Guidance from the Court of Appeal to Local Authorities in a situation where the Court make a Care Order and Placement Order and the parents seek to appeal.
https://caselaw.nationalarchives.gov.uk/ewca/civ/2024/837
W & Ors (Implementation of Adoption Plan Pending Appeal)
[2024] EWCA Civ 837
In this case, the Court at first instance made Care Order and Placement Orders for four children. The parents, and grandparents all made it clear to the Local Authority that they were going to seek to lodge an appeal.
The father’s lawyers obtained funding for their appeal and notified the parties including the LA that an appeal was being lodged. Father’s solicitors kept everyone informed of progress and that an application for a stay was also being sought from the Court of Appeal.
The father’s lawyers served everyone with the notice from the Court of Appeal on 10th May. On 14th May the LA notified the father’s solicitors that it was intended to hold the farewell session of contact as no stay had been granted.
Meanwhile, there were various email exchanges between the father’s solicitor and the Civil Appeals Office concerning difficulties with the documentation which needed to be resolved before the application for permission could be referred to a judge. It is unnecessary to set these out in detail, save to note that the solicitor was informed on or around 15 May that the initial bundles filed had been rejected because they did not include sealed copies of the judge’s orders. As a result, the solicitor asked for an extension of time for complying with the directions. An extension was granted until 22 May and subsequently extended to 29 May..
After receiving notice on 15 May that the bundles had been rejected, the father’s solicitor informed the other parties, including the local authority, that the bundles had been rejected because they did not include sealed copies of the orders. He noted that the draft orders were on the portal awaiting the judge’s approval and had been there since 20 April. He asked the local authority solicitor to chase the matter for the judge’s approval. He added that he had applied for an extension of time for filing the bundles.
It seems that this correspondence setting out that the Court of Appeal had rejected the BUNDLES in the form they’d been lodge in, was misinterpreted by the LA to mean that the APPEAL itself had been rejected, which was not the case.
The LA went ahead with the farewell contact and matched the children with prospective adopters.
When the case came before the Court of Appeal, the Local Authority apologised for their actions and the Court of Appeal gave broader guidance
At the appeal hearing, Ms Thomas KC accepted that the local authority had been wrong to proceed with the farewell visit knowing that an application for permission to appeal against the placement order was pending. She explained that, having been informed that the Court of Appeal Office had rejected the bundles filed on behalf of the father, the local authority had mistakenly believed that the application for permission to appeal had been refused. Ms Thomas further accepted that, this Court having stayed the proceedings and directed that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, it had been wrong for the agency decision maker to proceed to approve the match of the children with the prospective adopters.
45.
I acknowledge that the local authority was understandably anxious that the plans for placing the children should be advanced without further delay. But their decision to proceed with the farewell visit while the father’s application for permission to appeal was pending was plainly wrong and contrary to the children’s interests. As the appeals are now being allowed (by consent), contact between the children and their parents and other family members will resume. The children are likely to be confused and distressed by what is happening, and will require very careful support and assistance to come to terms with it. There remains the possibility that, for one or more of the children, the decision at the end of the day will again be that they should be placed for adoption. If so, there will in all probability be a further break from their birth family. The damage caused by what has already happened will be compounded.
46.
It may be that there was a misunderstanding within the local authority about the significance of the appeal bundles being rejected by the office. It is clear from the emails sent by the Court of Appeal Office, however, that the refusal to accept the bundles did not mean that the application for permission to appeal was being refused. I have seen nothing in the emails sent by the father’s solicitor to suggest that this was the case. On the contrary, his emails were very properly keeping the other parties fully informed about the progress of the appeal. In Re S (Care and Placement Orders: Procedural Failings) [2015] EWFC 20, problems arose because of failures by legal representatives to keep other parties informed with the consequence that a child was placed with prospective adopters before an appeal against the placement order had been determined. In the present case, there was plenty of communication between the legal representatives but, despite being informed of the prospective appeal, the local authority proceeded to take steps to implement the plan for adoption. Even if it is correct that there was a misunderstanding about the significance of the appeal bundles being rejected by the office, that cannot excuse the actions of the local authority in arranging the farewell visit at a point when it knew that there was an outstanding application for permission to appeal. It was a grave error for the local authority to proceed with the farewell visit in this case.
47.
In addition, the decision by the agency decision maker on 24 June to approve the match was a blatant breach of the direction of this Court when granting permission to appeal that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals.
48.
In making these observations, I am not intending to criticise any individual within the local authority. I am conscious that the individuals involved have not had an opportunity to respond. It is clear from the papers that this has been a very troubling and challenging case for the children’s services department, and the care and concern which the allocated social worker devoted to the case is evident from the judgment and from her statement filed for this appeal. This Court also appreciates the very great pressures on local authority solicitors.
49.
The following lessons may usefully be learned from this series of events.
(1)
A local authority should take no steps to implement a placement order and care plan for adoption until after the expiry of the 21-day period for filing a notice of appeal against the order.
(2)
After that point, an application for permission to appeal can only proceed if the proposed appellant is granted an extension of time for filing the notice pursuant to CPR 52,25(1) and Practice Direction C paragraph 4. In practice, given the life-changing importance of placement orders, extension of time is frequently granted if the appeal notice is filed fairly shortly after the appeal period has expired.
(3)
In cases where, after the expiry of the 21-day appeal period no appeal notice has been filed and the local authority is concerned that further delay would be contrary to the child’s interests, it should inform the other parties that it intends to proceed to take steps to implement the placement order and care plan. Having been given such notice, the onus is then on any party wishing to appeal to file an appeal notice without further delay and seek an immediate stay of the order.
(4)
Once an appeal notice has been filed and served on the local authority, but before a decision has been made on the application for permission to appeal and/or on an application for a stay, if the local authority is concerned that delays in the process are having a damaging effect on the child, it should contact the Civil Appeals Office so that consideration can be given to accelerating consideration of the application for permission to appeal. It is not acceptable for the local authority to proceed as if the application for permission to appeal has never been filed.
(5)
The local authority and any other respondents to the application for permission to appeal against a placement order must give urgent consideration to whether they should file a respondent’s statement pursuant to CPR Practice Direction 52C Paragraph 19(1) and, if they decide to file such a statement, to do so without delay.
(6)
If this Court, either before or on granting permission to appeal, grants a stay of the proceedings and directs that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, any step taken in breach of such a direction by this Court is manifestly unlawful and prima facie a contempt of court.
(7)
If there is any particular step that the local authority wishes to take to implement the placement order, it may apply to this Court for the stay to be varied . Reasonable requests of this sort are unlikely to be refused provided they do not adversely affect the welfare of the children or prejudice the outcome of the appeal. But it is difficult to think of any circumstances in which it would ever be appropriate for a farewell contact visit to go ahead when an appeal against a placement order is outstanding.
Finally, and not related to this case, a plug for the textbook that I had a hand in writing. It is called “The Dictionary of Public Children Law” and it is small and light – it would fit very easily into your laptop case and it covers pretty much every topic that you’d need to be able to get a quick answer and chapter and verse on what the law is, what the tests are, what the key precedent principles are and any relevant parts of Regulations or Child Procedure Rules. Obviously google exists to find answers to things, but the textbook has already done that for you and with the benefit of having been coaxed and finessed into a beautiful pompadour of law so that on the occasion when you’re at Court and need to quickly know how to go about making an application for a Stay or a Port Alert, you can just have everything you need at hand.
I’ve written about a fifth of it, as has the very well-known legal blogger Pink Tape (Lucy Reed KC), the barrister Gill Honeyman, HHJ Simmonds and DJ Cassidy. It packs all five of our hive-minds into a very light and convenient package – much much easier than carrying either Hershmanns or all five of us around.
https://classlegal.com/books/pre-order-dictionary-of-public-children-law-2024
suesspiciousminds 