As Foster to Adopt placements (where a child is placed with foster carers who are also approved as adopters and might go on to adopt the child if the Court decides to make a Placement Order) become more prevalent, both as a result of the Children and Families Act 2014 and the political drive to have more such placements, this particular case resolves two issues that might be significant in the future.
Or at least, flags up what I’d consider to be the correct answer in law and we await a decision from the High Court or Court of Appeal in the future to definitively confirm it, as this is a case determined by a Circuit Judge and thus not binding on future cases.
[It is very well reasoned though, and I’d be rather surprised if a higher Court were to disagree. ]
Re B (A child :adoption) 2015
Question 1 – when is the child “placed” for adoption?
There are three possible answers generally – when the Match is made (i.e an Adoption Panel agrees that little Richard Starkey can be adopted by Mr and Mrs Ringo), or, when Richard first meets Mr and Mrs Ringo, or when the child moves into the home of prospective adopters when a Placement Order has been made. The Courts spent quite some time wrangling about that, finally deciding in Coventry City Council v O (Adoption)  2 FLR 936 that “placed for adoption” began once Richard begins to live with Mr and Mrs Ringo (in a practical sense, on the first night that he stays with them with no plan for him to be collected by the Local Authority from then on)
But with Foster to Adopt children, the move into the home can come much earlier than the Placement Order. The child is already living with the prospective adopters. Why is this relevant? Well, because “placement” with prospective adopters can limit the parents, who cannot for example make an application to revoke a Placement Order once the child is “placed” with prospective adopters, and have to wait until an Adoption Order application is made by the prospective adopters.
The Judge here, His Honour Judge Booth, confirmed that the child is not “placed with adopters” until the child is in a position to be adopted (a Placement Order made) and the match is approved AND the child is living with the adopters. So in a Foster to Adopt placement, the “placed with adopters” begins as soon as the Adoption Panel and Agency Decision Maker have approved that Mr and Mrs Ringo are to be the adoptive carers of Richard.
- The July 2014 statutory guidance for Early Permanence emphasises that the status of Section 22C(9B(c) placements changes when the court has made a placement order and the ADM has approved the adoptive placement:
“Section 22C(9B)(c) placements are foster placements: the carers must be approved foster carers as well as approved prospective adopters before the child can be placed with them. The carers are entitled to the fostering allowances that the fostering provider would normally pay. When the local authority receives a placement order or parental consent and the ADM has approved the adoptive placement, the section 22C(9B)(c) placement will become an adoptive placement. At that point the carers will become eligible for adoption pay and leave and the fostering allowance ceases”.
- The local authority acting in its role as an adoption agency re-approved Mr and Mrs X as Lancashire County Council adopters on 6th May 2015 and they were linked as B’s prospective adopters at an Adoption Panel on 13th May 2015. The ADM approved the decision of the panel on 22nd May 2015. It was on this date, when the third and final stage identified by Thorpe LJ in Re S was accomplished and therefore B was placed for adoption. To employ Lord Wilson’s language in Coventry v O, 22nd May 2015 was the date when the adoption agency formally allowed B “to continue to live with the applicants in their fresh capacity as prospective adopters”.
- From the time the placement order was made on 31st March 2015 until B was placed for adoption with Mr and Mrs X there was an opportunity for his parents or anybody else to apply for leave to seek revocation of the placement order. That opportunity ended when B was placed for adoption by the decision of the ADM on 22nd May 2015. Such is the effect of section 24 (5)(b) of the Adoption and Children Act 2002. The closure of that opportunity is by operation of law rather than any physical movement of the child.
Thus, the window of opportunity for a parent to apply to revoke the Placement Order is limited to the period between the making of the Placement Order and the Agency Decision Maker (ADM) approving the match. In this case, that was between 31st March and 22nd May. About eight weeks. Bearing in mind that the test for granting leave to apply to revoke a Placement Order is that the parent must show a “change in circumstances” since the Placement Order was made, that’s not much time to bring about such a change.
Question 2 – for the purposes of making an application under the Adoption and Children Act 2002, when does the child start to “have his home” with the prospective adopters?
This is significant because the prospective adopters can’t make their application until the child has been in their home for ten weeks. Does that ten weeks start from the time that the child was “placed” as above? Or from when the child was actually physically living with them? If the latter, then Foster to Adopt carers can technically make their application almost immediately after the match if they so desire.
The Judge ruled that it is the latter. That ten week period can start to run from the moment that Richard begins to live with Mr and Mrs Ringo, and doesn’t have to wait until he is “placed” there. So Foster to Adopt carers can lodge their adoption application seconds after the ADM approves the match and “places” the child, if they so wish.
- The adoption application
- The Adoption and Children Act 2002 sets out a number of adoption gateway requirements in s42 before an adoption order can be made. The relevant section for the purposes of Mr and Mrs X’s application is s.42(2) which states:
(a) the child was placed for adoption with the applicant or applicants by an adoption agency or in pursuance of an order of the High Court, or
(b) the applicant is a parent of the child
the condition is that the child must have had his home with the applicant or, in the case of an application by a couple, with one or both of them at all times during the period of ten weeks preceding the application.”
- B was ‘placed’ for the purposes of adoption on 22nd May 2015. The wording of the statute appears to deliberately avoid the terminology of a child being ‘placed’ when referring to the period of time that a child is required to live with the applicants prior to an application for an adoption order. Instead, the statute requires that the child “must have had his home” with the applicant(s) for 10 weeks preceding the application.
- There is no definition of ‘home’ in the Children Act 1989 or the Adoption and Children Act 2002, however it is clear from the observations of Sheldon J in Re Y (Minors) (Adoption: Jurisdiction)  Fam 136,  1 FLR 152 at 140 and 157 that it has been considered to be a concept incapable of precise definition and that definition should not be attempted beyond the principal features a home should be expected to embody which, by reference to the OED definition, includes a “dwelling-place, house, abode; fixed residence of a family or household”. The Court in that case considered that the issue of whether something amounted to a home “must be a question of fact in any particular case”.
- This was endorsed more recently in the case of ECC v M and Others  EWHC 332 (Fam) where Black J said at para 
“I am entirely in agreement with Sheldon J that it is a question of fact in any particular case whether or not a home has been established here within the meaning of the 2002 Act”.
- My conclusion is that the time spent by B with the Mr and Mrs X amounts to him having had his home with them for the duration of the period he has lived with them. He has resided there continuously since 2nd December 2014 and they undertake all of his caring tasks. I am told that they have attached to him as their potential adoptive son and he has been treated as such within the immediate and wider family and that B identifies them as his primary attachment figures. They have acted as his parents since he was a day old and he has had his home with them since that date.
- There is no restriction in either statute or case law to the effect that the child cannot have their home with the Applicant prior to a placement order or, indeed, prior to his being ‘placed’ with the applicants for the purposes of adoption. For these purposes the clock began ticking in that respect from the moment B was physically placed with them on 2nd December 2014.
- This interpretation is consistent with the spirit of the Act and what it was intended to achieve in relation to adoptive placements prior to adoption orders being applied for. The purpose of the requirements set out in s.42 has been the subject of judicial consideration in Re A (Adoption: Removal)  EWCA Civ 41,  2 FLR 597 when Moore-Bick LJ said at para 106:
“The section … is concerned to ensure that the child has spent sufficient time living with the applicant in a home environment to enable the Court to be satisfied they are sufficiently well-matched for the adoption to be likely to be successful”.
- This was endorsed by Theis J in Re X (Adoption Application: Gateway Requirements)  1 FLR 1281 at para .
- The question of where a child has had his home is a question of fact independent from his legal status within that home.
The very purpose of Foster to Adopt is to ensure that in cases where the Court approve adoption as the plan that there are shorter delays in the adoption order being made, and less moves for the child, so it does make sense that such carers are allowed to take the ten weeks as being the time that the child has been in their care, rather than making them wait for ten weeks after the match is formally approved.
Of course from the other side of the coin, and remembering that a parent needs to show that there has been a Change of Circumstances since the Placement Order was made if they are going to get leave to oppose the adoption order application, realising that there might be a very short window – more likely weeks than months between the Placement Order and adoption order application might make it virtually impossible to effect such change.