The decision in Re AW (A Child : Leave to revoke Placement Order : Leave to oppose adoption) 2013 and why it made me blink incessantly whilst trying to figure it out.
It is a curious thing with English law, that we can end up with judgments and reported cases that are available to us AFTER big game-changers, but predate the actual game-changing case. So although we have Re AW now, and we have already seen Re BS, the parties and the Court in Re AW were unaware of Re BS.
(Having said that, the Judge actually did an admirable job of balancing the competing factors, and it might actually comply with Re BS, despite having been decided in blissful unawareness of it)
Here’s the bit that made me blink
Are you also blinking? Read it again
The local authority’s application for discharge, whilst simultaneously arguing for continuation of the placement order,
It appears that what happened was that a care order and placement order had been made – the parents had not attended the final hearing because the mother was pregnant with another child and was trying to conceal that from the Local Authority.
They then appealed the decision, and applied to revoke the Placement order three times, unsuccessfully.
The child was placed with adopters and there seem to have been some threats of judicial review. The parents had indicated their intention to apply again to discharge the care order / revoke the placement order, and the placement occurred against that backdrop. A letter of claim had been sent which clearly intimated a judicial review was in the offing. That would have been much more slow to resolve than in the family courts (yes, some things are slower than family court justice)
The Local Authority had thought pragmatically about a solution, and come up with the idea that making an application themselves to revoke the Placement Order to get it before the Court, whilst simultaneously making it plain that they did not want the Court to grant their application was a device which might work.
Those representing the adopters were, understandably pretty aghast at that approach and considered it to be misconceived, and in effect allowing the parents to run a case for revocation without meeting the two-stage test for leave to apply to revoke set out in the case law.
Has there been a change of circs, does that change justify relooking at the care plan approved by the Court? (The LA don’t have to meet that test, so the parents could effectively be inviting the Court to grant the LA’s application, and the issue of leave wouldn’t arise)
Thankfully, the mess was resolved by the prospective adopters getting their adoption application in, which meant that the Court could actually litigate the matter by way of the parents applying for leave to oppose the adoption
Last week, on 7th August 2013, Solicitors representing Mr and Mrs A issued an application for adoption. That fact enabled Ms Fottrell to go on to submit that the parents might achieve their central aim of securing a substantive hearing by making an application for leave to oppose the making of an adoption order. No party disagreed. Ms Fottrell suggested it was the only remedy in the current factual circumstances which does not offend the letter and spirit of the statute. And whilst that contention is almost certainly correct, it has to be said that until proceedings for adoption were begun there was no other available legal vehicle so as to enable the court to be seized of the issues.
The remainder of the judgment deals with the evidence heard over a three day hearing (!) on those issues and the balancing exercise that the Judge conducted to reach the decision to refuse the applications.
I suspect that the balancing exercise survives Re BS unscathed, it is much more thorough and comprehensive than one sometimes sees, and the Judge very much had in mind that adoption was a last resort and why.