Prospective Adopters v Sheffield City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 21 October 2020 |
| Neutral Citation | [2020] EWHC 2783 (Fam) |
| Docket Number | Case No: FD20P00627 |
| Date | 21 October 2020 |
| Court | Family Division |
[2020] EWHC 2783 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD20P00627
Tom Wilson (instructed by Goodman Ray Solicitors) for the Applicants
Ruth Cabeza (instructed by Sheffield CC) for the Respondent
Hearing date: 9 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment may be published in this anonymised form. However, it will be a serious contempt of court if either the children or the prospective adopters were identified in any report of the case.
This is an application by the prospective adopters of two sisters, G, aged nine, and M, aged seven, under sections 6 and 7 the Human Rights Act 1998 for a mandatory injunction that the local authority shall return M to the physical care of the applicants.
On 6 March 2019 the Family Court granted a placement order in favour of the local authority. The care plan was for adoption. On 2 September 2019 the children were placed with the prospective adopters, a married couple.
Very sadly it appears that this placement has been unsettled almost from the beginning. To their credit, the prospective adopters had been aware of the challenges that likely lay ahead and there has not been, nor could there be, any criticism of them or the parenting that they have given the children. The prospective adopters' account of the circumstances makes for very disturbing reading and it was undoubtedly an exceptionally challenging situation for them and the children.
When the country went into lockdown in March of this year the problems experienced in the placement intensified. The most serious incidences have included:
i) G on at least three occasions assaulting M in a sexual manner causing her bruising and her skin to be broken;
ii) G lashing out at M, causing her physical and emotional harm;
iii) G deliberately targeting and destroying precious items belonging to M, including presents and personalised books from foster carers and their birth family; and
iv) G repeatedly self-harming, causing herself to bleed, pulling her own hair and leaving herself with marks on her body and threatening to kill herself.
M was also self-harming and was described by the prospective adopters as being preoccupied with ways in which she might die. Evidently the household was reaching, if indeed it had not already reached, a crisis point. Both children were grossly traumatised.
The prospective adopters asked for G to be accommodated separately. They were clear that G was repeatedly targeting M and that they could not keep G safe from herself or M safe from G even with a high level of supervision. The local authority would not do this without further assessments and did not agree to separating the children. The prospective adopters say they had previously rejected the proposal of respite care because,
“we need[ed] a solution, not a temporary fix. At the time, we thought that we could not consider putting the girls through further instability and trauma and wanted to get the right help now before the situation exacerbated.”
On 21 July 2020 G's state deteriorated to an unprecedent depth, it having been worsening for a number of days. In an episode that lasted several hours she bit herself, headbutted floors, doors and walls, gouged her eyes and pulled her hair out. It led eventually to an ambulance having to be called. Not only was this clearly all very distressing for G but also for the prospective adopters and very importantly for M who inevitably witnessed a great deal of G's behaviour. Only two days previously the children had been taken to A&E so that M's injuries inflicted by G could be assessed, and so that G could be admitted for her own safety and that of M.
On 21 July 2020 at 1:36 pm the prospective adopters sent an email to multiple professionals involved with the children at the local authority and an associated agency. It stated:
“Hi all, I thought by this point, after the email I sent last night, somebody may have been in contact to help us. We have had a lovely supportive text from [X], who has been incredible throughout, but I'm afraid this lack of action from everyone else is just reflective of the way we have been treated throughout. [Y] from CAMHS was very thorough and kind this morning but this is the support we should have had in October when we asked for it. We and the girls have been under incredible stress from that point, and it was impossible to think it could get worse, and in the last four weeks it has. If you are unwilling to act to protect M from G, when the most serious of harm is happening, you are leaving M to live with her abuser and face further harm, and G destroying herself and everyone around her. If you cannot protect us all now at the worst of times, I'm afraid that is it. We are heartbroken. We are not social workers and the response is not adequate from yourselves. Please come and get the girls. And wherever you place them I beg you separate M from G. We are no longer able to continue. … NB As I have been writing this email I have seen [Z] has tried to phone 5 minutes ago. I am not going to be ringing back”
(emphasis added).
The following day the children were taken into foster care in separate homes. They have continued to have contact with one another and have also continued to have direct contact with the prospective adopters. The prospective adopters have continued to be involved in decision making regarding the children.
On 14 August 2020 (and multiple times since) the prospective adopters sent an email to the local authority asking that M be returned to their physical care. The local authority did not agree to do so. It is at this point that they say the local authority's accommodation of M became unlawful. They say that up until this point the children, in particular M, was being voluntarily accommodated by the local authority with their consent. On 14 August 2020 they withdrew their consent and therefore they say the accommodation became unlawful. They have not asked for the return of G and therefore do not argue that her ongoing accommodation is unlawful.
On 7 September 2020 the prospective adopters filed an application for an adoption order with respect to M. Whether they had standing to do so or whether they must go through the process of seeking leave to apply for an adoption order is dependent on the outcome of this application.
The local authority resists the current application as well as the application for an adoption order. There has now been a further ‘together and apart’ assessment. It no longer recommends adoption. The local authority has now firmly formed the view that it is in the best interests of the children to be placed separately in foster care with a long-term view to them being reunited.
I now turn to the law. Section 35 of the Adoption and Children Act 2002 (“ACA 2002”) sets out how a child who is subject to a placement order can be returned. It provides:
Return of child in other cases
(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.
(2) Where a child is placed for adoption by an adoption agency, and the agency
(a) is of the opinion that the child should not remain with the prospective adopters, and
(b) gives notice to them of its opinion,
the prospective adopters must, not later than the end of the period of seven days beginning with the giving of the notice, return the child to the agency.
(3) If the agency gives notice under subsection (2)(b), it must give notice to any parent or guardian of the child of the obligation to return the child to the agency.
(4) A prospective adopter who fails to comply with subsection (2) is guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or a fine not exceeding level 5 on the standard scale, or both.
(5) Where
(a) an adoption agency gives notice under subsection (2) in respect of a child,
(b) before the notice was given, an application
(i) for an adoption order (including a Scottish or Northern Irish adoption order),
(ii) for a special guardianship order,
(iii) for a child arrangements order to which subsection (5A) applies, or
(iv) for permission to apply for an order within sub-paragraph (ii) or (iii),
was made in respect of the child, and
(c) the application (and, in a case where permission is given on an application to apply for an order within paragraph (b)(ii) or (iii), the application for the order) has not been disposed of,
prospective adopters are not required by virtue of the notice to return the child to the agency unless the court so orders.
(5A) A child arrangements order is one to which this subsection applies if it is an order regulating arrangements that consist of, or include, arrangements which relate to either or both of the following—
(a) with whom a child is to live, and
(b) when a child is to live with any person.
(6) This section applies whether or not the child in question is in England and Wales.
The prospective adopters argue that the email of 21 July 2020 was not a notice for the purposes of section 35(1) ACA 2002. The local authority says that it was. Counsel agree that there are no requirements as to form or substance of a section 35 notice...
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Prospective Adopters v Sheffield City Council
...the children was not unlawful and the As had no standing to make an adoption application. The judgment 15 This is to be found at 2020 EWHC 2783 (Fam). 16 As to what constituted notice under s.35(1), the Judge held that: “16. … for a notice to be given under section 35 ACA 2002 the intentio......