Re F (Placement Order)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall,Lord Justice Wilson |
| Judgment Date | 01 May 2008 |
| Neutral Citation | [2008] EWCA Civ 439 |
| Docket Number | Case No: B4/2008/0322 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 May 2008 |
[2008] EWCA Civ 439
Her Honour Judge Coates
Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Wilson
Case No: B4/2008/0322
HB07Z00163
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE BRIGHTON COUNTY COURT
Mr S Cobb QC & Miss M Hancock (instructed by Messrs Lawson Lewis & Co) for the Father
Miss J Briggs (instructed by East Sussex CC Legal Services) for the Local Authority
Miss G Buckley (instructed by Hillman Smart & Spicer) for the Mother
Hearing dates: 19th March 2008
This appeal raises a short point as to the construction of Section 24 of the Adoption and Children Act 2002. Before citing the section and defining the alternative constructions contended for I will establish the relevant background.
J-L F was born on the 11 th June 2006. Her parents had had a casual relationship and initially MC was not aware that he was her father.
The East Sussex County Council issued care proceedings on the 22 nd November 2006. MC (hereinafter the appellant) was not served with these proceedings and was initially unaware of them. However the following spring the local authority asked for his cooperation in DNA tests. In May 2007 the results showed the appellant to be J-L's father.
The local authority did not join him in the care proceedings and he did not himself seek any involvement in those proceedings or in J-L's life. At the time J-L resided with her mother in a mother and baby placement. In June her mother left the placement but J-L remained, with daily contact visits. In July the local authority adoption panel recommended adoption.
On the 30 th July the appellant was served with the proceedings. In that month he was hospitalised following a heart attack and took no part when, on the 17 th August, the county council obtained care and placement orders and J-L moved to foster parents. Nothing material occurred in the remaining months of the year 2007.
However January 2008 was an eventful month. The appellant learned from his mother that adoption plans for J-L were well advanced. (Indeed, unknown to him, J-L was matched for placement at an adoption meeting on the 9 th January). He was galvanised and on the 10 th January consulted solicitors who on the same day sought, and were immediately granted, public funding. Also on that day the appellant's solicitor informed the local authority of her instructions by telephone and sought information as to J-L's progress towards adoption. She was informed that J-L had not been placed but had been to a matching panel on the previous day. On the following day the application for leave to apply to revoke the placement order was filed at the Brighton County Court. Due to regrettable staff shortages in the county court the application was not fully processed until the 21 st January, when notices of a hearing on 30 th January were sent to the parties. The application was supported by a statement from the appellant explaining the relief that he sought.
Despite the appellant's emerging challenge, on 14 th January the council decision maker ratified the panel's decision of 9 th January and on the 15 th January the potential adopters met J-L for the first time.
No doubt because the telephone request for information had gone unanswered, the appellant's solicitor faxed to the council a highly significant letter in the mid-afternoon of 17 th January. I reproduce the letter in full:-
BY URGENT FAX: 01273 481900
URGENT ATTENTION OF
Dear Sirs
J-L F D.O.B. 11.06.06
We are instructed by M C, J-L's father.
We understand a Placement Order was made in the Brighton County Court on 17 August 2007. We have been instructed by Mr C to apply to the Court for leave to revoke the Placement Order on the basis that his circumstances have changed since the Order was made.
We have checked with the Court who inform us that the application has now been issued but, due to the fact that the Adoption clerk is away, may not be served until Monday. We have requested permission to abridge time for service of the Application.
In the meantime, we refer you to the Adoption and Children Act 2002 s24(5) and would you please confirm by return of fax that J-L has not yet been placed since we understand she went to Matching Panel early last week.
Yours faithfully”
In due course I will consider what was the council's dutiful reaction to these enquiries.
On the 23 rd January the council, according to Miss Briggs, who appears for them on the appeal and who represented the council on 30 th January, convened an informal meeting to agree their strategy as the principal respondent to the application listed for hearing on the 30 th. We have no minutes to show who attended, what was considered, and what was decided. Miss Briggs says that since the council is respondent to an appeal and not a judicial review application, it was not incumbent on the council to enlighten us. I do not find that position satisfactory. The judge below was strongly critical of the council. If the council elects not to explain and justify, it has both no prospect of shifting the judge's criticisms and also the risk that we will be more trenchant in condemnation. All we were told by Miss Briggs was that both the legal department and the adoption department attended, that consideration was given to Section 24 but whether consideration was also given to the guidance given by my lord, Wilson LJ, in Re: M. & L., Warwickshire v M. [2007] EWCA Civ 1084 she could not say. Her instructing solicitor had not been responsible for legal advice since that responsibility had been elevated to a higher level in the legal department.
What was in fact decided at that meeting can readily be inferred from the council's subsequent conduct. No evidence was filed in response to the appellant's statement. J-L was placed with the prospective adopters on 29 th January and on 30 th January Miss Briggs simply submitted on the council's instructions that the terms of Section 24 (2) (b) removed the court's jurisdiction to grant leave. The judge reluctantly upheld that unattractive submission but granted permission to appeal. The principal issue for us is whether the judge was right or wrong to uphold the council's submission on the meaning and effect of Section 24.
That this appellant has suffered a manifest injustice can hardly be disputed. That others may suffer similarly in future is an evident risk. Can justice be done to the appellant by this court and can others be safeguarded in the future by a liberal construction of Section 24? That is the first question that I will address in my conclusions. If the answer is negative then Mr Cobb QC for the appellant invites us to consider safeguards to reduce the risk of future injustice.
I have so far recorded only what the council did. I will now consider what it should have done and the alternative options open to it in response to the appellant's attempt to offer belatedly an upbringing for J-L by a biological parent.
The first duty on the council was to respond promptly and openly to the entirely legitimate requests for information. The failure to respond to the final paragraph of the letter of the 17 th January was in my judgment a particularly serious breach of the council's duty. With the advantage of hindsight it can be said that the final paragraph should have sought an undertaking from the council not to place J-L prior to the determination of the appellant's application for permission. A refusal, or even silence, would have triggered an application to the court for an injunction. However there is plainly enough spelt out in that final paragraph to demonstrate that the writer was seeking reassurance six days after the filing of the application and thirteen days before its return. The council's failure to answer that letter and the subsequent placement on the eve of the hearing give rise to the clearest inference that the council was out to gain its ends by means more foul than fair. There are many who assert that councils have a secret agenda to establish a high score of children that they have placed for adoption. When such suspicions are rife a history such as this only serves to fuel public distrust in the good faith of public authority.
No doubt the council would say that throughout they were motivated to achieve the best for J-L. Certainly the court had sanctioned adoption for J-L some five months earlier. However that was at a time when there was no member of the birth family offering J-L a future. A balanced promotion of welfare required at the least an investigation of what the appellant had to offer and whether adoption remained the better choice. To deny the appellant was also to deny the child the chance.
Not only did the council owe a duty to the appellant and to the child but also, in my judgment, to the prospective adopters. Once the appellant put himself forward and sought the revocation of the placement order, to press forward on the road to placement without warning the prospective adopters that their legitimate expectations might never be realised was an abuse of their trust.
No doubt the council would say that such information which they possessed as to the appellant's circumstances and history compelled a value judgment that what he had to offer could never match what the prospective adopters offered. The process that the appellant had commenced well accommodated such a judgement. The council had only to file their statements, to seek an expedited hearing of the application for leave...
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