A City Council v DC and Others
| Jurisdiction | England & Wales |
| Judgment Date | 2013 |
| Year | 2013 |
| Date | 2013 |
| Court | Family Division |
Adoption – Practice – Freeing child for adoption – ‘Statutory orphan’ – Application by local authority for revocation of freeing order where child was unsuccessfully placed for adoption – Local authority having parental responsibility for child – Guidance on future management of applications made by local authorities to revoke freeing orders.
The child, J, was placed in an adoptive family but the placement broke down and he moved to foster care where he remained for five years. The care plan was changed to one of long-term fostering. J was one of a significant number of children referred to as ‘statutory orphans’, to reflect the fact that no identifiable person, other than the local authority as adoption agency, had parental responsibility for such a child. J’s mother had chosen to play no part in the proceedings, and his father, despite initially requesting contact, had not responded to attempts by the local authority to contact him. The court was asked to give guidance as to the appropriate procedure for applications to revoke freeing orders in circumstances where the child had not been successfully placed for adoption. Consideration was given to the position of those parents who had made a declaration under s 18(6) of the Adoption Act 1976 that they preferred not to be involved in future questions concerning the adoption of the child at the time of the freeing order.
Held – The general rule was that any application by a local authority asking the court to exercise its inherent jurisdiction in order to revoke a freeing order should be made in the High Court on notice to the former parents including those former parents who had made a declaration under s 18(6) of the 1976 Act. Exceptionally an application might be made without notice. When making such an application the local authority had to file a statement in support giving reasons for seeking a without notice order by reference, inter alia, to the established principles in relation to without notice applications. Similarly any application to withhold any of the information which would otherwise be included within the application had to be made subject to the principles set out in Re A (a child) (disclosure)[2013] 1 FCR 69 and be accompanied by a statement in support of the application. Good practice required that, if they could be traced, the former parents should be told of the forthcoming application face to face by a social worker and be given some sort of explanatory note to help them to understand the nature of the application. The application was to be listed for directions before a
High Court judge or a circuit judge sitting as a High Court judge pursuant to s 9 of the Senior Courts Act 1981. At the first directions hearing the court would decide the preliminary issue as to whether it was in the child’s best interests to revoke the freeing order based on the information contained in the statement and supporting documents. It was envisaged that by the very nature of the application in most cases, it would be appropriate to revoke the freeing order at that hearing. If for any reason the freeing order was not revoked at that stage it should be re-listed for determination as soon as practicable The making of the order revoking the freeing order would: (i) revive the original care order; (ii) revive the appointment of the testamentary guardian; (iii) give parental responsibility to the mother; and (iv) where appropriate, in accordance with the relevant statutory provisions, give parental responsibility to the father. In relation to J in the instant case, directions had been agreed between the parties in accordance with the guidance at [42], below, and the matter would be listed for further directions (see [42]–[43], below); KY v DD (injunctions)[2011] EWHC 1277 (Fam) applied and Re A (a child) (disclosure)[2013] 1 FCR 69 considered.
Cases referred to in judgmentA (a child) (disclosure), Re[2012] UKSC 60, [2013] 1 FCR 69, [2012] 3 WLR 1484.
A (children) (failed freeing order), Re[2012] EWHC 1689 (Fam), [2012] All ER (D) 173 (Jun).
B BC v S[2006] EWHC 2584 (Fam), [2007] 1 FCR 574, [2007] 1 FLR 1600.
J (adoption: revocation of freeing order), Re[2000] 2 FCR 133.
KY v DD (injunctions)[2011] EWHC 1277 (Fam), [2012] 2 FLR 200.
S (a child) (ex parte orders), Re[2000] 3 FCR 706, [2001] 1 All ER 362, [2001] 1 WLR 211, [2001] 1 FLR 308.
SC (a minor) (adoption: freeing order), Re[1999] 1 FCR 145, sub nom Re C (adoption: freeing order) [1999] Fam 240, [1999] 2 WLR 1079, [1999] 1 FLR 348.
W v H (ex parte injunctions)[2000] 3 FCR 481, [2001] 1 All ER 300, sub nom Re W (ex parte orders) [2000] 2 FLR 927.
ApplicationA City Council applied for the revocation of an order made on 2 March 2006 freeing a child, J, for adoption. J’s former parents were the first and second respondents and J, acting through his children’s guardian, was the third respondent. The facts are set out in the judgment.
Jonathan Cowen for A City Council.
The mother did not appear and was not represented.
Stefano Nuvoloni (instructed by Osborne & Co) for the father.
Richard Hadley (instructed by Lovsey Marsh) for the children’s guardian.
11 January 2013. The following judgment was delivered.
ELEANOR KING J.[1] This is an application made by A City Council for the revocation of an order made on 2 March 2006 freeing a child, J born [in] 1999 (now 13), for adoption. DC and JWW, who are J’s former parents, are the first and second respondents and J himself, acting through his children’s guardian, is the third respondent.
Introduction[2] J has the unhappy distinction of being one of a small, but significant, number of children in relation to whom a care order was made (s 31(1) of the Children Act 1989), followed by the making of an order (s 18(1) of the Adoption Act 1976), declaring him free for adoption, but in respect of whom, some years later he has neither been adopted nor had that order been revoked. Such children were styled statutory orphans by Wall J (as he then was in Re SC (a minor) (adoption: freeing order)[1999] 1 FCR 145, sub nom Re C (adoption: freeing order) [1999] Fam 240 in order to reflect the fact that no identifiable person, other than the local authority as adoption agency, has parental responsibility for such a child.
[3] The matter has come before the court today to consider how best to regularise the position of J (and of other children in a similar position for whom this and other local authorities are responsible), and to clarify the position of all parties involved in J’s life once his legal status reflects his true position.
Background[4] In October 2003 J and his sister became the subject of care proceedings instigated by A City Council as a consequence of their parents’ drug misuse. Following a failed attempt at the rehabilitation of both children to their mother, the county court made care orders and freeing orders in respect of both children on 2 March 2006. Neither the mother nor the father made declarations pursuant to s 18(6) of the 1976 Act which provides that a parent or guardian may make:
‘if he so wishes, a declaration that he prefers not to be involved in future questions concerning the adoption of the child’.
[5] The children moved to their adoptive placement on 20 June 2006 at which time J was seven-and-a-half. Unfortunately, although J’s sister settled well, J did not and his placement was formally terminated on 10 August 2007. J was moved to foster care where he has remained for the last five years.
[6] On 12 September 2007 a Looked After Child review (LAC review), meeting took place and J’s care plan, hitherto one for adoption, was changed to ‘permanency by way of long-term fostering’. Since 10 August 2007 J has been living with long-term foster carers with whom he is happy and settled. J has had no contact with either of his parents since 2006, although he continues to have direct contact with his sister.
[7] The effect of the making of the freeing order is as follows.
(i) By virtue of s 18(5) parental responsibility for J was vested in the local authority in their capacity as the adoption agency.
(ii) The care order made immediately before the freeing order lapsed.
(iii) Pursuant to s 12(3)(a) the parental responsibility held by the parents immediately before the making of the freeing order was extinguished.
(iv) The parents become ‘former parents’ and in the event that they had opted to make a declaration under s 18(6) (see [4], above) they would have received no more information concerning the adoption of their child.
[8] It follows that J has been a so-called statutory orphan since 2006, nearly half his life. In his case...
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