P-B (A Child)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LADY JUSTICE ARDEN,Lord Justice Thorpe,LORD JUSTICE WILSON,Lady Justice Arden |
| Judgment Date | 15 June 2006 |
| Neutral Citation | [2006] EWCA Civ 1016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2006/0888 |
| Date | 15 June 2006 |
[2006] EWCA Civ 1016
Lord Justice Thorpe
Lady Justice Arden
Lord Justice Wilson
B4/2006/0888
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WATFORD COUNTY COURT
(HIS HONOUR ROGER CONNOR)
[LOWER COURT No. WD04C01372/WD06Z00439]
Royal Courts of Justice
Strand
London, WC2
MR M KEEHAN QC & MR R O'DONOVAN (instructed by Messrs Taylor Walton) appeared on behalf of the Appellant.
MR N O'BRIEN (instructed by Hertfordshire County Council & Messrs Carr Hepburn) appeared on behalf of the Respondent.
The parties to these proceedings are the local authority, the mother and father of the child, and the child R via his guardian. R is nearly four years of age. His parents are not married. They commenced a relationship in 2001 and in addition to R, who was born on 29 July 2002, they also have E, who was born on 9 August 2003. During the course of their relationship they have cohabited, but now live separately.
Very sadly the mother of the appellant in this court suffers from something that is either Asperger's Syndrome or an Asperger's-type presentation. That has undoubtedly impeded her capacity to provide for R the standards of care immediately after his birth which would have been sufficient to relieve professionals involved with the family of anxiety. Her problems were compounded by post-natal depression, suffered after R's birth.
This potentially serious situation was dramatically compounded by the discovery in April 2004 that R was suffering from an acute form of leukaemia. Inevitably as a result of that, he has required very high standards of care and high standards of ongoing medical treatment. The local authority endeavoured to support the mother through the resulting stresses and strains, but very sadly in July 2004 they considered that a continuation of the process would put R at unacceptable risk. They applied for an Emergency Protection Order on 9 July and for a Care Order on the 15 July. Since the month of July, R has been in foster care under a series of interim Care Orders during the preparation towards trial. I emphasise that E has had no particular difficulties or illnesses in her early life and she is sufficiently cared for by her mother and remains in her mother's charge.
Following the initiation of the proceedings there were a number of directions appointments, many of them before HHJ Connor. There was a directions appointment before that judge on 11 November 2005, to which I will return, and on 27 January HHJ Connor made an order reducing the level of the mother's contact to R. At that stage, there had been seven care plans prepared and submitted, all of which provided for ultimate rehabilitation. However, on 1 February 2006 the local authority filed its eighth care plan and that abandoned the goal of rehabilitation and substituted the route to adoption. No doubt influential on that change was the report filed by Dr Yates, a child and adolescent consultant psychiatrist, who had been introduced into the proceedings by the Directions Order of 11 November.
The case was timetabled for a final hearing to commence on 6 March, and at a pre-trial review on 9 February the local authority indicated to the other parties that, pursuant to their eighth care plan, they were placing R's case before the adoption panel, which was due to meet next on 6 March. It was plainly indicated that if the panel favoured the adoption proposal, then the local authority would immediately issue an application for a Placement Order under the current legislation. The local authority's position was that the requirements of the Act and Regulations had to be complied with before the Placement Order application could be issued.
The trial commenced on 6 March. The panel approved the adoption proposal on the same day, and on 8 March the application for a Placement Order was issued. It was before the judge on the following day, 9 March, when the local authority sought a direction that it be immediately listed to be disposed of as part and parcel of the continuing trial of the Care Order application, and that all the evidence in the care proceedings should stand as evidence in the adoption proceedings. HHJ Connor acceded to that application and gave a short judgment explaining his reasons for so doing. The judgment has not been transcribed, but we have an agreed note of what he said.
During the course of the trial the judge heard extensive evidence from the parties, from the foster parents and from a number of professionals who had been involved with either the parents or with R, either delivering clinical services or making professional assessments. At the conclusion of the evidence the judge, I think, reserved for a period of about ten days and then handed down an exceptionally full and thorough judgment running to some 120 pages. The effect of the judgment was to grant the local authority's applications for the Care Order and for the Placement Order. The local authority had throughout been supported by the guardian ad litem, who fully adopted and endorsed the local authority's professional judgments and submissions.
The rival case had been very skilfully presented by Mr Michael Keehan QC leading Mr O'Donovan for the mother. The realistic target for which Mr Keehan strove was the rejection of the path to adoption at this early stage in R's life, in favour of a sort of moratorium during which he would remain with the foster parents and remain in medical treatment. That would provide the opportunity for a full review at the conclusion of the current medical treatment towards the end of 2007. Mr Keehan's alternative case had received support from a consultant paediatrician, Dr Raffles, and also from a clinical psychologist, Mrs Braier, who had carried out assessments of both parents.
The outcome, the judge rightly recognised at the conclusion of his judgment, was, as he put it, a great disappointment to the parents. Very naturally, an application for permission to appeal was mounted to the judge and he refused it, giving unusually full reasons for so doing. The application was renewed in this court and Hughes LJ on paper directed that the permission application be listed for oral hearing, with appeal to follow if permission granted. That has been the listing today and the hearing has throughout been treated as the hearing of appeal; although we have not formally, as yet, granted permission, we have plainly inferentially done so by listening with care to very skilful submissions from Mr Keehan and from Mr O'Brien in response. We have also heard briefly from Mr B, who has not been represented, but who made a statement to the court at the conclusion of counsel's submissions.
With that introduction, I turn to the two grounds which Mr Keehan has advanced on his client's behalf. He prefaced his submissions by making it quite plain that if Miss P were in person, she would present a wholesale attack on the judicial conclusion and strive for the immediate rehabilitation of her son. Mr Keehan has inevitably superimposed a realistic assessment of what could plausibly be argued in this court, and he has abstracted from the range of possibilities these two grounds which require separate consideration.
The first ground is essentially a complaint of procedural unfairness, in that a litigant who not only faced the huge emotional turmoil of contested care proceedings, with the high risk of losing her child at the termination, was then forced to respond to and adjust to the application for a Placement Order at the very latest stage in the trial, with no opportunity for reflection and no opportunity to advance a carefully considered case in relation to the Placement Order application or in relation to consequential issues of contact.
In advancing that submission, Mr Keehan introduces a point of statutory construction which can be confined to section 22 of the Adoption and Children Act 2002. This is the Act which introduces the current statutory scheme for the adoption of children in replacement of the Adoption Act 1976. Its operation is supplemented by rules, namely the Adoption Agencies Regulations 2005, and also by departmental guidance issued under section 7 of the Act. There is, first in time, the National Adoption Standards, and more recently the guidance, both of which have the same foundation and force. The narrow point is as to what is meant by the phrase:
"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."
That quotation comes within the provisions of sections 21 and 22. Section 21, Placement Orders, 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 be dispensed with.
This subsection is subject to section 52 (parental etc. consent) .
(4) A placement order continues in force until—
(a) it...
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