T (A Child) (Early Permanence Placement)
| Jurisdiction | England & Wales |
| Judge | Sir James Munby,Lady Justice Black,Lord Justice Bean |
| Judgment Date | 24 September 2015 |
| Neutral Citation | [2015] EWCA Civ 983 |
| Docket Number | Case No: B4/2015/1928 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 September 2015 |
[2015] EWCA Civ 983
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY COURT sitting at LEEDS
HER HONOUR JUDGE TROY
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby President of the Family Division
Lady Justice Black
and
Lord Justice Bean
Case No: B4/2015/1928
Mr Will Tyler QC and Miss Victoria James (instructed by the local authority) for the local authority
Mr Lewis Donnelly (instructed by Jones Myers) for the father
Miss Sara Anning (appearing pro bono instructed by Graham Stowe Bateson acting pro bono) for the paternal grandparents
Miss Pamela Scriven QC and Miss Emily James (appearing pro bono instructed by Simpson Millar) for the prospective adoptive parents
Miss Deirdre Fottrell QC and Mr Martin Downs (instructed by Ison Harrison) for T (by his children's guardian)
Messrs Sugaré & Co filed a skeleton argument on behalf of the mother
Hearing date: 30 July 2015
Sir James Munby, President of the Family Division:
This is an appeal from a judgment and order of Her Honour Judge Troy on 22 May 2015. The judge was sitting in the Family Court at Leeds hearing care proceedings in relation to a little boy, T.
The facts
The facts can be stated quite shortly. T was born on 20 November 2014. T's parents signed an agreement in accordance with section 20 of the Children Act 1989 the next day, 21 November 2014, and T was placed the same day with a married couple I shall refer to as Mr and Mrs X.
Mr and Mrs X had been approved as adopters by the local authority on 14 November 2014. Shortly before T's birth, on 17 November 2014, they were invited by the local authority, and agreed, to care for T, on his birth, as foster carers with a view to adopting him if adoption was required: what is known as an early permanence placement. T, as I have said, was placed with them on 21 November 2014. The local authority commenced care proceedings, with a plan for adoption, on 3 December 2014. Mr and Mrs X signed an early permanency placement agreement the same day. On 18 December 2014 an interim care order was made. It remains in place. T remains with Mr and Mrs X.
On 29 January 2015 T's paternity was established by DNA testing. At an adjourned case management hearing the next day, 30 January 2015, the father indicated that he did not wish to be assessed as a carer for T, but he put his parents forward for assessment. An initial viability assessment of the paternal grandparents was completed on 13 February 2015. It was positive. The full kinship assessment of the paternal grandparents was completed on 1 May 2015. Again, it was positive. Following a professionals' meeting on 8 May 2015, the local authority told Mr and Mrs X that it had abandoned its plan for adoption in favour of a placement with the paternal grandparents under a special guardianship order. This plan is supported by both the mother and the father, who accept that neither of them is able to care for T. The position of T's guardian is that the court does not at present have before it the evidence upon which to make a proper evaluation of what the guardian says are the two realistic options: a family placement with the paternal grandparents or adoption by Mr and Mrs X.
On 20 May 2015 Mr and Mrs X issued an application for leave to apply for an adoption order (see sections 42(4) and 44(4) of the Adoption and Children Act 2002). The application came before Judge Troy on 22 May 201By then the care proceedings had been on foot for a little over 24 weeks. She made two orders. In one she gave Mr and Mrs X leave to apply for an adoption order. In the other she joined them as parties to the care proceedings. In accordance with directions she gave on that occasion, the matter came back before Judge Troy for directions on 1 June 2015. The paternal grandparents indicated their wish to apply for a special guardianship order (their formal application followed on 19 June 2015). Judge Troy joined them as parties to the care proceedings and consolidated the care proceedings and the adoption proceedings. She extended the time limit for the proceedings (see section 32(5) of the 1989 Act) to 34 weeks.
On 22 May 2015 Mr and Mrs X gave the local authority notice in accordance with sections 44(2) and 44(3) of the 2002 Act.
The appeal
At the hearing on 22 May 2015, Judge Troy refused the local authority's application for permission to appeal. On 11 June 2015 she refused the father's application for permission to appeal. The father filed his appellant's notice on 12 June 2015. His grounds of appeal limited his case to an attack on the judge's order joining Mr and Mrs X as parties to the care proceedings. Permission to appeal was given by McFarlane LJ on 3 July 2015. He said:
"Whether the proposed appeal has a reasonable prospect of success or not, the issues raised are likely to arise in other cases and justify consideration at appellate level."
On 21 July 2015 the local authority filed a respondent's notice seeking to challenge the order giving Mr and Mrs X leave to apply for an adoption order.
The father's appeal and the local authority's application for permission to appeal came on for hearing before us on 30 July 2015. We gave the local authority permission to appeal.
The father was represented by Mr Lewis Donnelly, the paternal grandparents by Miss Sara Anning (who, together with her solicitors, was acting pro bono) and the local authority by Mr Will Tyler QC and Miss Victoria James. They made common cause. The mother had filed a skeleton argument supporting the father's position in all respects but, properly conscious of what Lord Neuberger of Abbotsbury MR had said in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras 45–46, asked to be excused from attending the hearing. Mr and Mrs X, represented by Miss Pamela Scriven QC and Miss Emily James (appearing pro bono), and the children's guardian, represented by Miss Deirdre Fottrell QC and Mr Martin Downs, made common cause in opposing both appeals.
Early permanence placement
Before proceeding any further it is appropriate to say something about early permanence placements.
The concept is not new, though it has only recently been put on a secure statutory footing. So far as material, section 22C of the Children Act 1989 provides that:
"(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and –
(a) are considering adoption for C, or
(b) are satisfied that C ought to be placed for adoption but are not authorised under section 9 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.
(9B) Where this subsection applies –
…
(b) the local authority must consider placing C with an individual within subsection (6)(a) [that is, "an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent"], and
(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter."
The key provision is section 22C(9B)(c).
This is supported by statutory guidance issued in July 2014 by the Department for Education, Early permanence placements and approval of prospective adopters as foster carers: Statutory guidance for local authorities and adoption agencies. We were also referred to two sets of guidance issued in June 2013 by Coram and BAAF, Fostering for Adoption: Practice Guidance and Fostering for Adoption: Becoming a Carer.
The Introduction to the Statutory guidance summarises matters as follows:
"1. There may be cases where a local authority identifies that, based on the evidence available and on its assessment of the case, the long term permanence plan for a named child is likely to be adoption. The local authority is likely still to be considering other outcomes for the child, and may still be attempting rehabilitation with family, although this will be thought highly unlikely to succeed, and adoption is the most likely outcome. The local authority will already have considered wider family and friends as potential carers for the child and concluded that they are unlikely to be able to care for the child. It is possible that suitable family members may be identified or come forward after the child has been placed, and the authority will need to consider them should that occur. This is because the local authority has a continuing duty to place the child in the most appropriate placement for that child (see section 22C of the Act).
2. In some cases the ADM [agency decision maker] may have decided that the child's plan should be adoption, but the agency has not yet obtained a placement order or have parental consent to place the child for adoption.
3. A placement made following consideration under section 22C(9B)(c) of the Act (a section 22C(9B)(c) placement) with carers who are both approved prospective adopters and approved foster carers is a fostering placement under the Act and one which may lead to adoption by those foster carers. The advantage of this type of placement is that the child will be placed with foster carers who, subject to a placement order being made, or parental consent, are expected to go on to become the child's adoptive family. Delay in finding a permanent family for young children who have already experienced neglect early on in their lives may have a...
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