A quirky little case, considering what happens when an adoptive placement breaks down to the point where all concerned would really like to effectively delete the adoption order.
Re W (2013)
The child had obviously been subject to previous care proceedings, a Placement Order made and in due course an adoption order made. The adoptive placement with Mr and Mrs Y did not work out, and broke down. The child was moved by the Local Authority, with consent of the adoptive parents, to another foster placement and settled well there.
The LA then had the issue of what to do about the child’s legal status. The only people who held parental responsibility for her were the adoptive parents Mr and Mrs Y (by virtue of the adoptive order) and the birth parents no longer had any connection in law to the child.
Mr and Mrs Y did not want to have any contact with the child or any further part in her life, and were in agreement with the Local Authority that the best thing for the child would be for the adoption to be revoked.
Easier said than done. The only criteria for revocation of an adoption order under the Adoption and Children Act 2002 was not applicable here,
(1) Where any child adopted by one natural parent as sole adoptive parent subsequently becomes a legitimated person on the marriage of the natural parents, the court by which the adoption order was made may, on the application of any of the parties concerned, revoke the order.
(2) In relation to an adoption order made by a magistrates’ court, the reference in subsection (1) to the court by which the order was made includes a court acting for the same petty sessions area.
Clearly that wasn’t the reason for the adoption being revoked here, so it didn’t apply.
The case law also didn’t help, as the overwhelming thrust of the case law is that revocation of an adoption order should only be where the order had been made by fraud or mistake – the seminal case being Re B (Adoption : Setting Aside) 1995 1 FLR 1 – where a child was adopted when the adopters believed the child to be Jewish , but was in fact of mixed Catholic and Muslim parentage , causing considerable problems for the child in later life (the adoption had been made in 1959), and the Court determined that there was no jurisdiction to set the order aside.
The LA sought to persuade the Court to use the inherent jurisdiction to revoke the adoption order, on the basis that all parties were in agreement that this would be the best thing for the child.
The Court flagged up a number of issues that would arise from accepting that the Court potentially COULD use the inherent jurisdiction to revoke the adoption order :-
(a) Should the child be separately represented?
(b) Would there need to be an expert assessment of her?
(c) Are the birth parents entitled to be served with the application? What impact might that have on the child?
(d) The general public policy issues of expanding the circumstances in which adoption orders (which are by definition final and definitive orders) might be overturned.
The Court ruled that if it was contemplated that the adoption order might be revoked, that would necessarily revert the position in law to that of a Care Order, and thus the birth parents would re-acquire their parental responsibility, and thus it was inconceivable that such an application could be properly dealt with by the Court without the birth parents being involved.
The Court declined to use the inherent jurisdiction, and made a Care Order, which of course then shares parental responsibility for the child between the Local Authority and Mr and Mrs Y (who were clear that they did not intend to exercise PR)
This is an interesting little nugget at the end, and is, I think the first reported case where 26 weeks has played a part in the decision.
14. Turning then to the Care proceedings, as I say it seems to me to be of the greatest benefit to the child and all concerned that these are now brought to an end. They have been running for getting close to what is now the 26 weeks ‘deadline’ under the new approach. I have read the Care Plan dated 19th March 2013; there is no issue about the Threshold being met. All parties agree that there is to be a Care Order and, in my judgment, the sooner it is made the better. I shall therefore make it today.
Hardly controversial usage of 26 weeks, since everyone was in agreement that a Care Order was the right order.
A bit of a shame that the case did not address the curious little quirk of dealing with adoption breakdowns – all of the duties on the LA to explore options for placement within the family still apply, but of course given that Mr and Mrs Y are the legal parents of the child, and the birth parents are not, those duties apply to the extended family of Mr and Mrs Y.
In reality of course, unless the placement has been long and enduring and then suddenly breaks down, it is pretty unlikely that extended family members of the adopters would seek to care for the child, since there is no blood relationship, but it is a curious little quirk and one I think a lot of people miss.
I think that this decision is correct on the law, but there’s potentially a deficiency in the law which needs to be addressed, where a child is legally bound to parents chosen for her by the State, when those adoptive parents cut their ties with her, but that legal relationship can’t be ended.
That’s a fairly unusual decision – most adopters tend to stay involved and committed to the child even after a breakdown, and I’d draw a distinction between those adoptive parents who continue to play a parental role and those whose involvement in the child’s life ends when the placement breaks down.
I’m never terribly fond of adopters who when the placement break down, have the ‘wash our hands of her’ approach. If you adopt a child, it isn’t like buying a cardie from M&S – you don’t just hand it back and forget the whole thing ever happened. [I don’t know if that’s what happened with Mr and Mrs Y, but the judgment doesn’t read attractively to me]
Given that the child won’t be placed in another adoptive placement (or is unlikely to be), Mr and Mrs Y will legally be her parents for the rest of her life, AND the relationship with her birth parents which was severed in order that she could be placed in a permanent adoptive placement remains severed even though no such placement will be obtained.
As an issue of natural justice, it seems fairer to me for the position in law to be that the adoption order is revoked, and the situation revert to a Care Order, with the child being in foster care, and the birth parents Parental Responsibility being restored. If that means that they challenge the arrangements and apply to discharge the Care Order, then so be it.
That’s NOT how the law is, and this decision was right in law, but I don’t see that this sort of case is miles away from the ‘statutory orphans’ case. There won’t be anyone other than the State exercising PR for this child, and others like her.
If the child had been placed in long-term fostering (which is what will happen to her now), the birth parents would have retained parental responsibility and been entitled to be consulted on major decisions, to participate in Looked After Child reviews, and always had the opportunity to make an application to Court if they were sufficiently concerned about the Local Authority’s care of the child.
In a case like this, where the actual care of the child BECOMES long-term fostering, as a result of circumstances, and there’s nobody exercising PR for the child other than the State, why should that be any different?
I don’t know if anyone in the case floated the issue of a declaration of incompatibility with the Human Rights Act, but that would seem to me the only thing missing from the judgment. If a child who is adopted, has legal ties with birth parents cut, then has the placement breakdown and can’t sever the legal links with adoptive parents who have washed their hands of her, that seems to me a gap in the law that warrants a change.