K (Revocation or Adoption: A Declaratory Judgment), Re

In this judgment all of the individuals with whom the child in question enjoys a relationship have been anonymised. In so doing no discourtesy is intended to anyone, it is done only to better protect their privacy and ensure the confidentiality of the proceedings is maintained. The individuals in question know who they are. No one else need be troubled by that information in order to properly understand the scope and context of the issues with which this judgment is concerned and the reasoning behind the decisions set out below.

This judgment is concerned with a little girl whom I shall refer to as K. K has not long ago celebrated her third birthday. She is a much loved little girl, a fact which is both undisputed and to be celebrated. However it is also the very fact which has created the issues with which this judgment is concerned.

K lives with F and C. They are not related to her either genetically or legally but they undoubtedly have a hugely significant social and psychological relationship with K because they have cared for her since she was four days old. K’s attachment to F and C is strong and deep and is reciprocated as strongly if not more so by them. To F and C K has become as one of their family and although when she came to live with them she was expected to move on they have reached the point where their bond with her is not now one they could willingly accept being broken.

K’s mother is M. K was M’s first child but M has subsequently given birth to a sibling who has a different father. M is a woman who has had a difficult and turbulent history. It was because of that history and its relevance to M’s life back in 2020 that K was placed with F and C upon discharge from her maternity hospital. In 2021 I made care and placement orders in respect of K and dealt in some detail with the multiple problems which M presented to that Local Authority and which I found at that time to be entrenched. However even then it was clear that M was more than simply a young woman with a problematic history which was affecting her present. It was clear that M possessed determination, insight and, in the right circumstances, might offer a more positive version of herself than would then have been available to K. To a large extent this has been proved so. K’s younger sibling was also the subject of care proceedings and whilst like in K’s proceedings a care order was made, unlike in K’s proceedings there was no placement order made as well. That care order was supported by a plan of working towards a possible rehabilitation of the child to M.

K’s plan was completely different. It was expected that within a short time after the conclusion of proceedings K would be matched with prospective adopters, be placed with them and so be go on to build her life with a new family. That plan has not progressed as anticipated. The care and placement orders are now approaching their second anniversary contrary to the expectations at the time. Despite the efforts of this local authority to promote and publicise K as a child suitable to be adopted this has not happened. Several times potential adoptive parents indicated their interest but for different reasons no match, let alone any placement, was ever made. Instead time passed and as F and C continued to care for K they found themselves questioning whether they were still committed only to be K’s short term care. It was not that they did not wish to care for K, but that they did not want to stop doing so. The emotional ties they found were building between themselves and K were outgrowing the limitations of their fostering responsibilities. Over a period of time F and C reflected upon what was happening and slowly came to the realisation that they did not want to move K on but to hold fast to her.

For M that same period of failed potential placements combined with the progress she had made since 2021 caused her to consider that it was time to seek to renew her relationship with her daughter. That relationship had effectively stopped in January 2022 when a farewell contact had taken place and thereafter there had been little, if any, information about K provided to M, despite M being keen to learn of K’s situation, and nothing by way of contact. That absence of any information proved critical and by May of 2023 M had decided that she needed to force the issue and made an application under s.34(3) of the Children Act 1989 for a contact order with a child in care. However by virtue of the existence of the placement order that was technically the wrong application under the wrong statute. Upon issue that application was allocated to myself as the Judge who had made the original orders and at the initial hearing two things were clear. Firstly, that M had issued an application for contact under the wrong legislation but, and more importantly, contact, irrespective of under what statute it was being sought, was not what M wanted. In her statement supporting her application M was clear that her real aim was not an application under s.34(3) of the Children Act nor even one under s.26 of the Adoption and Children Act 2002 but under s.24 of that Act, namely one to secure the revocation of the placement order.

At that first hearing the technical error was acknowledged and M’s case was re-shaped on the basis of her intention to pursue revocation. The response of the Local Authority to M’s intended step was to assert that any such an application, whether for permission or substantively, could not be made because K had been placed for adoption with F and C in the earlier part of 2023 and an application for an adoption order, if not already with the court, was imminent. The Local Authority asserted that this being the case any application M sought to make for a revocation of the placement order was statute-barred by the operation of s.24(2)(b) of the Act.

That assertion of a placement having already been effected took both M and the Guardian, who had been appointed to represent K in the initial s.34(3), Children Act 1989 application, by surprise. Accordingly directions were given for the Local Authority to evidence this assertion and to properly set out the basis upon which it was being made and for responses to be provided by the other parties.

At the same time I invited the Adoption Clerks to make a search of the applications received in order to identify whether an application in respect of K had already been sent it or even been issued. That search revealed that no application had yet been received. In order not to potentially prejudice any application M was intent on making I invited F and C not to issue any application pending the receipt of the further evidence to be filed by the Local Authority. Following that hearing M duly submitted her application for permission to revoke the placement order.

By the date of the following hearing the evidence filed by the Local Authority asserted that:

As M had now filed her application to seek to revoke the placement order I indicated that if F and C wished to now lodge their application they should not be constrained from so doing. This was done in order to maintain parity between the potential applications and to avoid prejudicing anyone prior to a substantive determination of the procedural position. Accordingly F and C submitted their application for an adoption order and on 7 July it was allocated to me and I gave directions administratively.

There is now therefore before me an uncommon but not unique legal situation.

There are two competing applications concerning K. The first in time is an application for permission to revoke a placement order. It is an application made by K’s mother and she seeks to demonstrate that life has now moved on so successfully that she should be considered as a parent who could now care for her daughter but in so doing enable a sibship to be created between K and her youngest child and so unify a separated family. If it could be achieved it would undoubtedly offer much to K.

On the other hand there is also now an application from F and C, the only carers K has known, who seek to cement her into the only family she has ever known and so not only secure her future but do so without any disruption, risk of destabilisation or collapse of her caring arrangements. If such a smooth and seamless transition to permanency for K were to happen it would undoubtedly offer much for her.

However before being able to consider any of these important substantive issues there is not only a preliminary matter, that of whether permission should be given to M, but a prior procedural matter to resolve: namely (a) whether K has been placed for adoption as asserted by the Local Authority? And, if so, (b) what consequences, if any, does that status have for either or both of the applications now before the court?

The determination of K’s status is important not only to the immediate question of whether these two applications can co-exist but also because, having scrutinised the legislative framework set out in the Adoption and Children Act 2002, it is clear to me that there are a number of significant differences between the procedural route which is to be followed for a child who has been placed by an adoption agency and the path of an application in respect of a child who has not been so placed. The differences would impact upon each of the applications currently before me if either is to be progressed.

In summary the differences when considering an application in respect of an adoption of a child who has been placed by the adoption agency include:

Together those elements demonstrate in my judgment a deliberate intent on the part of Parliament not only to provide extra protection for placements which have been the subject of prior consideration by an adoption agency but also to make it more difficult for those who have neither sought nor secured such approval to secure an adoption order and also make it more difficult for parents of placed children to challenge the process.

The governing legislation in respect of placement orders and adoption orders is the Adoption and Children Act 2002 (the Act).

Where a child has been placed for adoption by the local authority acting as an adoption agency the first consequence of the fact of that placement is that it confers a primacy upon that placement by creating through the operation of s.24(2)(b) of the Act a prohibition against the parent of a placed child being able even to make a necessary application for leave to seek to revoke the placement order.

The court may revoke a placement order on the application of any person.

the court has given leave to apply, and

the child is not placed for adoption by the authority.

Where –

the child is not placed for adoption by the authority,

That primacy accorded to the placement where a child has been placed by an adoption agency is not just in relation to any attempt by a parent to remove the child but also an adoption agency. Where an application has been issued for an adoption order but has not yet concluded and the child in question had been placed with those applicants the adoption agency may leave the child there but it cannot remove the child and place with other prospective adopters (s.18(4)).

In addition to the affording of protection to the primacy of a placed child’s placement with their carers two specific procedural requirements are waived or reduced in order to more easily facilitate a planned and approved match between child and prospective adoptive parents.

For all applicants for adoption orders there is a minimum period during which the subject child must have been living with the proposed applicants prior to the issuing of an application for an adoption order (s.42).

An application for an adoption order may not be made unless –

In this section and sections 43 and 44(1) –

As can be seen above the periods of residence range according to the status of the applicant. For an applicant who is the partner of a parent of the child the relevant period during which the child must have made her home with the applicant is six months (s.42(3)). For those who have been caring for the child as local authority foster carers the necessary period of residence increases to one year (s.42(4)) but for those who are neither connected to or an approved carer of the child the minimum period of residence prior to the making of an application is three years (s.42(5)). If in the case of the latter two categories if the requisite period of residence has not been achieved the prospective applicant is required to secure the leave of the court (s.44(4)). In marked contrast for those making an application in respect of a child who has been placed with them by the adoption agency that period of actual residence is only ten weeks (s.42(2)).

Achieving the necessary residential qualification is not the end of the matter. Having achieved the residential qualification a prospective adopter must then give notice of their intention to make an application for an adoption order in respect of the child in accordance with s.44.

Section 44(3) of the Act sets out a minimum period of three months and a maximum one of two years’ notice before a prospective applicant who would otherwise be entitled to make their application may do so. However such requirement is disapplied for any application to adopt which in respect of those with whom a child has been placed (s.44(1)).

In the event that an application for an adoption order is made a further consequence of the fact of placement is in relation to the opportunity that a parent has to oppose an application for an adoption order. No adoption order can be made unless one of three conditions is met (s. 47(1)). The first and third conditions are not relevant on the facts of this case to this judgment. The second condition is central to the issues with which I am concerned and is set out in s.47(4) as follows:

Where a child has been placed for adoption by an adoption agency under a placement order there is no automatic entitlement of a parent to challenge either that order or a subsequent application for an adoption order. Any person other than the child or the local authority authorised to place the child for adoption requires the leave of the court in order to either seek to revoke a placement order (s.24(2)(a)) or to oppose an application for an adoption order (s. 47(5)).

The question of leave, whether to seek to revoke a placement order or to oppose the making of an adoption order, has been the subject of focused judicial interpretation by the senior courts since the coming into force of the Act. The grant of leave is subject to an amalgam of different considerations:

As the vast majority of such applicant parents learn to their dismay, that combination of requirements aggregates to a barrier which they are unable to overcome, even though the approach to be taken when dealing with such applications is not to set the bar too high (Re P (Adoption: Leave Provisions) [2007] EWCA Civ 616).

However in respect of a child who has not been so placed that requirement to first secure the leave of the court for the purpose of mounting opposition to an application is not a condition precedent.

In my judgment it is a clear intention of the statute that the act of placing a child with prospective adopters has far-reaching implications in terms of the status of the child with respect to the available routes to be travelled through to potential permanence. This is as it should be and the reasons for these differences are clear. As will be discussed in more detail below a child who has been placed for adoption by an adoption agency is not only a child in respect of whom a court has made a placement order but also a child whose prospective adoptive parents have undergone a process of approval as persons suitable to adopt and thereafter been further approved as being suitable to be specifically matched with the child in question. Both the making of a placement order and the approval of prospective adopters involve detailed, considered and rigorous processes which have proven to be robust in their application to the issue of adoption.

In the case of placement orders there is now a developed body of authority as to the proper application of the statutory framework to guide and assist Judges in their responsibilities when considering such applications. As any local authority social worker can attest securing a placement order requires clear evidence and a thorough and robust evaluation of all of the available realistic options. Judges are under no illusion that despite the frequency with which the word ‘Draconian’ is casually flung around in courtrooms without any obvious thought as to its full effect and meaning, the starting point when considering whether to make a placement order is that it not only engages fundamental rights for the child and the parent but is seriously impactive upon them. When confronted with an application to make a placement order the starting point for the court is: ‘why should I make this order? What is the need to do so?’ and not ‘why should I not make this order.’ The onus, stemming from the landmark judgment of the Supreme Court in Re B [2013] UKSC 33 is that such an order is justified ‘only in exceptional circumstances and where motivated by overriding requirements pertaining to the child’s welfare, in short, where nothing else will do.’ (Re B, para. 198, per Baroness Hale). Given the life-changing nature which the making of a placement order and any subsequent order will have upon the child both in their own life and beyond it this is, of course, as it should be.

In the case of the approval of prospective adopters, the requirement of local authorities acting as adoption agencies is to comply with the highly prescriptive statutory duties imposed upon them in the detailed form set out in the Adoption Agencies Regulations 2005. That process of scrutiny involves the individual in a multi-factorial assessment including their personal history, their past and present relationships, their current circumstances regarding employment, their health and their financial state. It requires the collation of a broad range of information and its assessment by a trained social worker as well as consideration by an independent panel both as to the question of their suitability to adopt generally and their suitability to adopt a specific child. The process is long, arduous, detailed, comprehensive and requires commitment and training. As above, and for exactly the same reasons, that is exactly as it should be given what is involved.

The answer to this question requires a consideration of what actually happened in the light of the formalities, duties or requirements necessary to achieve a ‘placement.’ It will be helpful to first consider the legal framework and then apply that to the factual material as evidenced.

I am grateful to each of the advocates for their Skeleton Arguments which were of assistance in navigating my way through what has proved to be a more complicated area of law than first anticipated.

The question of what constitutes a ‘placement’ has been considered on two occasions by the Court of Appeal and in my judgment it is clear from the authorities of Re S [2008] EWCA Civ 1333 read in combination with Coventry City Council v O [2011] EWCA Civ 729 that the following principles apply to the question of what constitutes ‘placement’:

It is helpful to cite the following analysis from Re S:

The references above to ‘approval’ and ‘panel’ are references to paragraphs within the Adoption Agencies Regulations 2005 (the Regulations) as the scheme by which an adoption agency considers, identifies and approves prospective adoptive parents and then matches those suitably qualified to specific children who can be placed for adoption is set out within those regulations.

Those regulations set out a detailed scheme by which adoption agencies fulfil their statutory duty under the Act to enable the adoption of children. They are applicable whenever a local authority acting as an adoption agency is determining whether and if so by whom children may be put forward for adoption. The power to make an adoption order remains with the court but the local authority as the adoption agency has the responsibility for facilitating the arrangements by which prospective adopters are identified, assessed, approved, matched, by which a child is then physically placed with those prospective adopters and how that placement is then reviewed and the subsequent documentation in support of the adoption application prepared.

These regulations do not govern or impact upon every aspect of every adoption application placed before a court but they prescribe how a local authority / adoption agency must act and set out their duties, powers and responsibilities insofar as it involves the local authority driving an adoption application.

The regulations are divided into eight parts but for the purposes of this judgment only parts 4, 5 and 6 are specifically material and I will concentrate upon those here.

Part 4 is entitled ‘Duties of Adoption Agency in Respect of a Prospective Adopter’. This part is further sub-divided into two parts: Stage 1 - the pre-assessment process and Stage 2 - the assessment decision.

Stage 1 is concerned with processing individuals who indicate an interest in adopting and undertaking various information gathering and collating that information in order to make a decision as to whether that interested person is in fact a suitable person to be assessed as a prospective adopter. If the question is answered in the positive the process moves to Stage 2.

Stage 2 focuses upon assessing that individual and determining whether they can be approved as a prospective adopter. A number of steps, checks and necessary information is to be gathered under an assessment plan and formulated into a prospective adopter’s report which is then the basis for determination of the question of suitability. That determination is made by the adoption agency but only after receiving a recommendation from a panel. The role, composition and functions of a panel are themselves the subject of detailed regulations set out in Parts 2 and 3 of the 2005 Regulations.

Within Stage 2 of Part 4 regulation 30F is important because it identifies approved foster carers as being a category of persons in respect of whom the Regulations do apply but not to the full extent that they are applied against those who are not already approved foster carers. Those who seek to adopt who are already approved foster carers must comply only with an ameliorated set of requirements which are set out in Schedule 4A of the Regulations.

Schedule 4A disapplies a number of requirements in respect of Stage 1 but importantly in my judgment it does not disapply regulation 30A(1), which is entitled ‘the Function of the Adoption Panel’. That regulation sets out as follows:

It is clear therefore that even in a situation where a person seeking to be approved as a prospective adopter is already an approved foster carer where that person is seeking to have a child placed in their care by an adoption agency it is necessary to secure approval from the agency, via a panel recommendation, that they are suitable so to be.

Part 5 of the Regulations is entitled ‘Duties of adoption agency in respect of proposed placement of child with prospective adopter.’

Within Part 5 regulation 31 sets out detailed steps to be taken by the adoption agency which is considering the placement of a child with a particular prospective adopter. Those steps include the provision of information to the prospective adopter, to meet with that person and to ascertain their views about the proposed placement. Regulation 31(2) requires an assessment of the needs of both the child and the prospective adopters, the consideration of issues in relation to future contact between the child and their birth family and the preparation of a written report in respect of the proposed prospective adopter.

If, following that work, it is considered that the proposed placement should proceed the matter must be re-referred to an adoption panel (regulation 32) which shall receive the placement report, the child’s permanence report and the prospective adopter’s report. The panel must consider the proposed placement and make a recommendation to the adoption agency (regulation 33) which must then decide as to the proposed placement and, in the event of a decision in favour of that placement, ensure that all of the relevant written materials are then placed on the child’s case record.

Part 6 of the Regulations is entitled ‘Placement and Reviews’.

Part 6 deals with the implementation of the placement approved under Part 5. Specifically material to the issues before me is the requirement set out in regulation 35(5) to notify a prospective adopter with whom the child is already living in writing of the date on which the child is placed for adoption with him by that agency.

Those, in summary form, are the necessary procedural requirements before any individual can be considered to have been approved as a prospective adopter and then as a match for a child and then to be considered to have had a child placed with them for the purpose of an adoption. It is against that framework that the actions of the Local Authority in respect of F and C must be evaluated.

In the course of reflecting upon both the Skeleton Arguments received and the submissions delivered at the oral hearing from all parties, including the solicitor for F and C, who attended on the day and at short notice but was of great assistance in her succinct points, I considered it helpful to prepare a short Chronology of relevant dates gleaned from the papers. It was helpful to do so because it enabled a clear factual position to be understood of who said what and who did what in relation to the question of adopting K. To assist those who will hereafter reading this judgment I have appended that document to this judgment as Appendix 1.

The following events are important in properly understanding what happened as between the Local Authority and F and C:

A number of positive points can be drawn from what is set out above:

However what is also clear from the Chronology is what did not happen. As directed the Local Authority have filed detailed statements identifying each of the steps taken to support F and C in their stated intention of adopting K. Notwithstanding the care taken in the preparation of those statements nowhere within them is there any record of any panel having considered F and C whether as suitable candidates to adopt at all or as their being a suitable match for K as her prospective adopters. This is important because at the initial hearing when the Local Authority made their assertion that K was already placed with F and C I indicated that this was a matter which only the Local Authority could evidence, it did not lie with F and C, let alone, M to establish the point or prove the negative. Therefore in the absence of positive evidence as to what had happened I would infer that any absence of such evidence would automatically imply the negative, that it had not happened and would base any analysis of the factual position upon that assumption. The Local Authority therefore were clear as to their obligation to set out everything in detail and aware of the consequences of not doing so.

I have no doubt that that the Local Authority have in fact set out clearly all that they did do, were aware of and all of the steps they have taken to assist F and C in their wish to adopt K. However in so doing I am confident that the absence of evidence of panel approval, report preparation and records of decisions means that these do not exist because those things did not occur.

It follows therefore that in the absence of any record confirming any panel approval or any report prepared in relation to the suitability of F and C as adopters generally and specifically adopters for this child that these steps did not take place. However for the reasons set out above those steps are mandatory and therefore whilst there was significant local authority involvement with F and C, all of which was positive and supportive of their aspiration to provide permanency within their family for K, there has not been compliance with the detailed requirements of Parts 4, 5 and 6 of the Regulations and that accordingly no formal and procedurally correct decision was made that K was now placed with F and C not as her foster carers but as her prospective adopters.

It is important to record that looked at from one perspective this is both understandable and a logical conclusion of the view the Local Authority took as to how it should operate.

During the course of submissions counsel for the Local Authority on instructions submitted that the Adoption Agencies Regulations did not apply in this particular case because the Local Authority was not acting as the Adoption Agency in respect to K as it had made arrangements for a specialist third party organisation to undertake those responsibilities. In the alternative thr Local Authority asserted that the Regulations, should they be applicable, did not apply to their full extent and, in particular, did not apply in terms of the necessity for following the procedural process for securing approval of the specific placement of K and F and C as prospective adoptive parents due to their particular circumstances as approved foster carers.

Although at first glance each of these propositions could be considered to be bold I considered it only right to follow them through by way of a detailed scrutiny of the Regulations in order to satisfy myself as to whether either was an accurate summation of the law. Having done so I have reached the clear view that each submission is not in accordance with the law and specifically the proper interpretation of the Regulations.

Dealing firstly with the applicability of the Regulations to the Local Authority or any third party organisation with which it entered into an agreement to discharge the responsibilities for the adoption of children. The basis of their application can be summarised as follows:

Having considered the relevant statutory provisions set out in the Act I decline to accept that submission for the following reasons:

For the sake of completeness section 3(1) referred to above together with section 3ZA are set out below to complete the picture of how a local authority may choose to discharge its responsibilities in relation to the adoption of children.

No written material has been provided by the Local Authority as to the basis upon which it has outsourced its statutory responsibilities in respect of adoption to ABC so I am unable to conclude as to the operational arrangements between the two organisations. However I fully accept that I am dealing with a responsible local authority which would not deliberately nor even knowingly act in a manner which was outwith its responsibilities. It is perfectly proper for a local authority to take steps to enable its duties to be dealt with by a specialist organisation but in doing so it must act in accordance with sections 2, 3 and 3ZA of the Act. Insofar as this Local Authority has done so and that ABC has, as a result, undertaken those responsibilities, that organisation must be acting either as an adoption agency or as a registered adoption society. The inclusion of the words ‘on their behalf’ in s.3ZA(1) (above underlined and emboldened) would suggest that by applying the ordinary meaning of such words whilst the local authority itself is not undertaking the work necessary to enable adoptions to take place the responsibility for ensuring compliance with applicable statutory duties remains with the local authority and remains applicable to what is thereafter done in the name of the local authority. I cannot read those sections of the Act as enabling a local authority to avoid the full impact of those duties by shifting its responsibilities to a third party organisation to which such obligations do not apply.

The logical conclusion of that argument is that an organisation such as ABC could therefore effectively decide in an arbitrary and entirely inconsistent pattern what processes it would follow in the approval of adopters, the determination of matches, the procedures governing effective placements and the scope, content and quality of any reports considered necessary to achieve an adoption. In such circumstances a local authority would be entitled to rely upon ABC’s determinations as to what constituted a placement and then assert all of the protective and facilitate consequences of such determination without further consideration.

In relation to the second submission, as to the applicability of the Regulations to F and C who were already approved as foster carers for the Local Authority in my judgment the Regulations apply to foster carers. Whilst it is the case that the extent of the obligations under the Regulations is deliberately limited in the case of those already approved as foster carers it is clear from my reading of Part 4 and Schedule 4A as referenced above that those disapplications are limited and specific. There is no blanket disapplication.

It follows that insofar as there is any argument that K had been placed with F and C as prospective adoptive parents on a date prior to the issuing of M’s application to revoke the placement order and that therefore M’s application could not be pursued that is wrong. K has never been placed with F and C because of the necessity of complying with the Regulations in order to achieve that end and the absence of any evidence that this has occurred.

The original purpose of this judgment was to make a declaration as to the status of K in order to determine which of the two applications now before me, M’s revocation application and F and C’s adoption application, could be pursued. It was my clear view expressed in court to the advocates that both could not co-exist and that it was necessary to determine which one should proceed and which be summarily dismissed.

Having now spent considerable time scrutinising the legislation in granular detail I am confident that my original assumptions were not correct and that a wholly different position pertains. I have no hesitation in saying that it is a concluded view which surprises me.

My conclusion that K does not have the status of a placed child means that M’s application can be pursued because the prohibition against such an application as set out in s.24(2)(b) is inapplicable here. In bringing her application M must still secure leave to do so and the law is clear as to what she must evidence in order to cross that threshold.

Prior to reflecting upon the statute in detail it had been my view that securing leave (or permission) was an inevitable step for M whether she pursued her own application or simply sought to engage as a respondent in F and C’s application. However the conclusion that K is not a child who has been placed by an adoption agency has ramifications beyond a mere gateway device as to which application should be allowed to go forward.

The relevant section is section 47 and the relevant parts of that section are set out below.

Under s.47 leave is required for a parent to oppose the making of an adoption order in the circumstances set out in the sub-sections therein. As referred to above under s.47 there are three conditions for the making of an adoption order but only the first two are relevant to this judgment.

The first is that either a parent consents, has consented or their consent is dispensed with. A parent is required to secure permission to oppose the making of that order only if there is a situation of previous consent having been given in accordance with s.20 of the Act. That is not the case here.

The second condition is that the child has been placed for adoption by the adoption agency with the prospective adopters in whose favour the order is sought, or the child was placed for adoption with the consent of the mother, or the child was placed for adoption under an adoption order or there is no opposition to the order.

If any of those arms of the second condition applies a parent must seek permission of the court to oppose the making of the order.

I have already determined that K was not placed with prospective adopters by the adoption agency, K was not placed with the consent of the parent and whilst K is subject to a placement order K has not been placed for adoption in accordance with the requirements underpinning ‘placement’ as previously set out.

It follows therefore that M, in my judgment, would not require permission in order to oppose the making of an adoption order. The question then is whether such an application by F and C can be pursued.

As previously noted above there are different routes by which children can be adopted. F and C are not applying to adopt K via the Local Authority as persons approved as prospective adopters with whom a specific child has been placed following approval of that match and placement but are applying to adopt K as individuals who qualify as applicants via a different route. In the case of F and C their eligibility to apply for an adoption order was conditional upon the period of residence of the child with them and the period of prior notification they had to give to the Local Authority. Pursuant to s.42(4) F and C are foster carers with whom a child has been living for a period of one year prior to the application. That qualification was achieved in July 2022, over a year ago. Further there was a requirement that F and C had to give written notice to the local authority of their intention to apply to adopt and to do so no less than three months prior to their making their application. It is not disputed that notice was given on 15 March 2023 and therefore that condition was met by 15 June 2023.

Accordingly their application is properly before the court irrespective of the existence of M’s application. However it cannot be concluded without a written report from the local authority which must be submitted to the court. That report was certainly outstanding as of August 2023 but will be attended to in due course and directions for the filing of the same will be given presently.

It follows that M is a respondent to that application as of right and that application is properly before the court. In the circumstances the sole issue upon such an application being considered is whether M’s consent should be dispensed with in accordance with s.47(2)(c) of the Act.

If M does not require permission to oppose the making of an adoption order but does require permission to pursue her own application to revoke the placement order it might be considered both more efficient and a better use of court time to dismiss her application to revoke the placement order and to focus upon the application for an adoption order. In addition in relation to the argument for proceeding simply with the application for an adoption order there is the important point set out in s.24(4) of the Act whereby if upon determination of an application for an adoption order the court decides not to make that order any placement order in place may be revoked as a consequence of that decision.

Those two factors combined would suggest that the better course, and certainly one consistent with the Overriding Objective in relation to the proportionate use of court resources would be to dismiss the application for revocation of the placement order and to focus upon the adoption application. However to do so would be to miss an important point and one which M has highlighted through her counsel and which should rightly feature strongly in any case management decision pertaining to the litigation.

For all that M seeks to care for K she has properly and fully acknowledged all that F and C have done for her daughter, the bond they have formed with her and the excellent care they have afforded her. M has indicated that moving straight to a contested adoption application would inevitably pit her against F and C in a situation where she has made clear that if she is unable to care for K in the future there are no others that she would rather do so than F and C. M seeks to avoid a direct contest with all its potential for upset, uncertainty and lingering turmoil. In so doing M not only demonstrates her generosity of heart but also her own child-centric thinking and her ability to prioritise what is least unhelpful to K. It has long been my view that one of the aims of the Family Court should always be to ensure that upon the conclusion of any litigation in this arena as much of the family, its resources, emotional as well as financial, and the relationships between its members should be intact and available for the benefit of that family in the future.

M is clear that she would rather seek to pursue her leave application in order that she can, if possible, avoid any direct conflict with those for whom she has only praise and thanks. That is both admirable and achievable. In the circumstances I shall direct that the permission application is determined prior to any further steps being taken in any other application. Whilst this may not have been the conclusion I expected to be reaching when I initially heard argument I am confident that it is the correct one for this child.

That is my judgment.

CHRONOLOGY