EL, R (On the Application Of) v Essex County Council

The hearing of this judicial review took place in public and this is a public document. At present section 97 of the Children Act 1989 applies to the child whose plan for adoption is the subject of this judicial review. So, this judgment is anonymised.

The Claimant is the mother of two children a boy and a girl aged respectively 12 and 6. Following a contested hearing at the Family Court orders were made that endorsed care plans advanced by the Defendant, Essex County Council, (the local authority) for both children. A care order was made in respect of the boy based on a care plan for long-term foster care and care and placement orders were made in respect of the girl (the child) on the basis that the court approved the local authority’s plan for her adoption.

The Claimant’s application for permission to appeal against those orders was dismissed in August 2016.

In reliance on the placement order the child was placed for adoption on 5 October 2016. It is this decision to place that is challenged in these proceedings.

The interested party is the child’s guardian in the proceedings in the Family Court. He, the father of the child and the prospective adopters have taken no part in this judicial review. The prospective adopters are aware of its existence.

The challenge to the decision to place the child is founded on the decision of the Court of Appeal in Re F (Placement Order) [2008] 2 FLR 550 relating to the need for a local authority to act fairly when making a decision to place a child for adoption pursuant to a placement order.

Re F has two parts. Firstly, it addresses the construction and effect of section 24(5) of the Adoption and Children Act 2002 (the 2002 Act) which provides when an adoption agency (local authority) needs the leave of the court before placing a child for adoption in respect of whom a placement order has been made. Secondly, it addresses the decision-making process of the relevant adoption agency (local authority) when making a decision to place without the leave of the court

The majority decided that:

So, in Re F the Court of Appeal determined that Parliament had concluded that it was only when an application to revoke a placement order had been made that the adoption agency has to seek the leave of the court before placing a child for adoption pursuant to it. It also determined that as this statutory regime could be operated fairly it was not incompatible with the Article 6 or 8 rights of the relevant family members. However, it did not consider the procedural aspects of those Articles.

The need for the local authority to comply with good practice and so a fair process (see paragraph 44 of the judgment of Wall LJ) when making a decision to place is, or should be well-known, because the Court of Appeal made considerable efforts to ensure that its decision was circulated.

It was highly critical of the approach taken by the adoption agency in Re F to the making of the decision to place and made it very clear that:

The present application is founded on the proposition that applying the guidance given in Re F the decision to place the child on 5 October 2016 was procedurally unfair.

The Claimant also argues that it was in breach of her Article 6 rights and she seeks damages for that breach.

The local authority denies that it acted in a way that was procedurally unfair or which resulted in a breach of the Claimant’s Article 6 rights and in any event, argues that as a matter of discretion I should refuse (a) to quash the decision to place, and (b) to grant injunctive relief to prevent placement for adoption before the Claimant’s application to revoke the placement order has been determined, on the basis that under s. 47 of the 2002 Act the Claimant can seek leave to challenge the adoption and, if that is granted, challenge the adoption.

The changes in the law made by and the structure of the 2002 Act are set out in Re F. At paragraph 72 of his judgment Lord Justice Wall said this:

“-- it is not, I think, controversial to say that the 2002 Act had four main objectives. The first was to simplify the process. Second was to enable a crucial element of the decision-making process to be undertaken at an earlier stage. The third was to shift the emphasis to a concentration on the welfare of the child; and the fourth was to avoid delay --”

The 2002 Act introduced the concept of a placement order namely as defined in section 21:

“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”.

The making of a placement order at the same time as the care order advances a crucial element in the decision-making process leading to an adoption and gives the adoption agency (local authority) an important power that can have long-lasting effects.

Placement for adoption has significant legal and emotional impacts for all involved and so the child, the parent and the prospective adopters. So, it is an important step in the process leading to an adoption. Re F determines that the watershed between a placement pursuant to a placement order that requires and does not require further court involvement is the making of an application to revoke the placement order.

It is obvious that a placement followed by an assessment of its success is a crucial stage of the welfare based adoption order process set by the 2002 Act and that the adoption process can be speeded up by giving the adoption agency (local authority) the power to place without returning to court.

In Re B-S (Adoption: Application of s. 47(5)) [2014] 1 FLR 1035 the Court of Appeal made it clear that of themselves the facts that a child has been placed and time has passed since the placement cannot act as bar to a parent obtaining leave to oppose and successfully opposing an adoption order being made.

At both the leave to object and substantive order stages of an application for an adoption order s. 47 of the 2002 Act the court has to treat the welfare of the child throughout his or her life as paramount and so has to take an appropriately long-term view. Also, a parent can successfully oppose an adoption order being made without establishing that it is in the child’s best interests to return to live with the parent. For example, an adoption order could be refused on the basis that the child remains in care but lives with foster parents, has contact with the parent and contact or more contact with a sibling (and so in this case the child’s brother).

However, notwithstanding the approach confirmed in Re B-S the facts that a placement for adoption has been successful will be a relevant factor that is likely to make it more difficult for a parent who has established a change in circumstances to succeed in arguing that an adoption order is not the result that will best promote the welfare of the relevant child throughout his or her life. Accordingly, from the perspective of a parent objecting to adoption who asserts that they can establish a change in circumstances before a child is placed for adoption, the loss of the possibility of revoking the relevant placement order is likely to be detrimental on the substantive issue – which is whether the adoption process should be brought to an end.

There is also considerable merit from the viewpoint of the prospective adopters in ensuring that if there is to be a challenge by such a parent it is at the placement order stage. This is because if that challenge fails the prospects of a successful challenge to an adoption order being made after a successful placement for adoption are likely to diminish and so, from the perspective of the prospective adopters, there will be a reduction in the risk that at the end of the day a process to which they have committed considerable emotional energy will fail.

Additionally, on an application for leave to make an application to revoke a placement order under s. 24(2)(a) of the 2002 Act the welfare of the child throughout his or her life is not the paramount test. Rather, it is a factor. This difference in the leave test means that it may well be more likely that the parent will obtain leave as a result of a change in circumstances and so be able to argue the substantive issue, namely whether the adoption process should be brought to an end (see M v Warwickshire CC [2008] 1 FLR 1093).

In my view:

It is well known that the public law requirement of procedural fairness is issue and fact sensitive. So, context is important. The speech of Lord Mustill in R v SSHD ep Doody [1994] 1 AC 531 is often cited as a useful explanation of the principle and its application. That guidance shows that fairness will often require that:

So, it is well established that what constitutes a fair process for a decision relating to the upbringing of a child is not governed by a test directed to what is in the best interests of, or what will best promote the welfare of, the child. This is clearly recognised in the judgments of both Lord Justice Wall and Lord Justice Wilson in Re F. Indeed, at paragraphs 79, 80 and 81 of his judgment Wall LJ says:

“79.

------------ Worse than that, they do not appear to see the need for good management. It is, I think, the arrogance of the agency’s behaviour in this case which is its most shocking aspect.

80.

In saying this, I am prepared to work on the premise that all the members of the agency genuinely believed that what they were doing was in the best interests of the child. I am equally prepared to assume, contrary to the father’s case, that his proposed application to revoke the placement order is hopeless, and would stand no prospect of success. In my judgment, however, these two factors, as I have already indicated, do not make matters any better - if anything, they make them worse. Any system can cope with compliant recipients or recipients who take no action and do not stand up for their rights. Social workers should be trained to deal with and treat properly those who are often irrational and offensive, although neither accusation can be levelled at the father or his solicitors in this case.

81.

I also wish to make it clear that the suggestions which I make in this judgement as representing good practice are, in my view, very basic. Nothing I am going to propose will make excessive or unreasonable demands on hard-pressed and inadequately funded agencies: nothing which follows expects the social workers in question to behave in anything other than a simple straightforward and appropriate fashion.”

However, I accept that in the circumstances of another case the assumptions made in paragraph 80 of Re F may not be appropriate and the merits of the rival positions on welfare may be factors that carry weight as could the interests of the prospective adopters. But, importantly in all cases the interests of an objecting parent and so the existence of a process that gives them a fair opportunity to object to the furtherance of the placement plan for their child by making an application to revoke a placement order will be a factor. And the assumptions made by Wall LJ meant that he and Wilson LJ were proceeding on the basis that the welfare arguments pointed clearly in favour of the continuation of the plan for adoption.

In this case, what the Claimant knew or ought to have known about her rights under s. 24 of the 2002 Act and of the stage reached by the local authority under its adoption plan are relevant to the question whether the decision to place made by the local authority on 4 October 2016 and its implementation was procedurally fair and so lawful.

So, issues arise as to whether the Claimant knew or had been provided with sufficient information to enable her to know that:

It was not asserted by the Claimant that the information provided to her by the local authority did not inform her that the placement was or was likely to be in the near future. And it is common ground that the local authority did not tell the Claimant the timing of the placement plan after it was formulated (on 27 September 2016) or the date of placement when it was decided (on 4 October 2016).

It was not asserted by the local authority that it or anyone else had provided the Claimant with information that meant that at the relevant times she knew or ought to have known that:

I record that I have not forgotten that in her witness statement the Claimant says that she did seek advice from a solicitor and in its skeleton argument the local authority says that this was when she became aware that the child had been “matched” (on 15 September 2016). That may be the correct timing but this is not clear from the witness statement. But it was not asserted that the local authority knew of this or placed any reliance on it at the time. Nor was it asserted that:

So, the central issue is whether it was procedurally fair in all the circumstances of this case for the local authority to proceed without making it sufficiently clear to the Claimant that:

The local authority argues that:

On the facts of Re F by the time the crucial fax dated 17 January 2008 was sent the relevant parent was being advised and knew of the importance of an application to revoke the placement order. Accordingly, the local authority could fairly proceed on the basis that the relevant parent was being advised about and so did not need to be informed about the legal points made in paragraph 29(i) to (iii) or the factual point referred to in paragraph 29(iv) (placement in the near future was likely). These had prompted the relevant fax.

So, in Re F the relevant parent was kept in the dark because the adoption agency did not provide the factual information set out in paragraph 29(iv) and it was this that:

In my judgment, in the context of the important watershed between when a placement that can and cannot be made by a local authority without the leave of the court the reasoning and conclusion reached in Re F show that good practice or a fair process:

A timetable and an analysis of what the Claimant was told and knew at particular times and the reasons why the local authority took the steps that it did is of central importance.

I set out a chronology of events with some comments. A general comment is that, as appears from the very late provision of important documents and so the information in them, the local authority has failed to comply with its duty of candour when explaining its decision-making processes.

That chronology of events can be conveniently divided into the following periods:

The day before the hearing I informed counsel that I would like to hear submissions on whether fairness requires litigants, and in particular litigants in person, to be given an explanation of the ways in which they can challenge orders or the effect of orders as is done, for example, in the Upper Tribunal.I was referred to the guidance notes on completing an application for revocation of a placement order (Form A52) which contain some information on the effect of s. 24 of the 2002 Act. But this explanation is directed to a person who has already identified that his or her next step is to make such an application, and so the effective answer was that their researches indicated that the Family Court and the Family Procedure Rules make no such requirement and so far as they were aware this was not generally done by the court or the adoption agency.

It was confirmed that this had not been done by the local authority in this case. I was not shown its policy and procedures document made under the Statutory Guidance on Adoption or that guidance. I note that paragraph 5.2 of it states:

“5.2

If, before the child is placed, an application is made for the revocation of a placement order, the local authority cannot place the child without the leave of the court. An application for revocation can only be made if the court has granted leave under section 24(2) of the Act, and an application for leave does not in itself prohibit the local authority from placing the child. It is not however appropriate for a local authority to proceed with the placement when it is aware of the application for leave, and an attempt to do so in order to frustrate the birth parents’ application could be challenged in court by an application for judicial review. In Re F (Placement Order) [2008] EWCA Civ 439 the Court of Appeal stated that the appropriate course of action in such a case would be for the birth parents to request the local authority to delay placement until the application could be heard. If such a delay is likely to be prejudicial to the child’s welfare, for example if introductions have already started, the local authority should then apply to the court as quickly as possible for permission to place the child, under section 24(5) of the Act.”

This may have founded the legal advice given by the legal services department to the social workers that the local authority could continue to take steps to place until the Claimant made her application for leave under s. 24 of the 2002 Act.

As appears from my analysis of Re F this summary merits revisiting because Re F makes it clear that the local authority must act fairly in reaching and implementing a decision to place and that it is not only an attempt to frustrate a parent’s application to revoke that will found judicial review. In other words, Re F is not authority for the proposition, as the social workers were advised by the legal department, that before an application for leave to make an application to revoke a placement has been made the local authority can simply get on with its plan for adoption and in effect conduct a race between placement and issue of an application for leave to apply to revoke the placement order.

Indeed, in Re F, such an application for leave had not been issued when the important fax dated 17 January 2008 was sent. It was issued on 21 January 2008 with a return date of 30 January 2008 and the adoption agency placed the child on 29 January 2008.

I acknowledge that paragraph 5.2 of the Guidance could have made it clearer that being “aware of an application for leave” is not limited to being aware that one has been issued and covers the position that one is contemplated.

I have not researched what other general guidance has been given.

It seems to me that it would be sensible for those responsible for issuing guidance concerning the adoption process and for the Family Court (and its Rules Committee) to consider:

I suggest that not only is a race between an under-informed parent and the adoption agency likely to be unfair it is also likely to create significant risks to the achievement of a result that best promotes the welfare of the child and the timely completion of a plan for adoption.

Further, I suggest that a better understanding and appreciation of the difficulties faced by social workers and the difficult decisions they have to take, and so a reduction in uninformed criticisms, will be promoted by explanations of what a fair process involves and an ability to assert that it has been followed in a given case even if the details of that case cannot be disclosed.

An explanation of the relevant tests and of a fair process and confirmation that they have been applied promotes a proper understanding of and confidence in the system by those who are subject to it and those who comment on it.

I am not in a position to express a view on these.

I acknowledge that the existing evidence shows that the final contact was fraught (the local authority’s case is that the mother was reported to have tried to remove her daughter form contact and behaved in a way which was unsettling and frightening to her daughter), in the view of the local authority the Claimant does not accept the harm done to her children by her parenting and the relationship between the Claimant and the social workers (or some of them) is a difficult one.

My information about the change in circumstances relied on by the Claimant is limited to her assertion in the application for leave.

Like the Court of Appeal in Re F I am content to proceed on an assumption that is most unfavourable to the Claimant, namely that the welfare arguments advanced by the local authority are strong and her prospects of obtaining an order revoking the placement order (or otherwise ending the plan for adoption) are poor.

However, I want to make it clear that if I had not reached the conclusion on fairness that I have I would have sought more information on the rival welfare contentions. This is because although I accept that the social workers are expressing the views they have reached, on the limited background information I have, I have not found them convincing. They do not address sibling contact, which the Family Court will have addressed. They focus on short term problems and to my mind they do not explain why the risks taken by pressing ahead with placement when it was known that the Claimant was taking steps to try to revoke the placement order promoted the welfare of the child throughout her life by, for example, assisting the prospective adopters to build a strong and lasting relationship with her from the start of the placement at their home in the knowledge that the course taken would obviously upset the Claimant and so be likely to encourage her to challenge the making of the adoption order.

The reaction to the conversation on 15 September 2016. By asserting that she would be requesting a judicial review the Claimant alerted the local authority to the point (if it was not already aware of it) that notwithstanding the failure of her appeal against the care and placement orders she still wanted to challenge the plan for adoption as and when she could.

The relevant social workers either knew, ought to have known and in any event, ought to have found out whether judicial review proceedings could be taken and what routes of challenge were open to the Claimant under the 2002 Act. The answers were an application for leave to apply to revoke the placement order and judicial review on the basis that the adoption plan was being pursued and implemented by the local authority in breach of its public law duty to act fairly.

I acknowledge that:

But, in the circumstances of this case, I have concluded that before it embarked on the implementation of a placement plan fairness (and in my view, common sense and straightforwardness) required the local authority to inform the Claimant that unless she issued an application under s. 24 of the 2002 Act for permission to revoke the placement order by a certain date it would proceed with its placement plan by placing the child.

This could have been done by the local authority before or when the placement plan was made. If before, the Claimant should have been informed of the placement plan when it was made and in any event, the date chosen for the commencement of the placement plan should have allowed a reasonable time for the Claimant to make her application.

This course of action would have addressed the points on fairness and good practice in making and implementing a decision to place pursuant to a placement order made in Re F having regard the watershed for placement without leave provided for by the 2002 Act. This is because it would have made the Claimant aware of what she could do and the urgency of the situation. Also, it has the advantage that it crystallises whether the threatened challenge at the placement stage will be made and so addresses the risks involved in proceeding with a placement plan knowing that a parent has indicated that he or she still wishes to challenge the adoption process as and when they can.

Other steps may have had the same effects and this is not the only way in which the local authority could have acted fairly. However, its approach of not communicating with the Claimant about what it was doing and she could do was not fair.

The period from 29 September to 5 October 2016. If I am wrong about the earlier stage, from the time that the local authority became aware on 29 September that the Claimant was attempting to issue an application under s. 24 of the 2002 Act the implementation of the albeit speedy placement plan was at an early stage and importantly the child had not visited the home of the prospective adopters. So, a longer timetable would have been practicable. In particular, a delay in the first visit to the prospective adopters’ home from Sunday 2 October to a date that allowed an urgent application to court to be made during the next working week before it took place would have been practical.

The course taken by the local authority (albeit on advice from its legal department) was contrary to a proper reading of the guidance in paragraph 5.2 of the Statutory Guidance on Adoption cited above and had substantial overlaps with the conduct of the adoption agency in Re F that the Court of Appeal described as disgraceful.

At this stage, the local authority could have made an urgent application to the Family Court to enable it to address either an application by the Claimant for leave to apply to revoke the placement order or for leave to place the child for adoption (if it was necessary). Alternatively, the local authority could have informed the Claimant of the placement timetable and so given the Claimant an opportunity to make her application for leave before the placement then planned (subject to possible extension) for Saturday 8 October 2016 took place.

To my mind, if on Friday 30 September 2016 or over the week-end an application had been made to the duty judge for interim relief to prevent (a) placement before the Claimant’s application for leave to make an application to revoke the placement order had been dealt with by the court, and (b) if it had been known about to prevent the first visit to the home of the prospective adopters, that relief should and would have been granted.

In short, by not informing the Claimant of the existence and timing of the placement plan and then, on 4 October 2016, advancing the time for placement, the local authority deliberately for welfare reasons sought to prevent the Claimant from making an application to revoke the placement order by placing the child before the Claimant had issued her application for leave.

The social workers did this on legal advice and so can assert that their decision was not disgraceful but they, and the local authority, cannot rely on the fact of that advice to found the conclusion that its conduct in taking a course designed to thwart an application by the mother to revoke the placement order by placing the child before she had issued it (or her application for leave to issue it) was fair.

In my judgment applying Re F and the well-known principles of procedural fairness this course of action was unlawful because it was not fair,

The local authority argues and it was accepted that we are now where we are and the child has been placed for about 6 months and any application under the 2002 Act would have to take that into account.

It was argued that this claim was not brought promptly because the child had been placed for nearly 3 months when the application for permission to bring these proceedings was first made. In relying on promptness, the local authority pointed out that the mother had instructed her present solicitors on 17 October 2016 and the Circuit judge had raised the issue of the fairness of the decision to place. In its evidence it also pointed out that the child had moved school (but she did this shortly after her move of home at the end of the half-term) and had made friends there, the commitment of the prospective adopters and their issue of their application for adoption at the earliest opportunity to do so. In my view, this confirms that, as was expected, the initial success of the match and introductions has continued over a longer period and such confirmation does not found a convincing argument that the position would have been materially different if this application had been brought in October 2016 and so more quickly after the unfair decision to make the placement. The only difference would have been that, as expected, the placement was going well over a shorter period of time and was likely to lead to an application for an adoption order. In my judgment, this lack of material difference and the practical difficulties faced by the Claimant (albeit that she had a solicitor and I do not know the detail of the timetable resulting in her receipt of legal aid)) in advancing a claim for judicial review mean that she should not be denied relief on the basis that she did not issue her claim promptly.

More difficult is the argument that she should be denied relief because she can advance her case against the adoption order being made within the application made by the prospective adopters for an adoption order that is due to be heard on 12 May 2016.

In support of that argument it was correctly asserted that whichever route to challenging the adoption process is taken the Claimant would have to show first a change in circumstances (a requirement of both ss. 24 and 47 of the 2002 Act) and that adoption would not best promote the welfare of the child throughout her life as this is the paramount consideration and so test for determining whether a placement order should be revoked or an adoption order should be made (see s I(2) and (7) of the 2002 Act).

In addition, it was argued that the Claimant would not now gain any real advantage by being subject to a leave test under s. 24 of the 2002 Act and so one that is not governed by the paramount consideration being the welfare of the child throughout her life. I do not accept that argument because one of the circumstances under that wider leave test would be that the placement decision that led to the child living with the prospective adopters was unfair to the Claimant. I acknowledge that because the Family Court would assess any application for leave under s. 24 by reference to the existing circumstances it can be said that in some ways the difference between the application of the two tests for leave is more theoretical than real. But the difference between them exists and the wider approach under s. 24 favours, or at least has the potential for favouring, the grant of leave if the Claimant can establish a change in circumstances and so a result that the Claimant can address the paramountcy test in the context of an application that, if successful, would result in the revocation of the placement order that would bring the present adoption process to an end.

Other factors in favour of granting the relief sought are:

As I have said, the prospective adopters have not taken part in these proceedings and so I do not know what their stance would be on an application for leave under s. 47 and, in any event, they could not bind the Family Court on its exercise of its discretion to grant leave.

I would however like to express my sympathies for the prospective adopters having to suffer the uncertainties caused by the failure of the local authority to act lawfully.

I should add that it was not argued before me that if the decision to place was quashed the placement would be a lawful placement for adoption or one that could be relied on to found an application for adoption. As I have decided to quash the decision to place I have decided to adopt the solution suggested by Wilson LJ in Re F,at paragraph 114, of declaring that the child has not been lawfully placed for adoption.

The Claimant accepted that it was not necessary for the child to be moved and that she should not be moved pending the resolution of her application to revoke the placement order. Indeed, if it had been necessary to move the child that would have been a powerful factor in favour of refusing the relief sought. The local authority also accepts that a move is not necessary as it can give temporary approval of the prospective adopters as foster parents (see Reg 25A of the Care Planning, Placement and Case Review Regulations 2010) and by doing so the status of the placement rather than the identity of her carers will be changed (see Wall LJ at paragraph 95 of Re F).

As I indicated during the hearing I shall stay this application with liberty to apply to restore it because I do not have sufficient information to quantify any damages.

Such an approach will also enable the parties to further address the procedural requirements of Article 6 having regard to my conclusions on fairness. As to that the approach described by Lord Reed in paragraphs 54 to 63 of his judgment in R(Osborn) v Parole Board [2014] AC 1115 may be of relevance.

For the reasons, I have given the Claimant has established that the local authority acted unfairly and so unlawfully in making the decision to place the child (on 4 October 2016) and so in placing her for adoption in pursuance of that decision and the placement order on 5 October 2016. I shall therefore:

When this judgment is handed down I will consider any further applications for relief, the terms of the relief to be granted and costs.