Re P (Placement Orders: Parental Consent)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Wall |
| Judgment Date | 20 May 2008 |
| Neutral Citation | [2008] EWCA Civ 535 |
| Docket Number | Case No: B4/2007/2503 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2008 |
[2008] EWCA Civ 535
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
HH JUDGE RICHARDS
sitting in the County Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall
Mr Justice Munby
Case No: B4/2007/2503
Charles Geekie QC and Fiona Baruah (instructed by Allan Rutherford Solicitors Ltd) for the Appellant
Kate Thirwall QC and Paul Butterworth (instructed by The County Council) for the Respondent
Hearing date: 12 th March 2008
Lord Justice Wall:
Introduction
This is the judgment of the court, to which each of its members has contributed.
This appeal (for which Thorpe and Wall LJJ gave permission at an oral hearing on 6 February 2008) raises in a clear and straightforward way two points of considerable importance for the future development of the law and practice of adoption in England and Wales. The first is a pure point of law, namely: what is the proper test for dispensing with parental agreement to the making of a placement order under section 52(1)(b) of the Adoption and Children Act 2002 (the 2002 Act)? The second is a mixed question of policy and practice; namely is it a proper exercise of the power under section 52(1)(b) to dispense with parental consent to the making of a placement order, when the adoption agency in question proposes to conduct a search for both fostering and adoptive placements, and, depending on the outcome of the search, may well place the children concerned in separate long term foster placements if either or both prove unadoptable, and neither can be placed with the other?
A third question is implicit in the second, namely: is what had been called in argument “dual planning”– that is to say the simultaneous search for both long term foster placements and adoptive parents —a permissible use of the powers given to local authorities and adoption agencies under the Children Act 1989 (the 1989 Act) and the 2002 Act?
We have been invited to give guidance on these issues, and we are grateful for the considerable assistance which we have received from leading counsel for, respectively, the children's mother and the local authority / adoption agency. We also have the advantage of a constitution comprising three family judges, and it is particularly appropriate that the third member of the court, Munby J, usually sits at first instance, and is thus able to bring to our judgment on this appeal his practical and recent experience of the difficult issues of law and practice thrown up by this type of case.
In addition, the particular facts of the case give rise to a question relating to post adoption contact, and the role of the court in ensuring that such contact takes place. This we discuss at paragraphs 141 to 154 below.
We have, however, two particular regrets. The first is that we did not have the further assistance of legal argument from counsel instructed by CAFCASS or CAFCASS legal on behalf of the guardian / the children concerned. For this omission the guardian herself, who attended in person and addressed us briefly, is in no sense personally responsible, and we were fortunate in that the scope of the argument advanced to us on behalf of the mother of the children concerned and on behalf of the local authority / adoption agency was, in the event, broad enough to compensate for the absence of specific argument from the children's perspective.
Our second regret is that this was the only case in our list on the point. We say that because whilst raising the issues we are asked to address clearly, this appeal discloses extreme facts. Furthermore, a different constitution of this court (Thorpe and Hughes LJJ) addressed a similar point in Re T (children: placement order) [2008] EWCA Civ 248, [2008] 1 FCR 633 ( Re T), a judgment handed down on 19 March 2008, during the period over which this judgment has been reserved.
Counsel in this appeal thus had no opportunity to address us on what was said by this court in Re T. We regard that as unfortunate. However, for reasons which will, we hope, be apparent, we see no inconsistency between Re T and the instant case, and we devote the final section of this judgment (paragraphs 156 to 160 below) specifically to the former.
We were told by counsel that judges up and down the country were anxious for guidance on the points raised, and in these circumstances we reserved judgement at the conclusion of the argument. We very much regret the delay which, as a result, has occurred between the date of the hearing and the date of this judgment.
The appeal
The mother of two children, born respectively in June 2000 and September 2001 appeals against placement orders made by His Honour Judge Richards sitting in the county court on 12 October 2007. As this is a case to which reporting restrictions apply, and as the two children have identical initials, we shall identify them for the purposes of this judgment as D, a girl, who is the elder, and her full brother S, who is the younger. Their mother we shall call SB and their father RP. We shall describe the other players in the case either by initials or by reference to their respective roles.
The facts
SB, who is now 24, has altogether had five children. D is the eldest, followed by S. We have already stated when they were born. In August 2002, SB gave birth to C, and a little over a year later, she gave birth to K. In September 2006, SB gave birth to L. RP is the father of D, S and C, He is not the father of either K or L.
SB and RP had begun their relationship in 1998, when SB was 15 or thereabouts. She appears to have cohabited with RP from about December 1999, but in December 2003 they separated when SB left their accommodation. All four of the children then born remained in RP's care. He clearly found the task of looking after them beyond him, and his difficulties culminated on 7 October 2004, when he assaulted S, and all four children were accommodated by the local authority, initially on an emergency basis.
In December 2004, the same local authority issued applications for care orders in relation to all four children, which were made in the county court on 16 November 2005.
On 7 September 2005, prior to the making of the care orders, the local adoption and permanence panel (APP) considered and accepted the local authority's plan – as at that date – that all four children should be adopted. It recommended that C and K should be placed together, and on 3 January 2006, those two children were freed for adoption under section 18 of the Adoption Act 1976 (the 1976 Act) the statute which applied to their cases. C and K have since been adopted by a couple who are not related to any family members, and the point is made that those adopters – contrary to expectation and the fact that inter-sibling contact between all four children was a part of the care plan for each child —have not agreed to any contact continuing between C and K and the other children.
L was also the subject of care proceedings after his birth in September 2006. However, he has remained in his mother's care, albeit currently under a supervision order in favour of the local authority. It is recognised by the local authority – a recognition warmly endorsed by the judge —that SB has done a great deal to turn her life around, and there is no question, as we understand it, of L being removed from his mother's care. Equally, however, there is no question of SB, or their father, resuming the care of D and S.
Both D and S are seriously damaged children. We do not think it necessary, for the purposes of this judgment, to go into the precise detail of why D and S are so damaged, save to say that until they were removed from their parents' care, it is plain that neither had received any, or any adequate, parenting. They had lived chaotic and unstructured lives, to the point that S was described as “feral” by Dr FH, one of the psychologists called in to advise in the case.
D and S has each had a series of placements since they were initially accommodated on 7 October 2004. On the following day, S was moved to another foster placement as his first carer found his extremely aggressive and disturbed behaviour impossible to manage. On 11 October 2004, D was moved from the emergency placement to what was intended to be a long term foster placement, where S joined her on 18 October 2004. However, the children complained about the foster carers' allegedly physical chastisement of S, and this complaint led to a further move on 29 April 2005, and the retirement of the foster carers concerned.
On 29 April 2005, S went to live with specialist local authority foster carers and was joined at that placement by D. In September 2005, however, the APP acknowledged that further assessment and therapeutic work would be necessary with both S and D before a determination could be made as to whether or not their needs could be met by a placement together, or whether they needed to be placed separately.
On 14 February 2006, S left the specialist local authority placement as the consensus between his carers and the local authority's social workers was that both children's individual needs could be better met if they were in separate placements. In addition, S's carers were unable to cope with his behaviour. S thus moved to his current placement with a single carer who is able to devote all her time to meeting his needs. D has remained in the specialist placement identified in the preceding paragraph.
In July 2006, the APP recommended...
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A Local Authority v X (The Mother) (First Respondent) Y (The Child) (by his Guardian, G) (Second Respondent) Z (The Father) (Third Respondent) P and Q (Foster Carers) (First and Second Interveners) U (Maternal Uncle) (Third Intervener)
...for making a placement order and dispensing with parental consent. In relation to dispensing with consent, Wall LJ said in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at Paragraph 126:— “Section 52(1) is concerned with adoption – the making of either a p......
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G-F (Children)
...any reference to the principal case on the approach to be taken to dispensing with parental consent, namely the decision of Re P [2008] EWCA Civ 535, decided in 2008. Mrs Haynes therefore says that it must be questionable that the judge applied sufficient care to the decision that he was ma......
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...have been more profound had he had the advantage of the decision of this court relating to welfare under the 2002 Act in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at paragraphs 113 to 117. 188 All that said, however, and whilst I remain of the view tha......
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CM v Blackburn with Darwen Borough Council [1] M (A Child) [2] (by her Children's Guardian) and Another
...when that was not the judge's evaluation or decision. 15 Judge Singleton was bound by the decision of this court in Re P (Children) (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625 at [137] in which the idea of dual planning received guarded support in the followi......
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Table of Cases
...to be joined as a Party), Re [2001] 1 FLR 781, [2001] 3 FCR 279, [2001] Fam Law 338, FD 43 P (Placement Orders: Parental Consent), Re [2008] EWCA Civ 535, [2008] 2 FLR 625, [2008] 2 FCR 185, [2008] All ER (D) 265 (May) 73, 91, 97 P and B v Z; sub nom F, M (Children) (Thai Surrogacy: Endurin......
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Dispensing with Parental Consent
...The interpretation and significance of ‘requires’ in ACA 2002, s 52(1)(b) was considered in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535. Wall LJ reviewed the statutory provisions of ACA 2002, ss 1 and 52 and 74 Adoption Law: A Practical Guide the implications of European C......
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Post-placement and Post-adoption Contact
...to the court to determine the questions of contact and in particular between siblings. See Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535 at [132]–[133] and [147]– [150], where the Court of Appeal in relation to the circumstances in the case also went on to state that ‘the pl......