APPLICATIONS FOR LEAVE TO APPLY TO REVOKE A PLACEMENT ORDER & TO OPPOSE AN ADOPTION ORDER

This short article was originally written as a result of an advice written for public funding purposes.  Public funding was refused by the Legal Services Commission who raised a number of difficulties and required huge amounts of information in respect of the application, which I believed was the result of a fundamental misunderstanding of the difference between the permission stage and the substantive application.  The LSC seemed also to be under the misapprehension that the mother could defend the adoption application itself.  However, it is no doubt going to be standard practice for the LSC to scrutinize these applications with great care and family lawyers need to be aware of the sort of detail which may be required.

The LSC required, amongst other things:

• Copies of relevant correspondence, in particular confirming that a request to return the child to mother with supporting information about her change in circumstances had been made in writing & the reasons for refusal (in writing from the local authority) & the changes the local authority considered the mother to need to make before the child could be returned to her;
• Full details of the reasons why care proceedings were brought in the first place, the reasons for the care order, full reasons why the local authority would not support the return of the child;
• Full details of the change in circumstances relied on;
• Details of the previous drug abused alleged and exactly how that had been addressed by the mother;
• Full details in relation to a subsequent child born to the mother & of any social services involvement with that child;
• Details about the cessation of any communication or contact between the mother and the child's father.

It was my view that the LSC attitude to the application for funding was unreasonable.  However, the recently reported case of Warwickshire County Council v M [2007] EWCA Civ 1084 is not going to make things easier for would be applicants who wish to challenge adoption applications or apply for permission to apply for a revocation of a placement order. 

It is difficult to see from this case (albeit the decision was obviously based on the facts of the particular case) how an application for permission to revoke is ever going to meet the high standard of ‘arguable case' which Wilson LJ has prescribed in Warwickshire.

Legal summary

a) Once a placement order is made, the care order falls into abeyance and is effectively stayed. Therefore there is no possibility of making an application to discharge the care order.

b) Once a placement order is made, the local authority acquire parental responsibility under the placement order and are authorized to place the child for adoption without any further court scrutiny. The next opportunity for the court to consider the child's future, without intervening application, is when an application for adoption is made. In order to oppose such an application, a parent has to seek the permission of the court to do so and can only do so before the child is placed for adoption.

c) The Adoption & Children Act 2002 provides a two stage process for an application to revoke a placement order. In the first place, the applicant must seek permission from the court to make the application to revoke. The court must be satisfied that there has been change in circumstances before such permission is granted.

d) The case of Re P (A Child) (2007) EWCA Civ 616 concerned an application for permission to oppose an adoption application. Clearly, if the court is not satisfied as to a change in circumstances, permission will be refused. In that case, the Court of Appeal also considered the meaning of ‘change in circumstances'. The court held that no gloss should be put by the court on the statute. Parliament had deliberately not added any qualification or interpretation. They added, however, "The change in circumstances since the placement order was made must, self-evidently, and as a matter of statutory construction, relate to the grant of leave. It must equally be of a nature and degree sufficient, on the facts of the particular case, to open the door to the exercise of judicial discretion to permit the parents to defend the adoption proceedings'. In particular, the court rejected any suggestion that the word ‘significant' should be read into the statute as this would put the test too high. I note that the Funding Code guidance published on the LSC website has imported the word ‘significant'. It seems to the Court of Appeal that this is not the correct legal test. As the court added: "We do, however, take the view that the test should not be set too high, because, as this case demonstrates, parents ... should not be discouraged either from bettering themselves or from seeking to prevent the adoption of their child, by the imposition of a test which is unachievable. We therefore take the view that whether or not there has been a relevant change of circumstances must be a matter of fact to be decided by the good sense and sound judgment of the tribunal hearing the application."

e) There is now some guidance from Warwickshire v M to the effect that whilst in an application for permission to oppose an adoption application the welfare checklist would apply both to the application for leave and to the substantive application, the same is not the case with respect to applications for permission to apply to revoke a placement order. In Re P, the court held, in relation to applications for permission to oppose adoption applications, the paramount consideration of the court is the child's welfare throughout his life. In that case also, the court held that in relation to permission to oppose adoption, the court was not bound to conduct a full enquiry and receive oral evidence. The manner in which the court will decide the application and the evidence it seeks is a matter for the court to decide at the first hearing.

f) What is also clear from the case of Re P, and perhaps obvious, is the difficulty which a parent will face in obtaining leave to oppose an adoption application once a child has been placed for adoption.

g) An adoption application will not be made by the local authority but by the prospective adopter. It cannot be made before the child has been placed with the adopters for a period of 13 weeks but may be made much later than that. A parent can then only challenge the situation by making an application for permission to oppose the application once it has been made. The longer the child is with the prospective adopter the less likely the parent is to be granted permission.

h) From the Warwickshire case come a number of important points in relation to applications for permission to apply to revoke a placement order:

i) There is nothing in theory to preclude a local authority from placing a child for adoption pursuant to a placement order even if an application for permission to revoke is pending. However, it will normally be good practice for a local authority either to agree not to place the child until its disposal or at least agree to give notice of, say, 14 days of any proposed placement.

ii) The welfare of the child is not the court's paramount consideration at the permission stage (although the court did express some bewilderment as to why it should apply in relation to permission to oppose adoption when it did not apply to any other consideration by the court of the facility to participate in proceedings relating to a child). Welfare is, of course, a relevant factor in the balancing exercise but not the paramount one, and it will generally be the case that if the applicant has a real prospect of success the child's welfare will best be served by granting the permission.

iii) In exercising its discretion as to whether to grant leave to make the application, the court should have regard to the applicant's prospect of success in the proposed proceedings. Wilson LJ suggests that the court should consider whether the applicant has a real prospect of success, importing the words from the CPR 52(3)(6). In referring to other cases where the court considers leave applications such as under s. 10(8) & s 34 Wilson LJ refers to Re M (Care: Contact: Grandmother's Application for Leave) [1995] 2 FLR 86 as being an authority suggesting that the court should consider the prospects of success or whether there is a good arguable case. Unfortunately he does not refer to Re J (Leave to Issue Application for Residence Order) [2003] 1 FLR 114 in which Thorpe LJ held that Re M had served a valuable purpose in its day and in relation to s 34 applications but it should not be applied when s. 10(9) is relevant. Although he does not expressly say that the good arguable test case should not be considered in relation to s 34, it is, in my view, implicit that this test may be too high even in the context of s 34, albeit that it must be right for the courts to exclude from the litigation exercise applications which are plainly hopeless.

iv) The mother's application for permission was refused by the Court of Appeal even though there were reasons to consider that there might have been a change in circumstances. The court felt that although the revocation itself might not cause undue delay it would effectively open the door to a further round of assessment and litigation, inherent in which would be protracted further delay for the children. The court did not consider it likely that the mother would be able to show the court that she had a capacity now that she did not have some 16 months before when the care orders were first made. This was despite some fairly powerful pointers to an improvement in the mother's circumstances which were backed up by testing (for example, that she had ceased using crack cocaine and alcohol).

2) In another case decided by Wilson LJ - S-H (A Child) [2008] EWCA Civ 493 he allowed an appeal against the refusal to grant a mother permission to apply for leave to revoke a placement order. The circumstances were unusual : a child had been made the subject of a care order because of concerns about failure to thrive. The child failed to gain weight in foster care. This led to disagreements within the professional / expert team about the way forward although they all were of the view that the child could not be placed back with the mother because of other concerns about psychological harm (the mother conceded that there were significant attachment difficulties). At the time of the mother's application, the plan was to place the child in a different foster home to see if he would begin to gain weight appropriately. Any adoption plans were put on hold until the prognosis / explanation was more clear. The local authority also planned to commission further expert opinion on the possible causes of the child's failure to thrive which had been found & conceded to be purely psycho-social. Wilson LJ held that it will occasionally be proper for the court to grant a parent leave to apply to revoke a placement order notwithstanding the absence of any real prospect that the court would find it to be in the interests of the child to return to live with the parent. The Judge had adopted the approach of asking himself whether the local authority was failing to act as a reasonable parent? What could they be doing that they are not doing to promote his interests? This was the wrong question. The Judge should have considered whether in all the circumstances, including the mother's prospect of success in securing revocation of the placement order and the child's interest, leave should be given. Wilson LJ that the mother did have a real prospect of success. The shelving of the plan for the child to be adopted meant that the necessary foundation - that the child is broadly speaking in a condition to be adopted & is ready to be adopted (even though in some cases the court has to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement or even of failure to find one at all - was not established. It was clearly in the child's interests for leave to be given so that any apparent change in his current suitability for adoption could be examined by the court.

3) Wilson LJ also referred to a similar conclusion having been reached by Hughes & Thorpe LJJ in Re T (Children: Placement Order) [2008] EWCA 542. In that case two small boys were so damaged that, although if achievable, adoption was the best solution for them, it was accepted to be necessary for them to move into a specialist therapeutic foster home for at least six months before their placement for adoption could realistically be considered. The court set aside placement orders made in these circumstances. Having accepted that the prospect that a child would prove difficult to place for adoption was no reason for declining to make a placement order, Hughes LJ said: "..the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were at present, not suitable for placement for adoption. It would not be know whether they ever would be until a particular exercise had been carried out in the form of the specialized foster placement over several months. And as the Guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys' best interests, because their needs could better be met by the kind of substitute family found only in long term fostering. The generalized consideration that adoption would ideally be best does not, on these unusual facts, lead automatically to the conclusion that it was yet possible to say whether it was in the best interests of these boys. In those circumstances I am persuaded that the finding that adoption was in their best interests, and thus that a placement order should follow, was premature".

4) In Re F (A Child) [2008] EWCA Civ 439 the Court of Appeal considered the effect of human rights on the interpretation of s 24 of the Adoption & Children Act 1989. The court declined to allow the appeal holding that a local authority had not acted unlawfully in placing a child for adoption when an application for leave to apply to revoke a placement order had been made but not yet heard by the court.

Wall LJ & Wilson LJ dismissed the appeal (Thorpe LJ dissenting) on the basis that the statutory wording was clear and unambiguous. However, they described the actions of the local authority (East Sussex County Council) in the case as a "travesty of good practice which the 2002 Act happens to permit" and "disgraceful" and "the worst I have ever encountered in a career now spanning nearly 40 years". They set out their views which have the approval of the President as to the practice to be followed by local authorities in future and suggest that those who do not observe the good practice recommended will be susceptible to judicial review.

The court recommended that those representing applicants for leave should invite local authorities to give an undertaking that they will take no steps to place (the child) with prospective adopters pending the hearing of the application & if such an undertaking is not given to apply without notice in the first instance to the county court for an order in those terms restraining placement.

Wall & Wilson LJJ concluded without hesitation that the county court has jurisdiction to grant injunctions restraining placement as a temporary, holding measure, until both sides could be before the court. The court could either then give directions for a swift hearing, or resolve the matter summarily.

Local authorities who become aware of applications for leave to apply should have reply promptly providing information as to the state of preparation of its plans and likely timescale for implementation and should themselves apply to the court, on short notice, for leave to place the child for adoption under section 24(5) of the 2002 Act.

25.6.08

Jacqui Gilliatt

4 Brick Court

Chambers of Janet Mitchell

Temple London EC4Y 9AD

Tel: 020 7832 3200

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