Legal Update Court Report: Adoption orders

R (On the Application of EL) v Essex County Council [2017] EWHC 1041 (Admin)

This case involved an application for judicial review made by a mother of two children - a boy aged 12 and a girl aged six. Care and placement orders were made by Essex County Council for the girl on the basis of a care plan for adoption (the boy remained in long-term foster care under a care order).

The mother's application for permission to appeal these was dismissed and the child was placed for adoption. The mother then sought a judicial review of that decision on the grounds of procedural unfairness. She argued that the local authority had failed to keep her informed of the key steps in the process, namely, of their intention to place the child with prospective adopters and of the placement timetable.

Furthermore, the local authority placed the child in the knowledge that the mother intended to apply for permission under S24 of the Adoption and Children Act 2002 to revoke the placement order. Before the child had visited the prospective adopters' home, the mother had attended court to complete the application, but the court was not able to process the application because the mother had not enclosed the fee and had not lodged the application correctly.

The court informed the local authority of this so they knew of the mother's intention, but the local authority legal services department advised the social work team to carry on with their plans. Essex then brought forward the date on which the child was to be placed to 5 October 2016, in the knowledge that if the mother resubmitted her application before the child was placed, it could stop placement.

Building on the judgment in Re F (Placement Order) [2008] 2 FLR 550, which sets out the need for a local authority to comply with good practice and fair process in these types of cases, the judge held 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".

By not informing the mother of the legal process and of the existence and timing of the placement plan, and then accelerating the placement, the judge found that the local authority deliberately sought to prevent the mother from making an application to revoke the placement. The judgment concluded that Essex had "acted unfairly and so unlawfully in making the decision to place the child".

The judge quashed the decision to place, declared that the child had not been lawfully placed for adoption and gave directions for the mother's applications to be considered afresh. He also suggested it might be sensible for the Family Procedure Rules Committee to consider providing guidance on what information should be given to parties involved in the adoption process and ways that it could be challenged.

Sufficient information for parents

This case highlighted the need for parent/s whose child or children are being put forward for adoption to have sufficient information to know what the possible next steps are. Parental consent must be considered:

1. When the court is making a decision about whether to grant a local authority a placement order, which would give the local authority the authorisation to place the child with prospective adopters;

2. Then again when the court comes to consider making a final adoption order.

Parents in this situation should be informed that:

  • They can seek leave to apply to revoke the placement order;
  • They can seek an assurance from the local authority they would not place the child before their application was determined and, if leave was granted, before they had applied to revoke;
  • If no assurance was given, they can seek an injunction;
  • If the application was then not made, the local authority could place the child;
  • The parent's next opportunity to challenge the adoption would be under S47;
  • If the local authority was likely to place the child in the near future, details of when the child would be placed should then be provided.

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