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Court of Appeal highlights need for early legal advice where adoption placements near point of breakdown

The first reported occasion on which the courts have had to consider whether prospective adopters gave notice of their wish to return the child highlights the need for early legal advice, the Court of Appeal has said.

The background to the case of Prospective Adopters v Sheffield City Council [2020] EWCA Civ 1591 was that two children, G (9) and M (7), who had been placed for adoption by a local authority, moved in July 2020 from the care of their prospective adopters and returned to foster care.

The placement had been unsettled from an early stage and there had been a number of serious incidents.

In August, the prospective adopters asked for one of the children, M, to be returned. When the local authority refused, they issued adoption proceedings and also applied for an order for M’s return.

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In a decision on 21 October 2020, Mr Justice Mostyn dismissed the application for a return order and struck out the adoption proceedings.

The judge agreed with the local authority’s contention that the prospective adopters had given notice under section 35(1) of the Adoption and Children Act 2002. The consequence of that was that the placement for adoption had come to an end. The prospective adopters had no right to apply for an adoption order without first obtaining the leave of the court.

The prospective adopters, having appealed from both decisions, no longer challenged the dismissal of the application for a return order and their appeal in that respect was dismissed. However, they maintained their appeal from the striking out of the adoption proceedings because they wished to adopt M or at least to have a voice in the planning for her future.

The grounds of appeal were that:

(1) Mostyn J made a material error of fact and law in concluding that the placement had been terminated by the prospective adopters.

(2) The judge erred in law in determining that the local authority was entitled unilaterally to terminate the children's placement during a period of respite care without either:

(i) Giving notice pursuant to section 35(2) ACA 2002; or

(ii) Issuing proceedings seeking an emergency protection order or an interim care order.

The effect of this error was that prospective adopters who agreed to a child being accommodated for respite purposes were deprived of the procedural safeguards, imposed by Statute and Article 8 ECHR, which would otherwise have been available to them.

(3) In any event, the judge erred in law in determining that the local authority was able unilaterally to terminate the children's placement with the Applicants on the basis of a 'tacit decision' and without giving express written notice to them of this step.

On ground 1, Lord Justice Peter Jackson said the only reasonable conclusion to be drawn from the evidence in the case was that the prospective adopters did not give notice under s.35 ACA 2002. Mostyn J’s decision that notice was given by the prospective adopters was not one that was reasonably open to him.

The Court of Appeal judge also allowed the appeal under grounds 3 and 2(i) and dismissed the appeal under ground 2(ii).

Lord Justice Peter Jackson said the outcome made it unnecessary for the prospective adopters to seek the leave of the Family Court to make an application to adopt M. Their application would be listed for early case management before a judge of the Family Division.

He added: “I express the hope that a speedy and effective way can be found to resolve the predicament that these two children are in, perhaps by instructing a child psychiatrist with experience in adoption matters to advise not only on M's situation but also on G's. It is important that the children's situation is not distorted by the fact that only one of them will be subject to proceedings.”

The judge said the appeal had shown that the adoptive placements of both children subsisted at the time of the hearing before Mostyn J. The only development since then was that it was said on the last page of the local authority's appeal skeleton argument that ‘The local authority does not agree to return either G or M to the care of the prospective adopters and now gives notice under s35(2).’

That was not a satisfactory way to deal with service of a statutory notice, Lord Justice Peter Jackson said. “Proper steps should now be taken to resolve, and if possible agree, the children's status.”

Lord Justice Peter Jackson said the experience of this case underlined two things:

(1) The vital importance of early specialist support for adoptive placements before they reach the point of breakdown. Knowledge of the insights contained in the psychological assessments that were commissioned after the children were removed would surely have helped the As and the social workers, and through them the children, and given their joint adoptive placement a better chance when it needed it.

(2) The need for early legal advice. In this case the crisis on the ground was bad enough without the accompanying legal uncertainties. We were told that the local authority legal department was not consulted until 20 August. It cannot be assumed that the legal advice will immediately produce the right answers, but it should at least identify the right questions. It is not reasonable to expect prospective adopters to take the lead. Two adoption agencies, the local authority and the As' agency, were involved in the placement of these children. The onus was on them to clarify the legal position so that everyone should, so far as possible, have known where they stood.

Lord Justice Baker and Lord Justice Lewis agreed.

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