Re B (Children) (Adoption)
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Dame Janet Smith,Lord Neuberger |
| Judgment Date | 22 June 2011 |
| Neutral Citation | [2011] EWCA Civ 729 |
| Docket Number | Case No: B4/2011/0655 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 June 2011 |
[2011] EWCA Civ 729
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE COVENTRY COUNTY COURT
HIS HONOUR JUDGE BELLAMY
LOWER COURT NO: CV11C00130
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Neuberger, Master of the Rolls
Lord Wilson
and
Dame Janet Smith
Case No: B4/2011/0655
Miss Frances Judd QC and Mr Mark Higgins (instructed by the Council's Legal Services) appeared for the Appellants, the local authority.
Mr Alistair MacDonald QC and Ms Theresa McCormack (instructed by Button Legal LLP, Coventry) appeared for the First and Second Respondents, the foster parents.
Miss Elizabeth McGrath (instructed by Kundert Solicitors, Coventry) appeared for the Third Respondent, the mother.
The Fourth Respondent, the father, did not appear.
Mr Robin Arwel Lewis (instructed by Varley Hibbs LLP, Coventry) appeared for the Fifth and Sixth Respondents, the children, by their Children's Guardian.
Hearing date: 18 April 2011
A: THE TWO QUESTIONS
(a) When short-term foster parents suddenly give notice of intention to adopt their foster child and thus wish to prevent the local authority's imminent removal of him from their home into the home of prospective adopters pursuant to a placement order, does a county court judge have jurisdiction to make an injunction against the local authority's removal of him and, if so, what considerations inform the exercise of such jurisdiction?
Such is the main question posed by this appeal.
(b) Is a child "placed" for adoption when an adoption agency ratifies the match between a child and prospective adopters and when thereafter he first meets them or is he "placed" for adoption only when he subsequently begins to live with them?
Such is the subsidiary question posed by this appeal.
B: INTRODUCTION
On 14 March 2011, in the Coventry County Court, His Honour Judge Bellamy made an injunction against Coventry City Council ("Coventry") not to remove two children from the care and control of foster parents until 22 May 2011 (being the earliest date upon which it would be open to them to make an application for adoption orders referable to the children) and, in the event that such an application was made on that date, until its determination.
With the permission of the judge, Coventry appeal against the judge's injunction. They also seek to appeal against another order made by him on the same date, in respect of which he did not permit an appeal. This other order was to adjourn until a further hearing before him on 15 June 2011 an application made by the foster parents for leave to apply to revoke the placement orders referable to the children, which, together with full care orders, he had made in favour of Coventry on 18 June 2010.
The two children are L, a boy, who was born on 17 November 2008 and is thus now aged two, and C, a girl, who was born on 28 October 2009 and is thus now aged one. Their parents, who appear to continue to live together, are, through no fault of their own, unable to care adequately for either of them. L has lived with the foster parents since he was aged two months; and C has lived with them since birth. A third child was born to the parents in December 2010 and is in the care of other foster parents; the foster parents of L and C have expressed interest in also adopting him.
The judge's orders made on Monday 14 March 2011 were reflective of a careful, reserved judgment which he then handed down and which he had composed, with his customary assiduity, over the prior weekend following a hearing on Friday 11 March 2011. Unfortunately the hearing was able to be listed only for two hours; and it was too short to enable the judge to receive oral evidence in relation to an important issue of fact raised between Coventry and the foster parents which I will identify in [14] below. Indeed the various issues of law, some of which have now fallen away, carried a complexity which deserved fuller submissions from the advocates than the length of the hearing allowed. Miss Judd QC, who appears before us on behalf of Coventry, (unlike Mr MacDonald QC, who appears before us on behalf of the foster parents) appeared before the judge on 11 March and, perhaps on behalf of all the advocates who then appeared, she accepts before us that, in retrospect, the degree of assistance given to the judge was less than optimal.
The mother has met the foster parents, likes them and admires the care which they have given to the children. Before the judge, by counsel, she supported their application for an injunction in restraint of removal from them; and she supports their opposition to the appeal. By a solicitor, the father also supported their application; and, while he properly takes no active part in this appeal, I assume that he also supports their opposition to it. The stance taken by the Children's Guardian before the judge was clearly influential. The guardian who had represented the children in the care and placement proceedings in 2010 had left Cafcass; in such circumstances a fresh Cafcass guardian was appointed to represent them in the present proceedings. By the date of the hearing on 11 March she had been in post only for 16 days and had met the foster parents and the children only once. At all events, by counsel, she firmly supported the application of the foster parents for an injunction and she firmly supports their opposition to the appeal.
C: THE ADOPTERS
In the judgment in June 2010 by which he made the care and placement orders, and in judgments at interim hearings prior thereto, the judge had been critical of Coventry's lack of firm planning for the children's future. In his judgment on 14 March 2011 he summarised it as having been dilatory and lack-lustre; and he proceeded to add criticism of their delay in arranging for the placement of the children for adoption following his investment of them in June 2010 with the authority to place them. Although he fell into error in saying that it was as late as February (rather than on 19 January 2011) that Coventry's adoption panel had approved the match of the children with the prospective adopters (whom, for convenience and without disrespect to the foster parents, I will describe as the adopters), Miss Judd, with the frankness typical of her, accepts before us that the judge's criticisms of Coventry are fair.
On 15 February 2011, in the foster home, the children first met the prospective adopters. Later that day the adopters and the foster mother attended a meeting arranged by Coventry. The adopters reported that the children's initial introduction to them had gone very well; and the foster mother did not dissent. Thereafter until 23 February the adopters, at least one of whom had taken a week's leave from work, saw the children daily: first again in the foster home; then including a trip out with the children in the presence of the foster parents; then including a trip out with them otherwise than in the presence of the foster parents; and then in their own home.
On 21 February 2011, prior to their again taking the children to their home for the day, the adopters attended a meeting. The foster mother also attended it. Coventry's adoption team manager asked the foster mother and the adopters for reports on the success of the programme of introductions. The foster mother, who, three days earlier, had privately told Coventry of concerns that the children were unsettled, told the meeting that they were beginning to feel more comfortable with the adopters. The adopters reported that in their view the introductions had been successful and had proceeded better than they had expected. The link worker for the foster parents reported that, over all, the introductions had been very positive. It was accepted on all sides that the final part of the programme should be implemented; and the foster mother, as well as the adopters, signed a written agreement to that effect. The final part of the programme was that
(a) the adopters should take the children home for that day;
(b) they should do the same on 22 February, albeit for longer; and
(c) at 10:00am on 23 February they should collect the children from the foster home in the presence of the link worker and take them to live with them.
I must avoid describing 23 February 2011 as the date of the intended "placement" of the children with the adopters. I must avoid doing so because, at [41] to [44] below, I will address an argument put before us by Miss Judd to the effect that the "placement" of the children had occurred at an earlier stage.
Thus the programme of introductions proceeded, as planned, on 21 and 22 February 2011. At about 4:00pm on 22 February a social worker from the Looked After Children's team visited the adopters' home and made a highly positive assessment in terms which I will set out in [51] below. Everything then seemed ready for the final movement of the children into the home of the adopters at 10:00am on the following day.
At 5:00pm on 22 February 2011, however, Coventry were notified that, earlier that afternoon, the foster parents, by solicitors, had made two sets of applications (which, for the sake of simplicity, I will describe in the singular, namely as two applications) to the court, namely for adoption orders in relation to both children and for revocation of the placement orders in relation to them, and that, without notice, a judge had directed that the applications should initially be considered at a hearing, on notice, on the following morning. It later transpired that the foster parents had been seeking legal advice in this regard since 16 February 2011, i.e. five days prior to the foster...
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