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conditions on placement order, what does the Fox say ? (By fox, i mean Court of Appeal)

 

The Court of Appeal in Re A (Children) 2013 grappled with an interesting issue.  In the care proceedings, the Judge was weighing up the needs of the children and reached the conclusion that adoption was in their best interests IF and only IF, the adopters that the LA would find in the future would meet a series of conditions. The Judge then reserved the case to herself for any future applications and made a Placement Order with a series of conditions – if the conditions weren’t met, the placement order couldn’t be exercised.

“2. The court has accepted the list of attributes of prospective adopters for M and K recommended by the court appointed expert psychologist, Mrs Buxton, that as a pre-requisite to placement of the children for adoption, prospective adopters to be suitable must be:

a) two in number;

b) energetic;

c) free from attachment difficulties of their own;

d) experienced carers;

e) fully appraised of the children’s background, attachment difficulties and placement needs for the duration of their minority and willing to undergo specific training so that they will be able to cope with M in particular;

f) there must be no other children within the home

g) ready, willing and able to promote direct face to face contact with their brothers, B, B and L preferably four times per year but at least a minimum of twice per year.

3. The court was satisfied on the basis of all the evidence before it and on its analysis of the welfare checklist issues that adoption of M and K was proportionate and the most appropriate care plan to promote and safeguard their welfare, save that the care plans are approved and placement orders granted on the basis that the list of attributes set out above is adhered to by the local authority.”

The LA appealed that, on the basis that this was law out of thin air (no such thing as conditional placement orders) and that this was in complete breach of the separation that Parliament had set up between Courts (decide the facts, make the decision about applications and orders) and LA’s (deliver the orders on the ground and make day to day decisions)

The Court of Appeal having forgotten / ignored that principle entirely in Neath Port Talbot, found it again down the back of the sofa.

http://www.bailii.org/ew/cases/EWCA/Civ/2013/1611.html

    1. All parties accept Mr Rowley’s description of the statutory boundary that exists between the role of a court and that of a local authority upon the making of an order authorising placement for adoption under ACA 2002, s 21. The statutory structure established in relation to placement for adoption orders is, in this respect, on all fours with that which applies to final care orders under CA 1989, s 31. The House of Lords decision, and in particular Lord Nichols description of the inability of a court to impose conditions upon a final care order, in Re: S; Re: W (Care Order: Care Plan), applies in like manner with respect to an order under ACA 2002, s 21 authorising placement for adoption. No party before this court sought to argue to the contrary and there cannot be any ground for drawing a distinction between the two statutory schemes in this respect.

 

    1. In the absence of any express statutory provision to the contrary, Parliament must be taken to have intended that the ‘cardinal principle’ identified in Re: S; Re: W would apply to the making of a placement for adoption order. The wording of the key provision in ACA 2002, s 21(1) could not be more plain:

 

‘A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority‘ [emphasis added].

The fact that in almost all cases the court will be making a final care order under CA 1989, s 31 at the same time as making a placement for adoption order, and there is plainly no power to add conditions to a care order, only goes to underline the position.

    1. When a placement for adoption order is made, the family court retains only limited powers arising from the court’s jurisdiction to:

 

a) vary or revoke the placement order [ACA 2002, ss 23 and 24];

b) make orders for contact [ACA 2002, s 26].

The position is as described by Wilson LJ in Re A (A Child) (Adoption) [2007] EWCA Civ 1383 (set out at para 20 above); the only opportunity that a family court has to consider the merits of a particular person to adopt a child who is the subject of a placement for adoption order occurs when that person applies for an adoption order.

    1. In the present case the judge was clearly driven to take the unusual step of setting out, in express terms, the attributes that she considered to be essential if adoption were to be beneficial for each of these two boys. The judge was obviously anxious that the past performance of the local authority indicated that, if left to its own devices, the necessary mix of attributes might be watered down or compromised for the sake of achieving an adoptive placement. As a child focussed and well motivated action, the judge’s stance cannot be faulted. The question is whether her action was legally permissible, or whether it crossed the boundary that is so clearly drawn between the role of the court and that of a local authority under a placement for adoption order.

 

    1. The debate before this court has focussed upon what label might best describe the judge’s actions in seeking to maintain the local authority’s search for adopters to those who meet the attributes on the ‘shopping list’. The local authority categorise the judge’s stipulations as ‘conditions’; Miss Heaton describes them as a transparent ‘invitation’ to the local authority; and Mr Weston says that they are no more than a ‘recording’ in the court order of the shopping list of ‘requirements’. To my mind these proffered labels are matters of semantics. There is no magic in whether or not the judge’s requirements are ‘conditions’; the word ‘condition’ has no legal status in this context. What matters is the substance of the structure that the judge sought to deploy in order to achieve what she saw as necessary to meet the needs of these children. In terms of the substance of that structure I am in no doubt that the judge’s order in this case, together with the stipulations in her judgment, fall well beyond the line that divides the role of the court and the role of a local authority under a placement for adoption order. That conclusion is established by the following aspects of the judgment and court order:

 

a) the judge’s conclusions at paragraphs 7.13-7.16 and 7.18 (set out at paragraphs 10 and 11 above) hold that only an adoptive placement that meets each of the ‘shopping list’ requirements will be in the welfare interests of each of the boys;

b) the conclusion at paragraph 7.30 in terms that ‘if the right adopters cannot be found, adoption is not in the interests of these children and should not take place’;

c) in ‘recording’ number 2 in the court order the ‘shopping list’ attributes were described as a ‘pre-requisite’ to the placement which ‘must’ be met;

d) recording number 3 states that the care plans are approved and the placement orders granted ‘on the basis that the list of attributes set out above is adhered to by the local authority’.

    1. The judge’s decision to reserve all future hearings to herself is not, looked at on its own, a matter of concern. On the contrary, judges are encouraged to ensure judicial continuity in children cases if at all possible. However, when set against the other matters which, as I have held, were beyond the judge’s jurisdiction, the decision to reserve the case only goes to add to the establishment of a role for the judge in this case which amounted to overseeing the implementation of the care plan in a manner which is impermissible.

 

    1. The matters raised in this appeal are not academic. Miss Heaton has confirmed that if the mother were not satisfied with prospective adopters chosen by the local authority, she would seek to bring the matter back to court by applying for leave to revoke the placement orders (under ACA 2002, s 24) and/or issuing judicial review proceedings. Indeed, this court was told that the mother has already issued an application under s 24(2) which is now due to come before HHJ Kushner for determination.

 

  1. In all the circumstances, the local authority has made good its appeal and, if the placement orders are to survive this appeal hearing, I would allow the appeal, strike out recordings 2 and 3 from the court order and declare, through this judgment, that the placement orders are to stand as unencumbered orders in the standard terms of ACA 2002, s 21.

 

Hooray say the local authority, wiping their collective brows with a polka dot handkerchief.

But stop, mother had anticipated this, and cross-appealed on the basis that if the conditions didn’t stand, the Placement Orders should be set aside – the “nothing else will do” test not having been met

 

2. The Cross Appeal: ‘What is a judge to do?’

    1. On more than one occasion during her submissions, Miss Heaton gave voice to a question that is likely to have been at the forefront of HHJ Kushner’s mind as she contemplated how best to proceed within the formal structure of ACA 2002 to produce an outcome which met the needs of these two boys as she so plainly saw them. That question was ‘what is a judge to do?’ in circumstances where she is satisfied that the welfare of a child only requires adoption if an adoptive placement can be found which meets a number of specific attributes, but, if those attributes are not present, the child’s welfare would not be best served by adoption. The judge chose a course which, as I have held, was not, as a matter of jurisdiction, open to the court. My conclusion therefore begs a repetition of the question, ‘what, then, is a judge to do?’.

 

    1. The answer to the question is, in my view, plain and straightforward. It is to be found in ACA 2002, s 52(1):

 

‘The court cannot dispense with the consent of any parent or guardian of a child to the child being placed for adoption … unless the court is satisfied that … the welfare of the child requires the consent to be dispensed with.’ [emphasis added]

    1. The judgment of Wall LJ in Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535; [2008] 2 FLR 625 set out in clear terms how the word ‘requires’ in s 52(1) is to be applied. The passage in Re P is well known and there is no need to repeat it here. The question, after applying the life-long focus of the welfare provisions in ACA 2002, s 1, is whether what is ‘required’ is adoption, as opposed to something short of adoption. The interpretation of s 52 in Re P was expressly endorsed by the Supreme Court in Re B (A Child) [2013] UKSC 33 and given general application in the judgments of the court where the need for a proportionate justification for adoption was underlined by the use of phrases such as “nothing else will do”, “a very extreme thing” and “a last resort”.

 

    1. As I have already held, it was not open to the court to seek to limit or exert direct influence over the choice of prospective adopters under a placement for adoption order. On that basis and on the express findings of the judge it was simply not open to the court in the present case to go on to conclude that the welfare of either of these two boys required adoption as opposed to something short of adoption; it was not possible to hold that ‘nothing else will do’. The judge was expressly contemplating that long-term fostering would ‘do’ and, indeed, would only be displaced as the better option for the boys if a ‘shopping list’ compliant adoptive home could be found. In the absence of a power to influence and control the local authority’s role under a placement for adoption order, the test in ACA 2002, s 52(1), in so far as it relates to a placement order, must be read in the light of s 21(1) with the welfare requirement being evaluated on the basis that the placement is to be ‘with any prospective adopters who may be chosen by the authority’.

 

    1. A court may only make a placement for adoption order if, under ACA 2002, s 21(3), it is satisfied either that each parent or guardian is consenting, or that the parent or guardian’s consent to the child being placed for adoption should be dispensed with under the terms of ACA 2002, s 1 and s 52. Against the test in ACA 2002, s 52(1) and on the findings of the judge, the ground for dispensing with parental consent in this case was simply not established and as a result the court did not have jurisdiction to make placement for adoption orders.

 

    1. I would therefore hold that the cross appeal of the mother succeeds and that the placement for adoption orders made in this case must be set aside with the result that the two boys will now simply be subject to final care orders.

 

  1. The absence of placement for adoption orders will no doubt render more difficult the task of finding prospective adopters for these two children, but the local authority remain able, under the care order, to continue to search for adopters.

 

So, although the LA won on the principle that conditions couldn’t be attached to a Placement Order, it was the most pyhrric of victories, since that persuaded the Court to nuke the Placement Order.

 

Look at that last sentence – it is a masterpiece of understatement.

 

At the moment, we have a national crisis of adopters – far more children need places than there are places for them. Do you honestly think that anyone who is approved as an adopter, who are in high demand and sought after by multiple local authorities for multiple children, are going to commit to a process of matching with children WHEN THE CHILDREN may not be approved for adoption? No way.

Assuming that you get someone nuts enough to do that, what would the process actually involve?

1. The LA revives their application for a Placement Order

2. The mother, the father, the Guardian and Judge all say – we need to see as much detail as possible about the adopters

3. Every inch of that information is pored over, critiqued, nit-picked looking for flaws.

4. If there has been  passage of time in the search, one of the parents will revive their desire to be reconsidered or to put forward a family member

5. The parents may not get public funding (stand-alone Placement Orders aren’t non-means, non-merits public funding, you are at the whim of the Legal Aid Agency)

6. In order to get the Placement Order, the Court will want to be satisfied that these carers ticked all of their criteria

 

All of this being before the child can be placed with the carers identified. How is that sitting with no delay?

 

 

How is this not moving the assessment of adopters and the matching of children with adopters away from qualified professionals and into the Court? How does this square even for a second with the view in the Children and Families Bill on Courts backing the heck out of care planning?  (I know, the Bill isn’t law, but that hasn’t stopped us wholesale adopting the 26 week proposal and ramming that through – why is the other major limb, care planning being firmly back with LAs being utterly ignored?)

I have no problem with the Courts having jurisdiction over this stuff, if Parliament debates it and gives it to them, but not like this. An important decision for any family practitioner – it is another tool in the argument toolkit for fighting a Placement Order, and another obstacle for LA’s.

 

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

7 responses

  1. A decision to be wholeheartedly WELCOMED as the pendulum swings back towards the centre in the mad dash to spirit away children from home to meet targets and deadlines.

    In particular, where the local authority has been REMISS to assist the birth family under Pt III of the Children Act, preferring to split it up instead of keeping it together, thorough judicial analysis is required as the final barrier between hallucinated risk of harm used as the thin edge of the wedge of arbitrary state interference.

    Witness the start of the backlash materialise against Blair’s disastrous streamlining policy to fast-track adoption heralding an end to turning a blind eye to due process by mainly unaccountable Quangos and their agents who all too often usurp innocence from the birth family members, children and their parents.

    I wonder if the prospect of opening the floodgates to class actions by generations of disproportionally and unnecessarily adopted children featured in the final analysis.

  2. I am not a lawyer,being a social worker of 40+ years experience, but I feel that this decision is masterful and re-ignites the whole debate of ‘starred’ Care Orders being also needed in respect of Placement Orders.

    http://www.familylawweek.co.uk/site.aspx?i=ed112997

    When faced with time pressures and diminishing resources it is good news that Courts are placing the interests of children as paramount.

  3. As with the other recent decisions of LJ McFarlane this strikes me as being clear, commonsence and understandable by us non lawyers. It is clear these children need permanency but would need very special carers who would also support considerable contact with birth siblings if they were to have any chance of becoming (in my words) mentally healthy adults who could acheive their psychological, social, educational and economic potential. Many of us who have lived through previous attempts to make adoption the answer for all children who cannot live with their birth parent(s) are aware of the damage that the breakdown of an adoption causes to both the child(ren) and the adopters. In my view the local authority, the senior parents of these children by virtue of the care order, has to provide the resources to act as a ‘good enough’ parent so that hopefully the children can have permanency. There are to many examples from the past (and present?) of adopters being left to flounder, reject and end up being damaged themselves.

  4. Pingback: conditions on placement order, what does the Fox say ? (By fox, i … | Child Adoption Process

  5. In theory here it seems like a modern twist on the all too familiar Welfare Check list, you know that out dated neolithic piece of legislation.

    I do not disagree with the Lower Court Judges directions here at all, it is not what’s best for the Courts, Local Authority et al, and, if the judge found the need to place some form of her own check list onto a placement order, then I would deduce that this would simply affirm the prospective adopters were the correct ones, there would be less of a possibility of a breakdown.

    I refer back to the Re. K [Adoption Breakdown], for those who know that particular case would say the adoptive parents would have welcomed with open arms the legislative approach taken by this Judge.

    Children come in all shapes and sizes, is it not best practice to follow this judge in showing that the children are indeed different, they do not all check the correct box, one size does not fit all.

    One would also go as far as to say that this case should be standard, it would protect children more so in all of this, we have discussed “Nothing Else Will Do” Scenario’s previously, without using HHJ Kushner QC methodology then surely when proposed adopters are allocated without the T’s and C’s then would the Local Authority simply use the Nothing else will do in their selection of prospective adopters, I can hear the gasps of breath with that comment.

    I know that is not the issue in this case as the P/O was set aside but thinking long term I would welcome such approaches by the lower courts in following HHJ Kushner QC’s. i-Checklist even though it was removed on appeal

  6. Such a good move, a judge who challanges what as been accepted for too long where adopting parents have not been given the scrunity that so many birth parents face in a family court.
    It evens the balance between adopters and birth parents.
    If a birth parent has children under a care order (or any order) they have to jump through many hoops to satisfy a court they are worthy to parent their children.
    But an adopted parent has to satisfy no-one, lest of all protect the child from emotional abuse or risk of serious emotional abuse by their (adopted parents) refusal to allow any contact with siblings. (And God forbid the birth parents) Yet this option may be and usually is in the best interests of the child.
    I believe that you give selfless love to a child, which is to give with no strings attached. Too often adopted parents will consider only their welfare when adopting and not that of the child.
    They assume they will ‘own’ something that they hope will enhance their lives, bit like buying a new car. It becomes obvious when on adopting they are the ones who insist on setting the rules or once the child is adopted will slowly remove anything or anyone that they do not want part of their lives, such as meeting contact arrangements with siblings or members of the childs birth family.

  7. The other sad fact about adopting parents, is that too many will automactically look upon the birth parents as having caused all the traumas that the child is or maybe could be suffering in the future.
    I have read the opinions so many times on the many sites containing the psychological stroking between adopters and fosterers.
    It is the same as the adoption and fostering agencies websites which declare how important the new adopting parents are in their bid to rescue badly damaged and desperate children.
    Yet these people have never been in a family court, never researched the many cases of forced adoptions or adoptions and reasons thereof, never researched the often flimsy reasons why a child is up for adoption, never researched the challanges that so many of the poorer parents face and the lack of support offered to them.
    And that is without the fact that social services through negigence or malicious reasons will often present false and misleading cases into courts without fear of prosecution.

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