Court of Appeal upholds adoption after rare hearing of substantive application for revocation

The Court of Appeal has turned down a rare case in which heard an application by a mother for the revocation of adoption orders for her three children.

In C (Revocation of Placement Orders) [2020] EWCA Civ 1598 Lord Justice Baker said: “This is a very unusual event – so unusual, in fact, that neither counsel nor I have been able to discover any previous reported case in which a substantive revocation application has been considered by the court.”

The case concerned children SC, LC and TC, aged seven, four and two respectively.

For several years the unnamed local authority’s children's services department was involved with the family because of concerns about domestic abuse, substance misuse and poor home conditions.

In April 2018 it started proceedings under s.31 of the Children Act 1989 and in November that year Recorder Davies concluded that the threshold criteria were satisfied including that the children had been exposed to physical assaults and numerous verbal altercations between parents and family members, and both parents had a history of domestic violence as victims and perpetrators.

The recorder made care and placement orders and the children went to a short-term foster placement pending adoption.

Soon after the mother began a new relationship with JA who had three children of his own who spent some their time with the new couple. She and JA then had a baby together.

Baker LJ said: “All parties to the present proceedings agree, and the judge found, that thereafter [the mother] underwent a remarkable transformation in her life.

“Although there were some reports of difficulties between the couple, the relationship has prospered and the mother's lifestyle has settled down.”

Meanwhile adopters were found for the three children and the local authority started to investigate whether proceedings should be started in respect of the baby.

Its pre-birth assessment though reported positive changes in the mother's life, and concluded the baby should remain in her care.

The mother applied to revoke the adoptions orders, supported by the children’s father.

An independent social worker’s report said despite improvements in the mother’s behaviour and lifestyle: “I am not convinced there is any realistic level of support which would guarantee the safety and security of the children moving to live with their mother, at this juncture.”

The social worker doubted the mother could cope with the needs of seven children, which would arise on occasion when JA’s three were present.

HHJ Sharpe dismissed the mother's application and she appealed, after which Baker LJ stayed the adoption process.

The mother said HHJ Sharpe had been wrong in his assessment of her capacity to meet the children’s needs, and lacked expert psychological assessment of the children.

It was submitted that the independent social worker and the judge had ignored or underestimated the fact that the mother and JA regularly cared for four children with the approval of the local authority.

Her counsel noted it would be unusual for a court to find a mother capable of caring for one of her children and three who are not hers, but incapable of providing care for three of her own children.

Baker LJ said: “It is important to consider the way in which the case was argued before the judge, in particular on behalf of the mother.

“There are a number of striking features in the mother's position…it is plain that the mother accepted that, at the date when the placement orders were made in November 2018, adoption had been the right and only option for the children.

“Secondly, it is equally plain that the mother continued to accept that, if the children could not be returned to her care, adoption would be the best option.”

He commented: “This is a highly unusual position for a parent in the mother's circumstances to take. Although it seems that in the course of her evidence the mother may have stated that she considered long-term fostering to be a better option than adoption, this is not how her case was put in closing submissions.”

Baker LJ said it was unsurprising that HHJ Sharpe’s focus had been on whether it was viable for the children to return to their mother and the independent social worker had provided him with “ample evidence addressing the strengths and reservations about the mother's current lifestyle, parenting ability and capacity to care for these three children”.

He found: “I am wholly unpersuaded that the judge's analysis of the risks of placement with the mother and JA was unsupported by the evidence.”

Baker LJ went on: “The judge's conclusion was stark – that the risks that would arise if the children were placed in the care of the mother and JA were on a scale that the outcome would be the ‘near certainty of placement breakdown’ leading to the ‘inevitable’ separation of the children, outcomes which the judge described as ‘potentially catastrophic’.”

Permission to appeal had been granted because Baker LJ was concerned by the lack of consideration of long-term fostering.

“But it is clear from the documents now filed with this court that the option was not advocated by any party, save perhaps in passing by the mother in evidence,” he said.

“In closing submissions, as above, the mother's counsel made it clear that in the event that the children could not be returned to her care, she supported adoption with all the advantages that she identified in terms of permanence.

“In those circumstances, I do not consider that the judge can be criticised for failing to consider in detail the option of long-term foster care.”

Baker LJ concluded: “I recognise that this outcome is a tragedy for the mother who has achieved such a remarkable transformation in her life, on a scale which I have rarely seen in many years' experience of the family justice system.

“The submissions put forward so eloquently on her behalf give me confidence that she will indeed give active support to the adoptive placement in the hope that it will succeed. I am confident that the local authority will consider carefully the offer of support she has made as recorded in counsel's closing submissions to the judge.”

Mark Smulian