TL v Coventry City Council

Hearing date: 17 December 2007

Section A: Introduction

The present status of the proposed appellant is that of a foster mother and I will so describe her. At the centre of her proposed appeal is a girl, A, who was born on 9 March 2007 and is thus aged nine months. Coventry City Council (“Coventry”) placed A with the foster mother on 15 March 2007, i.e. when she was six days old. The foster mother has cared for A ever since. When A was placed with her, she accepted that it was a short-term foster placement. Now, however, she wishes to adopt A, in respect of whom on 17 October 2007 the family proceedings court in Coventry made a placement order authorising Coventry to place her for adoption. Coventry do not agree that a continued placement with the foster mother is the optimum adoptive placement for A. On 23 November 2007 His Honour Judge Bellamy in the Coventry County Court refused the foster mother leave to apply for an adoption order in relation to A. Such is the order under challenge in this court.

The foster mother's application for leave needed to be heard extremely quickly; and congratulations are due to the foster mother's solicitors, Rotherham and Co., Coventry, and to the county court in Coventry for enabling such to be achieved. The urgency arose as a result of the fact that on 7 November 2007 Coventry's permanency panel approved the match of A with other proposed adopters and that thereupon Coventry devised a programme for A to be introduced to them on 20 November, to spend time with them on each of the following five days and to move permanently into their home on 26 November 2007. For reasons which I will explain, the foster mother started her search for legal assistance on 12 November; and, when on 20 November she approached Rotherham and Co., they offered her an appointment on a publicly funded basis on the following day. Although on behalf of the foster mother they formally issued the application for leave on 23 November, it was on 22 November that they informed the court of the intended application and persuaded it that, in the light of its extreme urgency, it should be listed for hearing before the judge on the afternoon of 23 November. Also on 22 November Rotherham and Co informed Coventry of the proposed application and of the hearing on the following day; and they gave the same information both to the solicitors who had been representing the natural mother (whom I will describe as “the mother”) in the recently concluded proceedings for a placement order referable to A and also to the CAFCASS officer, Mr Sanga, who had acted as A's Children's Guardian in those proceedings.

It seems clear that the mother was properly made a respondent to the foster mother's application for leave: for the placement order did not eliminate her parental responsibility for A and so she was a necessary respondent to the application pursuant to Rule 86(4)(b)(ii)(bb) and to Rule 23, Table 2, of the Family Procedure (Adoption) Rules 2005, SI 2005/2795. It was also probably correct that A herself, whether acting by Mr Sanga or by another Children's Guardian, was not made an initial respondent to it: for although, by Rule 86(4)(b)(ii)(bb) any person who would be a party to the substantive application if leave to make it were granted should be a respondent to the application for leave, Rule 23, Table 2, provides – so far as relevant – that a child should be a respondent to an application for an adoption order only if a Children and Family Reporter recommends that it is in the best interests of the child to be a party and such recommendation is accepted by the court. So I suppose that one cannot say at the time of issue of the application for leave that the child “would” be a party to the proposed application for an adoption order. The court may however at any stage direct that the child, like any other person, be made a respondent to the application for leave: Rule 86(4)(c).

In the event appearances before the judge at the hearing on 23 November were only by Mr Goodwin of counsel on behalf of the foster mother in support of the application for leave and by Miss Potter of counsel on behalf of Coventry in opposition to it. Nevertheless the judge was informed of the stance in relation to it taken by the mother, as a respondent to it, and, albeit only broadly, taken by Mr Sanga as A's former Children's Guardian, notwithstanding that she was not a respondent to it.

The stance of the mother was communicated to Rotherham and Co. by a letter dated 22 November 2007 from the solicitors who had represented her in the placement proceedings; and the letter was shown to the judge. In it they explained that it would not be possible for them to arrange for the mother's representation at the hearing; that, while she had not consented to the making of a placement order, she had always indicated to Coventry and indeed to the family proceedings court that, were A to be adopted, her preference would be for the foster mother to be the adoptive parent; and that accordingly the mother supported the foster mother's application.

The stance of Mr Sanga was communicated to Mr Pendle at Rotherham and Co. by telephone on 22 November 2007 and was duly relayed to the judge by the production of Mr Pendle's attendance note of the conversation. Mr Sanga told Mr Pendle that it had been the view of both himself and of the solicitor for A in the placement proceedings, as he had sought to make clear to the family proceedings court, that, in the light of A's bond with the foster mother and her other children, it would be better for A to remain with the foster mother than for her to be moved to another adoptive family; that he did not consider that Coventry's objections to the foster mother's candidacy for adoption held water; that, for example, the mother was aware of the identity of the foster mother and the location of her home and yet had never done anything to disrupt it; that he could not see the relevance of the local authority's concern that the foster mother's household was “very busy”; and that accordingly he supported the foster mother's application for leave.

Although he declined to grant the foster mother permission to appeal to this court from his refusal of leave, the judge properly indicated that she should be granted a short window of time in which to approach this court prior to any removal of A from her. His indication precipitated a pragmatic agreement between the foster mother and Coventry, by counsel, which enabled the foster mother to file an Appellant's Notice with, again, admirable celerity. The notice led to an immediate direction on my part that the foster mother's application for permission should be listed for hearing urgently on notice not only to the local authority and to the mother but also to Mr Sanga and on the basis that, were permission granted, the substantive appeal would follow forthwith. Thus it is that, at this hearing, we have had the benefit not only of attendance by leading and junior counsel for the foster mother and for Coventry but also junior counsel for the mother and for A by Mr Sanga as her Children's Guardian. In effect, at my invitation, A, by Mr Sanga, is an intervener in the proceedings in this court. As before the judge, so before this court: the mother and Mr Sanga support the foster mother's proposed appeal.

Section 42 of the Adoption and Children Act 2002 (“the Act”) provides as follows:

“(1) An application for an adoption order may not be made unless –

(a) if subsection (2) applies, the condition in that subsection is met,

(b) if that subsection does not apply, the condition in whichever is applicable of subsections (3) to (5) applies.

…

(4) If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.

…

(6) But subsections (4) and (5) do not prevent an application being made if the court gives leave to make it.”

Thus, in that A had had her home with the foster mother for only eight months, the foster mother required leave to apply for an adoption order referable to her by virtue of s.42(4) and (6).

It is convenient at this stage to notice a further, temporal brake on the foster mother's ability to apply for an adoption order even were leave to be granted to her to make it. The brake arises under s.44 of the Act, which provides as follows:

“(1) This section applies where persons (referred to in this section as 'proposed adopters') wish to adopt a child who is not placed for adoption with them by an adoption...