Prospective adopters and return of the child to the local authority

Francesca Massarella examines a recent mandatory injunction application by prospective adopters for the return of one sibling back to their care pursuant to the Human Rights Act 1998.

In March 2019, the Family Court granted a placement order in favour of Sheffield City Council for two sisters, G aged nine, and M, aged seven. The care plan was for adoption and in September 2019 the children were placed with the prospective adopters.

Unfortunately, the placement was unsettled from the start, which was amplified by lockdown being imposed in England in March 2020. There were a number of very serious incidents, including: G assaulting M in a sexual manner on at least three occasions; G lashing out at M, causing emotional and physical harm; G deliberately destroying important items of M’s, including presents from their birth family; and G self-harming on multiple occasions, including threatening to kill herself. M also self-harmed.

The prospective adopters asked for G to be placed elsewhere because they felt they could not keep M safe from G or G safe from herself. The local authority refused to separate the siblings without further assessments. The prospective adopters did not agree to the idea of respite care because they wanted "a solution, not a temporary fix".

On 21st July 2020, G’s state had worsened so far that an ambulance needed to be called, which resulted in the prospective adopters sending an email to the local authority. This stated: "I am afraid that is it…Please come and get the girls… We are no longer able to continue." The children were taken into foster care in separate homes the next day but contact between the girls and the prospective adopters continued. The prospective adopters sent multiple emails from 14th August 2020 onwards, requesting that M be returned to their physical care.

In Prospective Adopters v Sheffield City Council [2020] EWHC 2783 (Fam) (Mostyn J) the court set out the test for whether a child subject to a placement order can be returned to the local authority under S.35 Adoption and Children Act 2002 (ACA). This provides that notice must be given under s.35(1) by the prospective adopters to the local authority of their wish to return the child. The court held at paragraph 17 that "the test for what constitutes a notice under section 25 is a question of law but whether a specific communication satisfies that test is a question of fact".

The prospective adopters applied for a mandatory injunction for M to be returned to their care on the basis that they withdrew their consent to M being accommodated by the local authority and the accommodation was therefore unlawful. They did not argue such in respect of G. They submitted that they did not give notice in their initial email to the local authority for the purposes of s.35(1) ACA and that this only constituted them consenting to the children being temporarily accommodated.

The court held that the email of the 21st July 2020 did constitute notice under s.35 ACA and dismissed the application under the Human Rights Act 1998 for the following reasons:

1. The local authority told the prospective adopters repeatedly that it would not recommend the children being separated. The email sent by the prospective adopters indicated that they had reached a conclusion that it was best that they cared for neither of the children rather than continuing to try to care for both of the children together.
2. The email sent by the prospective adopters had a tone of permanence.
3. The prospective adopters had previously explicitly rejected the concept of respite care.
4. Whilst the local authority did continue to involve the prospective adopters in decisions about the children, this does not change the fact that they gave notice in their email dated the 21st July 2020.
5. There is little weight to the argument that the decision was supposedly temporary due to the children being returned with only a few days’ worth of clothes.
6. The prospective adopters argue even now that G’s placement with them has not come to an end, yet under no circumstances did they want G back and accepted that she should be placed elsewhere.
7. The submission that a social worker had represented to the prospective adopters that they continued to share parental responsibility after 21 July 2020 was unpersuasive.
8. The submission made by the prospective adopters that the local authority retained M unlawfully was rejected because "the local authority has retained M pursuant to its overarching parental responsibility".

The court concluded by giving a recommendation that in future, "the decision to terminate the placement should be explicitly set out in a reasoned letter rather than being made tacitly".

Francesca Massarella is due to begin pupillage at Spire Barristers in September 2021.