04.08.09, Ms N spoke to the Claimant again. The Claimant confirmed that she did not want to have a further contact meeting with J but would like to meet the prospective adopters. That meeting was fixed for Monday, 17.08.09. During this conversation, Ms N explained that the introductory meetings between J and the prospective adopters would also commence on 17.08.09 and last all week.
10. There were further telephone conversations between Ms N and the Claimant prior to 17.08.09. Then, on that Monday, the Claimant met the prospective adopter. It was, by all accounts, a very positive meeting. The Claimant told the prospective adopter that she had a feeling that she was a "nice woman" and that J would be well looked after by her. The following day, 18.08.09, Ms N spoke again to the Claimant. The Claimant repeated that it had been a good meeting, although she acknowledged that it was painful to know that J would be moving and that she would not be able to see her again.
11. Monday, 17^th August 2009 was also significant for other reasons. No later than 17^th August, the Agency decision-maker approved the recommendation of the Adoption Panel. In a letter to the Claimant, dated 17^th August 2009 but not sent at that time, the Defendant's Head of Placements said:

"I am writing to inform you that at the meeting of the Adoption and Permanency Panel on 3^rd August 2009 a recommendation was made regarding a suitable adoptive family for [J]. Panel accepted this recommendation, and this has since been ratified by the Assistant Director of Social Care.

This letter is therefore your formal notification that an adoptive home has been found and that [J] is in a process of being placed.

I realise that receiving this information formally in this way may cause you some pain, but I can only stress that, through the work of its officers and with your help and co-operation, Brent Children and Families Department is acting in a manner which it considers to be in [J]'s best interest. If you need any help or have any queries, please do not hesitate to contact Ms N from the adoption team."

12. As already noted, Monday 17^th August saw the start of the introductory meetings (or 'Introductions' as they were called by the Defendant) between J and her prospective adopters. These Introductions lasted most of Monday 17^th, and were repeated each day for the rest of that week. They were the vital first step in building a long term relationship between J and the prospective adopters, and they were designed to ensure that, when J took up permanent residence with them, the transition would be as painless for her as possible. As noted above, it was originally the intention for J to take up permanent residence on Friday, 21^st August, but, in order to ensure that the adopters were fully familiar with J's routines, and the maximum benefit could be derived from the Introductions before J took up permanent residence, the decision was made that the move itself would be delayed from the Friday to the following Monday, 24^th August 2009.
13. It appears that, although she made no mention of it in her conversation with Ms N on 18.08.09, the Claimant went that same day to visit her current solicitors for the first time. It does not appear that anything came of that visit. However, they required sight of some further documentation and the Claimant did not take them those documents until Friday 21^st August. Following that second meeting, the Claimant's solicitors rang the Defendant and asked for the name of the Social Services lawyer dealing with J's case. They were given the name of Ms B but were expressly told that she was not in the office that afternoon.
14. Despite that, the Claimant's solicitors sent a fax to the Defendant, at 3.11pm on Friday 21^st August. The fax was not marked urgent and was marked for the attention of Ms B, whom they knew would not be back in the office until Monday 24^th August. The fax was in these terms:

"We refer to our telephone conversation of today when we informed you that we have been instructed by Ms W to apply for leave to revoke the Placement Order. We understand that the child has not yet been placed for adoption. Could you please confirm the present stage? The basis of the application is change of circumstances which we will of course elaborate fully. We are in the process of readying up all the previous papers which are quiet [sic] substantial."

15. It is unclear what happened to the fax on the afternoon of 21^st August, and it may be that it was mislaid. What is plain is that Ms B did not become aware of the contents of the fax until the afternoon of Monday 24^th August, and Ms N did not become aware of the fax until Tuesday 25^th August 2009.
16. The first face-to-face meeting between the Claimant and Ms N that the latter had been able to arrange following these events took place on 3^rd September 2009. In accordance with the Defendant's policy, to the effect that letters of the kind set out in paragraph 11 above should be hand-delivered, preferably by the allocated Social Worker, the letter of 17^th August 2009 was handed to the Claimant at the meeting on 3^rd September.

C. THE LAW

C.1 Revoking Placement Orders

17. Section 24 of the Adoption and Children Act 2002 ("the 2002 Act") provides that:

" (1) The Court may revoke a Placement Order on the application of any person.

(2) But an application may not be made by a person other than the child or the local authority authorised by the Order to place the child for adoption unless –

(a) the Court has given leave to apply and

(b) the child is not placed for adoption by the authority,

(3) The Court cannot give leave under subsection (2)(a) unless it is satisfied that there has been a change in circumstances since the Order was made.

(4) If the Court determines, on an application for an Adoption Order not to make the Order, it may revoke any Placement Order in respect of the child.

(5) Where –

(a) an application for the revocation of a Placement Order has been made and has not been disposed of, and

(b) the child is not placed for adoption by the authority,

the child may not without the Court's leave be placed for adoption under the Order".

18. In essence, an application to revoke a Placement Order cannot be made once the child has been "placed for adoption by the authority". That gives rise to the first issue in the present case: when in this case was J 'placed for adoption' by the authority? The leading case dealing with the circumstances in which revocation may be ordered is M v Warwickshire County Council [2007] EWCA Civ 1084, where paragraph 31 of the judgment of Wilson LJ sets out the necessary steps in the exercise of the Court's discretion on such an application.

C.2 When Is A Child 'Placed For Adoption'?

19. The expression "placed for adoption" used in section 24 of the 2002 Act is not defined there. Similarly, I was not able to find any assistance on the meaning of the phrase in the President's Guidance [2006] 1 FLR 1234. The Adoption Agencies Regulations 2005 ("the 2005 Regulations") are also of limited assistance. However, I note that Regulation 35(5) provides:

"Where the child already has his home with the prospective adopter, the adoption agency must notify the prospective adopter in writing of the date on which the child is placed for adoption with him by that agency."

That suggests that, at least in those circumstances, the date that the child is placed for adoption is referable to a formal written notification, as opposed to any physical change in the child's place of residence.

20. On the other hand, Schedule 5 to the 2005 Regulations deals with the adoption placement plan. Paragraph 3 refers to the "date on which it is proposed to place the child for adoption with the prospective adopter". That may suggest a physical change of circumstances, as opposed to merely a formal or legal ratification.
21. The authority most in point appears to be the decision of the Court of Appeal in Re S [2008] EWCA Civ 1333. The facts are not relevant to this case, but there was some consideration of what was required in the process of statutory placement. The judgment of Thorpe LJ contained the following passages:

'8. As my Lord, Mr Justice Hedley, 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 the 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 Sections 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 Section 24 until all three stages have been accomplished.'

Ms Davies contends that this suggests that a child is 'placed for adoption' at the end of the third stage identified by Thorpe LJ, which is the date that the Matching Panel concludes that the child is matched and to be placed with the prospective adopters.

C.3 Timing

22. It follows from s.24(2) of the 2002 Act that a person in the position of the Claimant cannot seek to revoke a Placement Order if the child has been placed for adoption by the time that the application is made. Thus the question of timing of any application to revoke is of some significance. The leading case on timing is the decision of the Court of Appeal in Re F [2008] EWCA Civ 439. In that case, solicitors acting for the child's father issued an application for leave to revoke a Placement Order, and informed the council of the application by fax, asking for their confirmation that placement had not yet occurred. It appears that the council were aware of the fax and the court application but, some 12 days later, and without any further reference to the father or his solicitors, purported to place the child for adoption, and then sought to rely on s.24(2) as a complete answer to the claim for revocation. Wall LJ concluded that the council's conduct had been disgraceful and that their conduct amounted to "an abuse of power and [was] wholly unacceptable".
23. In paragraphs 74 and 75 of his judgment, he said this:

'74. Time is of the essence for children in the position of the child in this case. Section 1(2) of the 1989 Act, as is well known, enunciates the general principle that any delay determining the question of a child's upbringing is likely to prejudice the child's welfare. There is an equivalent provision in section 1(3) of the 2002 Act. It follows that those charged with implementing the decisions which have already been taken in relation to the child's welfare are entitled to act without delay in implementing the plan for the child – in this case adoption – which has been approved by the court.

75. None of this is to excuse the conduct of the agency in this particular case. What it demonstrates, however, in my judgment, is that in section 24 of the 2002 Act, Parliament has struck a proper balance between the rights and duties of the respective parties which include the agency, the prospective adopters, the child's parents and the child herself. It is plainly undesirable on the one hand that well-thought out and appropriate plans for a child should be delayed by last minute, unmeritorious applications to revoke placement orders made by parents determined to frustrate the process. It is, however, equally undesirable, in cases where there has been a change in circumstances, for a plan for stranger adoption to be implemented willy-nilly when that plan may, genuinely, no longer serve the best interests of the child.'

24. Wall LJ also identified, later in his judgment, the kind of fax that needed to be sent in an urgent case of this sort, which was similar to the one which had actually been sent by the father's solicitors, but which also included an invitation to the council to provide an undertaking that no steps to place the child would be taken before the hearing of the application to revoke and that, if no such undertaking was given, an ex parte application would be made to the County Court for an injunction.
25. In addition, he dealt with the role of the Administrative Court in situations such as this. He said at paragraph 94:

'The first, and obvious point is that 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 section 24(2) in the county court, and restrain the agency, by injunction, from placing the child for adoption pending the determination of that application.'

D. WHEN WAS J PLACED FOR ADOPTION?

26. Having considered the various authorities noted above, I have reached the following conclusions. First, I do not accept Ms Davies' primary submission that a child is automatically placed for adoption once the Matching Panel has reached their decision. For one thing, the process requires the Panel decision to be approved by the Agency decision-maker, and accordingly, until that approval occurs, it cannot be said that the child has been placed for adoption. Neither do I think that this conclusion is contrary to Thorpe LJ's judgment in Re S: it seems to me that in that case, which was concerned with a different point, he was merely setting out in summary form the three general stages involved in placement.
27. On the other hand, I do not consider that Mr Cleaver is right to say that a placement cannot have occurred until the child in question has moved in permanently with the prospective adopters. That would create great uncertainty, and make the moment of placement for adoption an unknown quantity, capable of all kinds of last-minute and unforeseen delays. It might even give rise to a race between the child on her way to the adopters' home and the issuing of the parent's application to revoke. In addition, it would create practical difficulties where the child is already resident with the prospective adopters.
28. It may be that, where there is an issue as to whether or not a child has been placed for adoption by a particular date, each case will turn on its own facts. But in the present case, I have no doubt that J was placed for adoption (within the meaning of s.24(2)) on 17^th August 2009. My reasons for that conclusion are as follows:

(a) The 17^th August was the latest date on which all of the necessary decision-making bodies had confirmed the placement: that was the latest date on which the Agency decision-maker approved the Panel's recommendation. The 17^th was therefore the date when, as a matter of law, the placement for adoption became fixed and certain.

(b) Importantly, however, the 17th was also the date on which the Introductions began. It seems to me that the process of Introductions was a very important element of the relationship between J and her prospective adopters. It was the beginning of that relationship: a process occurring after the placement had become a legal certainty and, in order best to safeguard her interests, before she took up permanent residence.

In my judgment, 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.

29. Accordingly, it seems to me that J was placed for adoption by the Defendant on 17^th August when all the relevant legal formalities had been concluded and the Introductions process began.
30. In those circumstances, it follows that the Claimant's solicitors' fax of 21^st August was too late, because it was written and sent some days after J had been placed for adoption. It follows that there can be no question as to the lawfulness or otherwise of the Defendant's decision to allow J to take up permanent residence on 24^th August. This application for Judicial Review must therefore fail. Although that makes it unnecessary for me to consider the other issues, in view of the detailed argument on those other issues provided by Counsel, and for completeness, I go on to do so.

E. WAS THE DECISION OF 24^th AUGUST LAWFUL?

31. Now let us suppose that I am wrong in my conclusion as to when J was placed for adoption, and that she was not placed until the morning of 24^th August. Was the decision to place her for adoption on the morning of 24.08.09 an error of law that vitiated the Defendant's decision? It seems to me that Ms Davies is right to say that the Court must approach that on normal public law grounds: in other words, did the Defendant abuse its power or act irrationally in making that decision?

(a) Abuse of Power

32. I have no doubt at all that the Defendant did not abuse its power. It seems to me that this case is the complete opposite of Re F. There, the council went ahead with the placement in full knowledge of and in complete disregard for an extant application to revoke the Placement Order. Compare that with the present case, where those involved in the decision-making process had communicated with the Claimant throughout; had no idea (because she had not told them) that she was even thinking about revocation; and were simply unaware of the fax of 21^st August at the time that J took up permanent residence on the morning of 24^th August 2009.

(b) Irrational/Perverse

33. Accordingly, in this case, in order to obtain judicial review and the quashing of the decision, the Claimant needs to demonstrate that the decision was irrational or perverse. The argument put forward by Mr Cleaver is to the effect that the failure to deal with the fax of 21.08.09 that same afternoon was, as he put it, "a travesty of good practice" and that, if the right procedures had been adopted, the fax would have led to the freezing of the position before J took up permanent residence on 24^th August. For the reasons set out below, I do not accept those submissions.
34. First, I do not believe that it is fair to castigate the Defendant in such extreme terms. It certainly does appear that the fax was mislaid. Furthermore, it seems that, in this instance, the Defendant failed to follow their own internal procedure which provided that, if the recipient of the fax was absent, the fax would be referred to another lawyer in the team. But if another lawyer had seen it, it is quite unclear what he or she could sensibly have done with it, in the remaining minutes of that Friday afternoon, and in the absence of Ms B.
35. More importantly, I consider that the Claimant's solicitors were directly responsible for creating the circumstances in which the fax was not given the immediate attention that they now say it should have had. In particular:

(a) Contrary to the guidance in Re F, they did not mark the fax as urgent.

(b) Contrary to the guidance in Re F, they did not seek an undertaking not to place, nor did they suggest that an injunction would be sought if an undertaking was not provided.

(c) Inexplicably, although they knew that Ms B was not going to be back in the office until the Monday, they addressed the fax for her attention.

(c) Also inexplicably, they failed to chase a response to the fax before the end of the day and, again contrary to the guidance in Re F, they did not seek an injunction.

36. In those circumstances, it seems to me that the Defendant cannot now fairly be criticised because it failed to respond immediately to a fax, which was knowingly sent to somebody who was out of the office, at 3.11pm on a Friday afternoon. In my judgment there was no error of law which vitiated the decision, if that is what it was, to allow J to take up permanent residence with her prospective adopters on the morning of Monday 24^th August 2009. Any shortcomings in the way in which the fax was dealt with were not significant and were, for the reasons that I have given, the direct responsibility of the Claimant's solicitors.
37. Finally on this topic, I should address here the separate argument that, because the letter of 17^th August was not given to the Claimant until 3^rd September, the Defendant was in breach of Regulation 33 of the 2005 Regulations, in that it did not notify the Claimant in writing of the proposed placement "as soon as possible after making its decision". I do not accept that. In my judgment, 'as soon as possible' must mean 'as soon as possible in all the circumstances'. If anything else were the case, the Regulations would specify a particular time limit which could not be exceeded. They do not, because they envisage that different time periods will be appropriate in different cases.
38. In the present case, the Defendant's policy is, if possible, for a letter of the kind set out in paragraph 11 to be given by hand to the parent by the Adoption Social Worker. It seems to me that that is an entirely appropriate policy. Such a letter is an extremely sensitive document which requires very careful handling. I cannot say on the evidence before me that the fact that Ms N was not available to hand over the letter to the Claimant until 3^rd September meant that it was not provided as soon as possible in all the circumstances.
39. I should add this. The letter did not contain anything of significance of which the Claimant was not already aware. Instead, it confirmed everything that she had been told in the first half of August by Ms N. Thus I do not accept that, even if the letter should have been provided before 3^rd September, this alleged error made any difference to the lawfulness or otherwise of the decision. I also reject the submission that the Claimant's solicitors might have acted differently on 21^st August if they had seen a copy of the letter. I accept that, as lawyers, they would have understood from a sight of the letter (in a way that the Claimant might not) that the Panel's decision had since been ratified, but that would not have made any difference to the content of their fax of 21^st August, because that indicated that they intended to apply for leave to revoke the Placement Order in any event. Further, the fax was sent on the basis of the information provided to the solicitors by the Claimant, who well knew from her detailed involvement that the placement process was (at the very least) almost complete. I am entirely confident that the solicitors' various failings, referred to above, were not the result of their not having seen the letter of 17^th August.
40. Accordingly, for all these reasons, I am in no doubt that there was no error of law on the part of the Defendant. There was no abuse of power; on the contrary, careful consideration and sensitivity was displayed to the Claimant at all times. The decision to allow J to take up permanent residence on 24^th August, if that is what it was, was neither irrational nor perverse. It was in the interests of J. The claim for judicial review must therefore fail at this stage too.

E. DISCRETION

41. Now let us assume that I am wrong and that there was an error of law on the part of the Defendant on 21^st or 24^th August, because they failed to deal properly with the fax of 21^st August on that day or first thing on the Monday. In those circumstances, the Court has a discretion as to whether or not to quash the decision of 24^th August. For the reasons noted below, I am in no doubt that, in the proper exercise of the Court's discretion, that decision should not be quashed.
42. Any error of law has to be looked at against the factual background. In this case, it seems to me that the Defendant generally, and Ms N in particular, went out of their way to keep open proper lines of communication with the Claimant. I believe that Ms N deserves the highest praise for her handling of the Claimant during this difficult process. She kept the Claimant informed every step of the way. In addition, the Defendant had an overarching duty to ensure that, at all times, the welfare of J was and remained of paramount importance. There is nothing to suggest that the Defendant has ever acted with any other consideration in mind.
43. On the other side of the coin, I am bound to note the Claimant's failure to indicate during this whole process that she was even contemplating seeking to revoke the placement order. Further, there is her solicitors' fax of 21^st August, with its important deficiencies referred to above. On any view that inadequate fax was sent at the 59^th minute of the 11^th hour. When set against the background noted above, even if there was an error in how the Defendant dealt with the fax, I would not exercise my discretion in favour of allowing that to upset or delay J's placement process.
44. One way of testing the proper exercise of the court's discretion is to ask: what if Ms N had been aware, either very late on Friday 21^st August, or first thing on Monday 24^th, that the Claimant was thinking of trying to revoke the Placement Order? According to her statement, Ms N would then have conferred with the legal team. As she points out in her statement, when proper notice is given, the placement process will usually be put on hold, at least temporarily.
45. But on the evidence before me, I am in no doubt that, even if she had known about the fax, and had taken legal advice, the decision would still have been taken to allow J to move as planned. In stark contrast to Re F, the placement process here was, on any view, essentially complete. The Claimant had been involved throughout and had not complained. It was obviously in J's interests, after a week of Introductions, for her to move in with the prospective adopters as quickly as possible. The disruption and upset caused by even a short suspension of this process, and at such a late stage, would have been considerable. This was just the sort of case that Wall LJ had in mind in Re F, in which a well-thought out and appropriate plan for a child should not be delayed by a last-minute and unparticularised application to revoke; and where any delay was going to prejudice J's welfare. In these particular circumstances, it seems to me clear that, even if it had known about the fax, the Defendant would still have allowed J to take up residence with the prospective adopters on the morning of 24^th August 2009.
46. Finally on the issue of discretion, it must be recognised that the Claimant has an alternative remedy, even if this application fails and the placement remains in effect. Pursuant to section 47(7) of the 2002 Act, the Claimant can, if and when an Adoption Order is sought, seek to challenge that order on the basis of a change of circumstances. Thus, the material on which the Claimant would have wished to rely in seeking to revoke the Placement Order will be relevant, should she wish to oppose the application for an Adoption Order. Whilst I acknowledge that, in view of the passage of time, such a remedy may not be easy to obtain, this is not a case where the Claimant is shut out entirely in the future. That is a further reason why I would exercise my discretion in favour of the Defendant.
47. For all these reasons, therefore, I dismiss this application for Judicial Review.