Prospective Adopters v Sheffield City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Baker,Lord Justice Peter Jackson:,Lord Justice Lewis |
| Judgment Date | 26 November 2020 |
| Neutral Citation | [2020] EWCA Civ 1591 |
| Date | 26 November 2020 |
| Docket Number | Case No: B4/2020/1821 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 1591
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE (FAMILY DIVISION)
Mr Justice Mostyn
FD20900627
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Baker
and
Lord Justice Lewis
Case No: B4/2020/1821
Deirdre Fottrell QC and Tom Wilson (instructed by Goodman Ray LLP) for the Appellant Prospective Adopters
Ruth Cabeza (instructed by Sheffield City Council) for the Respondent Local Authority
Hearing date: 19 November 2020
Approved Judgment
Introduction
In July 2020, two children who had been placed for adoption by a local authority moved from the care of their prospective adopters and returned to foster care. In August, the prospective adopters asked for one of the children to be returned. When the local authority refused, they issued adoption proceedings and also applied for an order for the child's return. In a decision given on 21 October 2020, Mostyn J dismissed the application for a return order and struck out the adoption proceedings. The prospective adopters, having appealed from both decisions, no longer challenge the dismissal of the application for a return order and their appeal in that respect will be dismissed. However, they maintain their appeal from the striking out of the adoption proceedings because they wish to adopt the child or at least to have a voice in the planning for her future.
The appeal primarily turns on the application of Section 35(1) of the Adoption and Children Act 2002 (“ACA 2002”), which reads:
“(1) Where a child is placed for adoption by an adoption agency and the prospective adopters give notice to the agency of their wish to return the child, the agency must
(a) receive the child from the prospective adopters before the end of the period of seven days beginning with the giving of the notice, and
(b) give notice to any parent or guardian of the child of the prospective adopters' wish to return the child.”
The local authority contends that the prospective adopters gave notice under this section when the children left their care and the Judge agreed. The consequence would be that the placement for adoption had come to an end and that the prospective adopters accordingly had no right to apply for an adoption order without first obtaining the leave of the court.
There is a subsidiary issue as to whether, if the prospective adopters did not give notice, the local authority did so itself under s. 35(2). The Judge decided that it did not need to give notice but that it had anyhow done so tacitly.
The facts
G (9) and M (7) are sisters who had very unsettled early lives, with repeated changes of carer. In March 2019 they were made the subject of placement orders and were then matched with the prospective adopters, Mr and Mrs A. After introductions, the children were placed with them in September 2019. From an early stage the girls' behaviour was very difficult to manage. The As responded in an exemplary way but the situation would have challenged any parents. Concern was felt about both children, but the culminating problem was a number of assaults by G on her younger sister. In early July 2020 the As suggested that the children needed to be separated for their own protection, but the local authority would not agree to this without undertaking a sibling assessment. Before that could happen, matters reached crisis point and on 22 July both children were removed at the request of the As and placed in separate foster homes.
On 14 August the As asked the local authority to return M, but not G. That request was refused and on 7 September they made an application for an adoption order in respect of M. On 25 September, an application followed under the Human Rights Act 1998 (‘ HRA 1998’) seeking an order for M's immediate return to their care. That application and the adoption application came before the Judge on 9 October. In a judgment delivered on 21 October he dismissed the application for an order under the HRA 1998 and struck out the adoption application. On 4 November I granted permission to appeal.
The relevant communications
The Judge found that notice under s. 35(1) was given in an email written by Mrs A on her mobile phone on 21 July. This message (number 3 below) was one of a series of emails from the As to a group of twelve social work professionals over the days leading up to the removal of the children. The communications vividly demonstrate the overwhelming challenges that existed at the time:
(1) From Mr and Mrs A at 21.46 on Saturday 18 July:
“To reiterate and confirm our previous concerns:
— The girls ARE at risk of serious harm here from themselves/ one another
— We cannot keep the girls safe from themselves/ one another
— G's behaviour is deteriorating every day, and she is becoming less and less able to cope
After several serious incidents this week where G has caused herself serious harm (At school, at home, in front of other members of family), threatening to kill herself, and destroying M's possessions, we are at crisis point. I have called, and left a message with Sheffield's out of hours team and I would like somebody to call me as soon as possible.
Tonight, after having a couple of hours with my sister who came from London to see me for first time since Lockdown began, I have come back to [Mr A] in G's room unable to stop G biting herself manically all over body, up arms and legs, he's come away to open door for me, hoping she may stop too without the attention, I go up, G's legs covered in blood as it looks like she's bitten in two places really hard, I manage to get her down for hug and stop her, and manage to settle. Then M calls [Mr A] in several times. Once he's happy G is ok with me, goes into M. She then tells him G has hurt her private parts again. G can hear with me. And starts diving for her shoulders with her teeth. Eventually I can restrain and calm her.
Apparently when I was drying my hair before I went to see my sister, M and G had been colouring. M had gone to loo and G had followed her. [Describes assault on M's private parts by G.]
M has two huge bruises… She is in significant pain tonight. It is horrific.
We are beyond devastated that yet again this has happened in our home when we already feel like we're doing everything in our power and have been so desperately asking for help.
M cannot be subjected to this any longer.
G cannot be expected to cope with this any longer, and needs urgent, specialist help.
We will all be traumatised by tonight's events.
Every day the retraumatising of the girls is becoming more and more significant.
Please somebody call us.
[Mrs and Mr A]”
(2) From Mrs A at 00.13 on Tuesday 21 July:
“Hi all,
After a day of general calm with [G] alone with me, tonight we had our most prolonged period of self harm which resulted in us calling an ambulance.
It had begun at bedtime after finding two more of [M]'s headbands broken to smithereens under G's pillow. G ran off into another room and immediately started hurting herself. For the next two and a half hours [Mr A] and I were trying to keep her safe from herself whilst she attempted to bite herself, headbutt floors doors and walls, gauging her eyes, kicking and hitting doors (Including glass doors) floors and me, pulling her hair out, grabbing at anything she could — hangers, pegs, microphone stands, shoes, head slides… anything she could do to harm herself whilst screaming, wailing, laughing… total delirium. After 20 mins we called the CAMHS crisis — and then began a succession of being passed from pillar to post whilst in total crisis. We decided an hour in that we'd take her back to ED, and she started to calm as we prepared to go. So we sat for a couple of minutes, before 5 minutes later, it all began again. In desperation [Mr A] called Sheffield who told us to ring an ambulance.
The specialist mental health nurse called us back around 30 mins later and whilst G had begun to calm, she told me/ him she still wanted to hurt herself so he thought, especially because of her age, they needed to send an ambulance to send to ED, especially as she had had a second wave of distress earlier.
An hour later, G had calmed, and was allowing me to look after her, and she had started to fall asleep. With our CAMHS appt first thing, I thought at 22.30 (3.5 hours after it began), as she was started to drop off, it better that she got some sleep, so called Ambulance service to cancel.
As well as the worry for G, tonight M was again subjected to a huge trauma. Whilst we were trying to soothe/ restrain G, M was cowering behind our bed holding onto her toys for dear life, sobbing hysterically. She cannot continue to be exposed to this trauma and abuse. Luckily my neighbour took her from me, so she didn't have to be exposed to the entirety of it as she was shaking and terrified, and obviously didn't want to be left alone with my friend K but obviously it was a necessity to protect her. The headbands tonight, were the last of M's… this week G has destroyed every single one of M's headbands. Ones we've tried to fix before. Precious personalised books and presents from foster carers and family. Bracelets. Toys. Anything that is precious to M she always targets. Never anything of her own. M, at this stage, has very little that hasn't been broken, and this week, alongside the harm she has suffered at G's hands, the threats of G to kill herself, M screaming from the back of the car as I'm driving that G is hurting herself and screaming “she's...
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