England and Wales High Court (Family Division) Decisions

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URL: http://www.bailii.org/ew/cases/EWHC/Fam/2008/2555.html
Cite as: [2008] Fam Law 1175, [2008] EWHC 2555 (Fam), [2009] 3 WLR 617, [2009] Fam 83, [2009] 1 FLR 299, [2009] PTSR 1102, [2009] 1 FCR 127

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The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.

		Neutral Citation Number: [2008] EWHC 2555 (Fam)
		Case No: WV31/08

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

24/10/2008

B e f o r e :

MRS. JUSTICE ELEANOR KING
____________________

Between:

	Sandwell Metropolitan Borough Council	Applicant
	- and -
	GC - and – HC - and – Mr and Mrs X - and – MMC (By the Children's Guardian)	1st Respondent 2nd Respondent 3rd Respondent 4th Respondent

____________________

Stefano Nuvoloni (instructed by Vanessa Mayer-Smith) for the Applicant
Claire Thompson (instructed by Lonsdales) for the 1st and 2nd Respondents
Maggie Hodgson (instructed by Baches) for the 3rd Respondent
Val Cox (instructed by CMHT) for the 4th Respondent
Hearing dates:
____________________

HTML VERSION OF JUDGMENT
____________________

Mrs. Justice Eleanor King :

This an application by Sandwell MBC for a declaration that on 22 June 2007 lawful consent was given by the mother HC and the father GC to the placement for adoption of their baby girl MMMC who was born on 21 May 2007 and is now 15 months old.

Background

MM is the child of G C (F) and H C (M). F has parental responsibility for M the parents having married on 21^st September 2007, four months after M's birth.

MM is the third child of the relationship. The parents have had long standing involvement with Social Services. An older half- brother, D, (who was cared for by the parents) was made the subject of a care order on 6 May 2005. Two full siblings J and M were made the subject of care orders in May 2006 and Placement Orders in January 2007. Whilst the parents did not consent to the making of the orders in respect of J and M they did not actively oppose those applications.

M & F knew that M was expecting MM by the time of the hearing of the LA placement applications in respect of M and J. The unborn baby was placed on the Child Protection Register in February 2007. Following some understandable vacillation on their part, by April 2007 the parents had taken the distressing and difficult decision to place the expected child for adoption. They believed, (rightly), that the new baby would inevitably be removed from their care by the Local Authority.

MM was born by caesarian section on 21 May 2007 and placed with the LA by the parents upon the mother's discharge from hospital on 24 May. At that stage MM's statutory status was that she was being voluntarily accommodated pursuant to s20 Children Act 1989.

On 20 June 2007 the parents attended what was intended to be a farewell contact visit with MM supervised by Social Services.

On 22 June 2007 when MM was 4 weeks old, a CAFCASS officer KL visited the parents where they signed two forms:

i) a s19 Adoption and Children Act 2002 (ACA 2002) consent to MM being placed for adoption with prospective adopters

(ii) a s20 Adoption and Children Act 2002 consent form consenting to the making of a future adoption order in respect of M M.

On 3 July 2007 the Adoption Panel approved the plan for adoption for MM and on 18 September approved the proposed match with the 3^rd Respondents in this matter Mr. and Mrs. X.

Shortly before MM was due to be placed with Mr. and Mrs. X the father telephoned the LA indicating that he intended to seek legal advice about the possibility of MM being placed in the care of him and the mother. The following day he again rang saying that he was not, after all, going to take any action.

The parents subsequently decided against attending a further proposed contact visit on 2^nd October immediately prior to MM's placement with Mr. and Mrs. X. MM has remained with Mr. and Mrs. X since 2^nd October 2007 where she is settled and happy.

On 7 January 2008 Mr. and Mrs. X made an application in the Warley Family Proceedings Court to adopt MM. The application was issued on 11 April 2008. The Justices' Clerk in reviewing the documentation noted that there was a problem with the parental consents in that the "s20 consent" (consent to the making of an adoption order) had been obtained before MM was 6 weeks old and is therefore pursuant to s 52(3) ACA 2002, ineffective.

The LA invited KL to approach the parents to seek their renewed consent, she did so but they declined indicating that they wished MM to be returned to their care.

Issue to be determined

The issue for the court to determine is whether the "s19 consent" to the placement of MM with a view to adoption given by M and F on 22 June is effective in relation to either or both parents despite the fact that it was given before MM was 6 weeks old.

The Father's Position

Mother and Father were not married at the date of M's birth. They subsequently married on 21^st September 2007. The father therefore has parental responsibility, M's birth having been legitimated as a consequence of the provisions of Legitimacy Act 1976, s2 & FLRA Fl187 s1(2)

If the mother in fact gave effective consent to adoption under s19 ACA 2002, on 22^nd June 2007 and the baby was thereafter properly placed for adoption, then, the father having subsequently acquired parental responsibility for the baby (by virtue of M and Fs subsequent marriage) will, under s52 (8) and (9) ACA 2002 be treated as having given consent under s19 in the same terms and at the same time as the mother. He will in these circumstances be unable to withdraw his consent to the application for adoption made by Mr and Mrs X.

The Mother's Position

The ACA 2002 provides for a scheme whereby the placement of children for adoption and the subsequent making of an adoption order can take place with parental consent. The rules accompanying the Act are contained in Family Procedure (Adoption Rules) 2005. Rule 1 FP(R)A states the overriding objective of the rules as being to enable the court to deal with cases justly.

The jurisdiction for the placement of a child by an adoption agency (most commonly a local authority) is contained in section 18 ACA 2002:

18 Placement for adoption by agencies

(1) An adoption agency may:

(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,

but, except in the case of a child who is less than six weeks old, may only do so under section 19 or a placement order.

An adoption agency may therefore place a child over 6 weeks old with prospective adopters but only if there is consent under section 19 of the Act or where there is a placement order. (section 21) The section clearly envisages the possibility of a different route to placement where the child is under 6 weeks old.

Section 18 ACA 2002 provides the jurisdiction allowing an adoption agency to place a child for adoption. Thereafter Section 19 and section 20 provide a two stage process for a parent who is consenting to his or her child being placed for adoption and who will subsequently be adopted:

Section 19 provides for a parent consenting to a child being placed by an adoption agency with prospective adopters.

S19 Placing children with parental consent

(1) Where an adoption agency is satisfied that each parent or guardian of a child has consented to the child—

(a) being placed for adoption with prospective adopters identified in the, consent, or

(b) being placed for adoption with any prospective adopters who may be chosen by the agency,

and has not withdrawn the consent, the agency is authorised to place the child for adoption accordingly.

(2) Consent to a child being placed for adoption with prospective adopters identified in the consent may be combined with consent to the child subsequently being placed for adoption with any prospective adopters who may be chosen by the agency in circumstances where the child is removed from or returned by the identified prospective adopters.

(3) Subsection (1) does not apply where–

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

(b) a care order or placement order has been made after the consent was given.

(4) References in this Act to a child placed for adoption under this section include a child who was placed under this section with prospective adopters and continues to be placed with them, whether or not consent to the placement has been withdrawn.

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

Certain legal consequences flow from a parent giving consent to the placement of a child for adoption including:

i) Once the prospective adopters have applied for an adoption order the consenting parent cannot withdraw their consent and can only oppose an adoption application with the leave of the court; ACA S47 (an application for adoption can only be made a minimum of ten weeks after the child is placed for adoption);

ii) Contact with the child will be determined by the Adoption Agency of the court ACA, s26;

iii) Parental responsibility is given to the adoption agency and in due course the prospective adopters (section 25(2) and (3)) and the agency may restrict the extent to which the parents may exercise parental responsibility thereafter;

iv) The parent's ability to apply for a residence order is restricted ACA s28(1);

v) There are restrictions on the parent's ability to require the return of the child: ACA ss30-35;

Section 20 ACA 2002 supplements s19 by anticipating the next stage in the process by making provision for a parent whereby at the same time as giving "s19 consent" (or thereafter) he or she may also give his or her consent to the making of a future adoption order:

S20 Advance consent to adoption

(1) A parent or guardian of a child who consents to the child being placed for adoption by an adoption agency under section 19 may, at the same or any subsequent time, consent to the making of a future adoption order.

(2) Consent under this section—

(a) where the parent or guardian has consented to the child being placed for adoption with prospective adopters identified in the consent, may be consent to adoption by them, or

(b) may be consent to adoption by any prospective adopters who may be chosen by the agency.

(3) A person may withdraw any consent given under this section.

(4) A person who gives consent under this section may, at the same or any subsequent time, by notice given to the adoption agency:

(a) state that he does not wish to be informed of any application for an adoption order, or

(b) withdraw such a statement.

(5) A notice under subsection (4) has effect from the time when it is received by the adoption agency but has no effect if the person concerned has withdrawn their consent.

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

In each case the consent given by a parent whether under s19 or s20 is subject to s52 ACA 2002. Section 52 ACA provides as follows:

S52 Parental etc consent

(1) 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 the court is satisfied that—

(a) the parent or guardian cannot be found or is incapable of giving consent, or

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

(2) The following provisions apply to references in this Chapter to any parent or guardian of a child giving or withdrawing—

(a) consent to the placement of a child for adoption, or

(b) consent to the making of an adoption order (including a future adoption order).

(3) Any consent given by the mother to the making of an adoption order is ineffective if it is given less than six weeks after the child's birth.

(4) The withdrawal of any consent to the placement of a child for adoption, or of any consent given under section 20, is ineffective if it is given after an application for an adoption order is made.

At first blush therefore on a textual analysis the legal position seems to be crystal clear: s19 of the 2002 Act provides for placement by consent with no restriction on age. One moves on to look at s52 ACA 2002 for the detailed provision on parental consent in order to see if there are any statutory restrictions within that section. Each and every sub-section of s52 ACA specifically refers to consent to placement and to consent to adoption save for s52(3). The section 52(3) limitation on consent to an adoption order when a child is under 6 weeks of age, refers only to consent to the making of an adoption order and not to consent to placement.

On the face of it this section is capable of only one interpretation: Parliament must be presumed to have intended to restrict the exception in section 52(3) to consent to adoption orders. Given the structure of the rest of the section there would appear to be no grounds for interpreting it as including, by implication, consent to placement orders.

Such an interpretation is in accordance with the European Convention on the Adoption of Children which renders consent given by the mother of an adoption order ineffective if it is given less than 6 weeks after the child's birth but has no mirror restriction on a mother's consent to placement.

The matter is not however so straightforward. Upon scratching the surface of the legislation there are references to babies under 6 weeks old to be found scattered throughout the ACA 2002 and the various accompanying regulations. In addition the CAFCASS "Protocol for Children Relinquished for Adoption" issued in August 2007 has been drawn to the courts attention. Whilst the protocol does not state in absolute terms that consent to placement cannot be given before the child is 6 weeks old there are a number of references which suggest that that is the case.

a) Paragraph 4.23 of the Protocol refers to consent being given before the adoption panel has met in cases where a parent is "anxious to sign section 19 consent as soon as her child reaches 6 weeks of age"

b) Letter 1 Annex 2 "The mother is expected to be competent 6 weeks after birth".

c) Annex 4 (p24) "When your baby is at least 6 weeks old… they will ask you to sign a document consenting to your child's placement"

Given the terms of the Protocol, CAFCASS were given the opportunity to intervene in these proceedings. They declined but indicated in a Position Statement that they would welcome the court's view on the legal position in respect of "section 19 consents" taken from a mother where the child is under 6 weeks old.

I therefore move on to consider in more detail the position of the placement of babies less than 6 weeks old. In particular I consider whether obtaining consent from a mother to the placement of her baby at under 6 weeks old is:

i) ineffective and renders a placement unauthorised or

ii) whether it is an effective placement but a breach of good practice or

iii) whether it is an effective placement but with different characteristics from a "s19 "placement"

Children under 6 weeks of age: Placement and Adoption

The placement of children less than 6 weeks of age is the subject of discrete provision within the Act and the Rules.

i) S52 ACA 2002 provides that a "s20 consent" (consent to an adoption order) is ineffective if given less than 6 weeks after the birth of the child. As noted earlier there is no mirror provision in section 52 in relation to a s19 "consent" (consent to placement) such as to render a consent to placement ineffective when the baby is less than six weeks old.

ii) The s18 (1) ACA 2002 prohibition on the placement for adoption of a child in the absence of "section 19 consent" or a placement order does not apply to a child under six weeks old;

iii) Where a child is to be placed for adoption and is under six weeks old s53 ACA 2002 provides for a raft of Children Act 1989 provisions to apply with or without modifications. Those provisions do not relate to consent.

iv) The actual placement of a child under six weeks of age is provided for within the Adoption Agency Rules 2005 (ARA 2005)

Rule 35 AAE 2005provides

(1)……..

(2)……..

(3) Where the prospective adopter notifies the adoption agency that he wishes to proceed with the placement and the agency is authorised to place the child for adoption or, subject to paragraph (4), the child is less than 6 weeks old, the agency may place the child for adoption with the prospective adopter.

(4) Unless there is a placement order in respect of the child the adoption agency may not place for adoption a child who is less than six weeks old unless the parent or guardian of the child has agreed in writing that the child may be placed for adoption.

The Adoption and Children Act 2002 Statutory Guidance provides at Annex B a specimen 'written agreement' designed to comply with the requirement of r 35ARA 2005 where a child is placed for adoption and is under six weeks old. That specimen agreement says "After the child is six weeks old the Agency will seek normal consent to the child being placed for adoption"

v) Section 31 (1) – (4) ACA 2005 provides that where a mother withdraws her 'Section 19 consent ' or a child has been placed at under 6 weeks the Adoption Agency must return the child to the parent within a period of 7 days unless an application for a placement order has been made.

The placement of a child is only the first part of the process, the second being the making of the actual adoption order. Section 47 ACA 2002 provides that an adoption order may not be made unless one of the three conditions set out in the sub-section has been satisfied.

The third condition relates to children who have been freed for adoption and therefore has no application in this case;

The first condition requires that the parent had consented to the making of an adoption order or that their consent has been dispensed with (s47(2));

The second (and therefore alternative condition to the first condition when considering MM's position) deals at section 47(4)(a) with cases where the child has been placed for adoption. The subsection requires that:

a) The child has been placed for adoption by an adoption agency with the prospective adopters in whose favor the order is proposed to be made,:

b) Either

a) The child was placed for adoption with the consent of each parent or guardian and the consent of the mother was given when the child was at least six weeks old or:

b) The child was placed for adoption under a placement order and

c) No parent or guardian opposes the order

The Act merely refers to "consent" in section 47 (4) and does not refer specifically to "s19 consent" to placement.

MM was not placed under a placement order but was placed by an adoption agency. The Mother's consent was not given when MM was at least 6 weeks old the second condition has therefore not been satisfied.

In those circumstances the court is thrown back on to the first condition and under the terms of s47 ACA 2002 it only has the jurisdiction to make an adoption order if it is satisfied pursuant to section 47(2) ACA 2002 that the parents consent should be dispensed with.

In summary therefore:

• A child under 6 weeks of age is treated as an exception to the general provisions for placement under section 18, 19, and 20:

There can be placement of a child for adoption when the baby is still under 6 weeks of age but only if subject to a written agreement.

There can be no consent to the making of an adoption order when the child is under 6 weeks of age.

Consent to placement when the child is under 6 weeks of age cannot be relied upon as a basis for making an adoption order and the court therefore has to be satisfied that the consent should be dispensed with. Section 47(4)

The Adoption and Children Act 2002 Statutory Guidance says at paragraph 65:

"Where a child is less than six weeks old at the time the agency makes its decision, the agency should follow the steps set out in AAR 19.3. It should not however seek to obtain consent to placement for adoption or to adoption: section 52(3) makes it clear that any consent given by the mother to the making of an adoption order is ineffective if given when the child is under six weeks

In such a case, unless an application has been made for a care order or has not been determined by the court, the agency should seek to ascertain whether the parent or guardian is prepared to agree to the baby being placed for adoption either with prospective adopters identified in the agreement or by any prospective adopters who may be chosen by the agency. If the parent or guardian is prepared to make such an agreement, they should be asked to sign the agreement form set out in Annex B"

It seems clear therefore that good practice, as set out in the Statutory Guidance, anticipates a two stage process whereby a mother agreeing to relinquish her baby who is less than six weeks old initially signs a written consent in the form recommended by the Statutory Guidance. That written consent allows the agency to place the child with prospective adopters. Once the baby is six weeks old the mother is then asked to sign the "s19 consent" in the prescribed form. This will satisfy the requirements of s47 (4)(b)(i) and allow all adoption orders to be made without having to have future litigation save in those exceptional circumstances when a court gives a parent leave to withdraw his or her consent.

Conclusion

1) The placement of MM was not an unauthorised placement. Whether she was placed by way of "s.19 Consent" or by way of 'written agreement' under Regulation 35 ARA 2005, consent was properly given by MM's mother to her placement for adoption. Such consent can be given when the child is less than 6 weeks old.

(2) Regardless of whether the consent was merely a 'written agreement' or whether it was capable of being a full "s.19 consent", that consent to placement cannot be relied on as jurisdiction to make an adoption order under the second condition at s47(4)(b)(i) ACA 2002 as MM was not 6 weeks old when her mother consented.

(3) Both good practice and common sense suggest "s.19 consents" should only be sought after the child is 6 weeks old as consent given (albeit in writing) prior to that time will not satisfy the second condition in s47. Failure to delay in obtaining s.19 consent until after the child is 6 weeks old serves to undermine the objective of "s.19 consent" namely of ensuring speedy, secure, consensual placements of young children outside care proceedings without the uncertainty and delay implicit in an application to dispense with the consent to adoption of either or both parents.

(4) There remains the issue as to whether

(i) consent given by a parent to placement for adoption of baby before baby is 6 weeks of age is capable of being "s19 consent" with all the accompanying restrictions on a parent's involvement in the life of the child which flow from the giving of such consent or

(ii) whether such early consent means the child remains "accommodated" under s20 CA 1989, although placed for adoption.

It is unnecessary for the court to determine this outstanding issue. On the facts of this case all parties are agreed that nothing turns on whether or not the "s19" restrictions would properly have bitten in MM's case or whether she remained an accommodated child.

So far as MM is concerned the important matters are that:

a) MM was placed under a written agreement therefore her placement with Mr. and Mrs X was an authorised placement.

b) She was under 6 weeks of age when the consent was signed so prior to an adoption order being made the court must dispense with the consent of each of her parents on the basis that her welfare requires an adoption order to be made.

I accordingly make declarations in those terms.

Having declared the placement to be an authorised placement it is not therefore necessary for MM's placement to be in anyway modified or regularised for example by making the prospective adopters foster carers, seeking an interim care order or by her case being taken to an adoption panel.

It was agreed between the parties at an earlier hearing that to avoid delay the prospective adopters should forthwith amend their application to one whereby they apply for the consent of the parents to be dispensed with and the matter should be set down for hearing as soon as practicable. That was done.

Postscript

The prospective adopters having amended their application and thte parents having read a first draft of this judgment have, to their credit, withdrawn their opposition to the making of an adoption order although they understandably do not feel able actively to consent to the order. I therefore made unopposed orders dispensing with the consent of each of the parents allowing MM's future to be secured without further delay.