N (Children: Revocation of Placement Orders)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lord Justice Baker,Lady Justice Andrews |
| Judgment Date | 17 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1352 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-001797 |
[2023] EWCA Civ 1352
Lord Justice Peter
Jackson Lord Justice Baker
and
Lady Justice Andrews
Case No: CA-2023-001797
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT AT MILTON KEYNES
Recorder Newport
MK11/2023
Royal Courts of Justice
Strand, London, WC2A 2LL
Leslie Samuels KC and Christine Julien (instructed by Reena Ghai LLB Hons Solicitors) for the Appellant Mother
Nick Goodwin KC and Alex Perry (instructed by Milton Keynes City Council) for the Respondent Local Authority
The Respondent Father represented himself
Rex Howling KC and Clarissa Wigoder (instructed by Sills & Betteridge Solicitors) for the Respondent Children by their Children's Guardian
Hearing date: 8 November 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 17 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Overview
This is an appeal by the mother of two children, a girl aged 7 and a boy aged 5, from the dismissal of her application to discharge placement orders and her application for the instruction of an independent social worker to investigate the children's situation more fully. The appeal is supported by the children's father, from whom the mother has separated, but opposed by the local authority and by the Children's Guardian.
The underlying proceedings began as long ago as October 2019 because of domestic abuse by the father from which the mother was not protecting the children. In November 2019, interim care orders were made on a plan for the children to remain with the mother, with the father being excluded from the home. A fact-finding hearing before a District Judge concluded in June 2020, but an appeal by all parties was allowed in September 2020 and a fresh fact-finding hearing was ordered. That was a substantial hearing before a deputy judge, ending in February 2021 with the removal of the children, then aged 4 and 3, from the mother's care; they have been in foster care ever since. The deputy judge found that the father had repeatedly assaulted the mother but that she had lied about it or retracted complaints and had failed to separate from him or protect the children from being exposed to such incidents. Neither parent had engaged with the child protection plans and the work and support offered. In July 2020, the father had breached the exclusion requirement and the mother subsequently retracted her report to the police.
After an even more substantial welfare hearing, the deputy judge made placement orders in December 2021. Permission to appeal was refused by my Lord, Baker LJ. Farewell contact with the mother took place in March 2022, and the prospective adopters were identified in October 2022. Introductions began, but on 2 March 2023 the mother applied for leave to apply to revoke the placement orders, which was granted unopposed on 11 May. With the court's approval, fortnightly meetings between the prospective adopters and the children have continued. The children, who are unaware of the mother's application, are confused about why they have not yet moved to their adoptive home.
The proceedings are unusual. Placement orders are sometimes discharged because the adoption plan cannot for some reason be carried out. Applications for permission to apply to revoke a placement order are not uncommon, but very few cross the threshold requiring that there has been a sufficient change of circumstances since the making of the placement order and that it would be in the child's interests for the application to be heard. We are only aware of two reported appeal cases concerning opposed applications for revocation.
In this case, permission to apply to discharge the orders was granted without opposition because the mother had made significant changes since the making of the placement orders. She had consolidated her personal life and had distanced herself from the father, for whom she had previously covered up. At the same time, the children had travelled a long way down the path to adoption and, but for the mother's application, would have been in an adoptive placement months ago. The court therefore had a welfare decision to make: were the prospects of a return to the mother's care good enough to justify abandoning a plan for adoption that had been over two years in the making?
The mother's application was heard for four days, with judgment being given on 1 September 2023. After a thorough assessment, Recorder (now HHJ) Newport found that he had sufficient information to make a final decision and he rejected the proposal for further assessment of the mother by an ISW. He concluded that it would not be in the children's interests to revoke the placement orders. He agreed with the social workers and the Guardian that, despite the mother's considerable efforts, she could not meet the needs of children who now need skilled parenting.
Having heard the appeal, I would uphold the recorder's careful decision. Like him, I acknowledge the progress that the mother has made since the children were removed from her care 2 1/2 years ago. However, time has not stood still for them either and they now urgently require a permanent home. The mother accepted that she could not provide that as matters stood. The recorder's conclusion is one that was plainly open to him and there is no basis upon which we could interfere.
The legal framework
Section 24(1) Adoption and Children Act 2002 simply provides that the court may revoke a placement order on the application of any person. Subsection (2) provides that leave is required for an application by anyone other than the local authority holding the placement order, and subsection (3) states the criterion for granting leave.
Once leave has been granted, the decision under section 24(1) is a welfare decision to which section 1 of the Act applies: see section 1(7)(a). When determining an application under this section, the question for the court is whether it has been shown that it is in the child's interests for the placement order to be revoked. In reaching a conclusion, the court will apply the provisions of section 1 in the light of the important principles that underpin the exercise of the original power to make care and placement orders.
These principles were set out by Baker LJ in In re C (Children) (Placement Order: Revocation) [2020] EWCA Civ 1598, [2020] 4 WLR 167 at paragraphs 17–21. At paragraph 22 he concluded that they plainly have a bearing on applications to revoke a placement order. I agree, and would only add one very minor comment. Paragraph 23 contains a summary of the principles derived from the judgment then under appeal. We heard some submissions about minor aspects of that summary. In particular, subparagraph (g) suggests that a placement order might be revoked where parental/family care is merely ‘realistic’, when the correct test, stated above, is that revocation must be in the child's interests. With this slight amendment, I would also endorse paragraph 23.
As with any application, the legal burden of proof will rest with the applicant, here to show to the civil standard that it is not in the interests of the child to maintain the placement order. That is as it should be, since it is the applicant who seeks to change a plan for adoption that has been approved after serious deliberation. However, the outcome of the application will not in reality turn on the burden of proof, as the court will not be able to find that a placement order remains in the child's interests if it no longer meets the stringent conditions that justify such a fundamental order. As the trial judge put it in Re C (see paragraph 26), the question is not ‘why shouldn't the placement orders remain?’ but ‘what does the welfare of these children now require?’. Further, once permission to apply has been granted, the principles governing that preliminary stage are no longer relevant and the court's task is to carry out an impartial review of whether a placement order continues to be in the interests of the child.
On evidential matters, the usual position applies. The party seeking a factual finding will bear the burden of proving it, again to the civil standard. So, it will typically be for an applicant parent to show how much their situation has changed since the placement order was made, and for opposing respondents to make good their case about what a change of plan would mean for the children. Moreover, although the substantive principles surrounding adoption are constant as between applications for placement orders and applications for revocation, the evidential picture will not usually be the same. Overall, the evidence before the court at a revocation hearing will differ in quantity and focus (but not quality) from the evidence that was given in the care and placement proceedings. That is because the court has already made its findings about events preceding the placement order, so that subsequent evidence will be more closely focused on events since then and, crucially, on the future.
It happens that since the recorder's judgment in this case, this court has considered a Guardian's appeal from the revocation of placement orders in Re H (Children: Placement Orders) [2023] EWCA Civ 1245. At paragraph 45, I said this:
“At the same time, the boys, who urgently need a permanent family that can give them skilled parenting, have been kept waiting for what now amounts to 2 1/2 years. They had said goodbye to their birth family and been prepared for adoption. That plan could only sensibly be sacrificed in favour of a plan for rehabilitation if the evidence showed that success could be predicted with a high degree of confidence.”
In the following paragraph I listed the sequence of events that...
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