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Placement for adoption and fairness

Adoption iStock 000010273534XSmall 146x219A recent High Court ruling that quashed a placement for adoption makes important reading for all local authorities, writes Sarah Tyler.

The case of R (On the application of EL) v Essex County Council [2017] EWHC 1041 was a judicial review heard by Mr Justice Charles, who quashed a placement for adoption because the decision to place the child was procedurally unfair. He highlighted what litigants ought to be told about challenging the adoption process, and at present this represents good practice.

The mother’s claim that the decision to place her daughter for adoption was procedurally unfair was based on:

  • The local authority failed to keep her informed of key steps in the process including their intention to place the child and of the placement timetable;
  • The local authority placed the child in the knowledge that the mother intended to apply for permission under section 24 ACA 2002 to revoke the placement order, such application only being possible before the child is placed. Thus the local authority frustrated her application.

Charles J considered the case of Re F (Placement Order) [2008] 2 FLR 550 which highlights the need for local authorities to comply with good practice and fair process, and reminds us of the requirements for procedural fairness and that the test is not a welfare test. The requirements are (as per Lord Mustill in R v SSHD ep Doody [1994] 1 AC 531):

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  • The person affected by a decision of a public authority is given the opportunity to make representations or to take steps in respect of that decision before it is made or acted on, and
  • The affected person is given information so that he is aware of how and when he needs to take those steps.
  • This knowledge can relate to the relevant legal or administrative process or to facts relating to when a decision is to be made and put into effect.

Mr Justice Charles decided that what the mother knew, or ought to have known, about her rights under section 24 ACA 2002, and of the local authority’s placement plan was relevant to whether or not the decision to place and implementation of the placement plan were procedurally fair and lawful.

Charles J invited the Family Court Rules Committee and those responsible for issuing guidance to consider:

– what information should be given to parties about the stages of the adoption process and ways it can be challenged

– what guidance should be given on Re F and what fairness requires in the context of a decision to place for adoption

It may be that guidance will be forthcoming in due course. In the interim, Mr Justice Charles decided that the mother needed sufficient information to know what the next steps were [28]. Therefore, at present, it is advisable for local authorities to set out to a parent whose child has been subject to a placement order:

  • That there is a placement plan, and what the timings are of that placement plan.
  • The local authority will proceed with placement unless the parent issues an application under section 24 ACA 2002 but this application must be made before the child is placed.

Sarah Tyler is a barrister at Coram Chambers.

Nick O’Brien from Coram Chambers represented Essex County Council in this case.

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