F (A Child)
| Jurisdiction | England & Wales |
| Judge | Black LJ,Kitchin LJ,Rimer LJ |
| Judgment Date | 23 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1277 |
| Date | 23 October 2013 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2013/0938 |
[2013] EWCA Civ 1277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM DERBY COUNTY COURT
HIS HONOUR JUDGE ORRELL
DE13Z00015
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rimer
Lady Justice Black
and
Lord Justice Kitchin
Case No: B4/2013/0938
Mr Tony Cranfield (instructed by Harthills Solicitors) for the Appellant
Mr Gordon Semple (instructed by Derbyshire County Council) for the 1 st Respondent
Miss Jane Drew (instructed by The Anderson Partnership) for the 3 rd Respondent
This is a second appeal against the making of a placement order in relation to L, a little girl who was born on 31 March 2009 and is therefore 4 years old.
The appellant is L's father (F). L's mother (M) supports F's appeal but has not appeared or been represented in front of us. The respondents to the appeal are the local authority (LA) and L by her children's guardian (the guardian).
On 14 December 2012, the family proceedings court made a care order in respect of L and, having dispensed with the consent of the parents to L being placed for adoption, a placement order. There has been no appeal against the making of the care order but the parents appealed against the placement order. On 13 March 2013, HHJ Orrell dismissed that appeal. F was given permission to bring this second appeal to the Court of Appeal on the basis that the case gives rise to an important point of principle.
The special feature of this case which gives rise to that point of principle is that L is a troubled child who, according to the psychological evidence, requires intensive therapy. The psychologist did not describe L as "unadoptable" but said that she is not ready for adoption now and that a programme of therapeutic parenting would have to be completed first. As the therapy programme was designed to strengthen the bond between L and her main carer, there were serious questions as to whether it would be in L's interests to be moved following it, whether she would cope with such a move and whether she would settle in a new placement. The psychologist said in a written answer given in November 2012 that:
"a judgment would have to be made at a later date as to whether the potential benefits of being adopted would outweigh the potential problems caused the child by moving her from a secure base and severing emotional ties to her foster carers. I recognise the impact of the latter could be lessened by good transition planning and also access to advice and possibly therapy during the initial stages of placement. However, it is difficult to make predictions or recommendations at this point."
Notwithstanding the open questions, the psychologist was in favour of a search being commenced for suitable adopters sooner rather than later. She stressed that the potential adopters would have to have a very good understanding of what L needed; she hoped that experienced parents would be found who had a proven track record.
The question was whether it was open to the justices in the family proceedings court, presented with this evidence, to say that at the date of the hearing, adoption was in L's best interests and to make the placement order that would assist LA in its search for prospective adopters. Judge Orrell decided that the justices were entitled so to decide. We must consider whether he was right.
The law
The statutory scheme under the Adoption and Children Act 2002
Section 21 deals with placement orders. It provides:
(1) 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.
(2) The court may not make a placement order in respect of a child unless —
(a) the child is subject to a care order,
(b) the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or
(c) the child has no parent or guardian.
(3) The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied —
(a) that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or
(b) that the parent's or guardian's consent should dispensed with.
This subsection is subject to section 52 (parental etc consent).
(4) [not necessary for this appeal].
Here section 21(2)(a) applies. As the parents do not consent to the child being placed for adoption, a placement order can only be made if section 21(3)(b) also applies, that is the court is satisfied that their consent should be dispensed with. The circumstances in which consent should be dispensed with are set out in section 52.
Section 52(1) provides that:
"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 it is satisfied that —
(a) the parent or guardian cannot be found or lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent, or
(b) the welfare of the child requires the consent to be dispensed with."
A local authority has a duty to apply for a placement order in the circumstances set out in section 22(1) and (2) which provide:
(1) A local authority must apply to the court for a placement order in respect of a child if —
(a) the child is placed for adoption by them or is being provided with accommodation by them,
(b) no adoption agency is authorised to place the child for adoption,
(c) the child has no parent or guardian or the authority consider that the conditions in section 31(2) of the 1989 Act are met, and
(d) the authority are satisfied that the child ought to be placed for adoption.
(2) If —
(a) an application has been made (and has not been disposed of) on which a care order might be made in respect of a child, or
(b) a child is subject to a care order and the appropriate local authority are not authorised to place the child for adoption,
the appropriate local authority must apply to the court for a placement order if they are satisfied that the child ought to be placed for adoption.
Where a placement order is made, parental responsibility for the child is given to the adoption agency who may determine that the parental responsibility of the parents is restricted, see section 25.
The placement order continues in force until it is revoked under section 24 or an adoption order is made in respect of the child or the child marries, forms a civil partnership or attains the age of 18, see section 21(4).
Section 24 provides that a placement order may be revoked on the application of any person but that a person other than the child or the local authority may not apply unless the court has given leave to apply and the child has not been placed for adoption by the authority. Leave cannot be given unless the court is satisfied there has been a change of circumstances since the placement order was made, see section 24(3).
If the child is placed for adoption following the making a placement order, the parents cannot oppose the making of an adoption order without leave of the court, which cannot be given unless the court is satisfied that there has been a change of circumstances since the placement order was made, see section 47.
Whenever a court is coming to a decision relating to the adoption of a child, section 1 applies. Section 1(2) provides that the paramount consideration of the court must be the child's welfare throughout his life. The court must at all times bear in mind that, in general, any delay in coming to the decision is likely to prejudice the child's welfare, see section 1(3). Factors to which the court must have regard, amongst others, are set out in section 1(4).
Authorities
We were invited to have regard to three authorities concerned particularly with placement orders. They are, in the order in which they were decided: Re T (Children: Placement Order) [2008] EWCA Civ 542 [2008] 1 FLR 1721, NS-H v Kingston-upon-Hull City Council and MC [2008] EWCA Civ 493 [2008] 2 FLR 918 and Re P (children: parental consent) [2008] EWCA Civ 535 [2008] 2 FLR 625.
Re P is important because it establishes that before parental consent can be dispensed with under section 52, the court has to be satisfied that the welfare of the child throughout his life requires adoption, rather than something short of adoption. That is the starting point for the arguments in this case.
The parties invited our attention to Re P in relation to placement orders more generally and I will return to that later. I propose to deal with the trilogy of cases on placement orders in chronological order.
Re T was the first of the decisions. It will be necessary to look quite closely at its facts because there is an issue as to whether it can be distinguished from the present case. The argument in Re T, which found favour with the Court of Appeal, was that it was too early for the judge to have made the placement order that he made because (as Hughes LJ put it at the start of his judgment, see §2) "the children were very disturbed and the local authority proposed to place them in a specially selected therapeutic foster placement for an unspecified period not shorter than six months before making the decision how and where to place them for the long term". Different estimates were given of how long the placement might need to last but the judge's conclusion was that it would be not less than six months and could be up to a year and...
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