Court of Appeal rules judge was wrong to join foster carers to care proceedings

A Family Court judge was wrong to join foster carers with whom a child has been placed since he was a few days old, and who now wish to apply to adopt him, as parties to care proceedings, the Court of Appeal has found.

In R (Care Proceedings Joinder of Foster Carers) [2021] EWCA Civ 875 Lord Justice Baker, with whom Lord Justice Lewis and Lord Justice Carr ageed, said that HHJ Marshall had clearly been seeking a creative solution to a difficulty but had been wrong in law.

An unnamed local authority brought the case over a 14-months-old boy R.

It argued that HHJ Marshall had been wrong to join as parties to the proceedings foster carers Mr and Mrs A, with whom R had lived for more than a year and who now wished to apply to adopt him.

R was made subject to a child protection plan before birth given his mother’s chaotic lifestyle.

He was placed with Mr and Mrs A, but it later became apparent that Ms G, a cousin of the mother, and her partner were interested in adopting R.

Shortly before a hearing in March, Mr and Mrs A filed a notice of application for an adoption order.

Baker LJ noted that under the Adoption and Children Act no such application could lawfully be made because, although R had by then been living with them for over a year they had not given notice to the local authority under s44.

"It was clear, however, that there were now two couples who had expressed an interest in adopting the child,” he said.

"The local authority's position was that the identification of suitable prospective adopters for R was a matter for the authority and that the court should therefore list the proceedings for a final hearing of the applications for a care and placement order as soon as possible.”

But the children’s guardian said further information was required about both sets of prospective adopters before she could make any recommendation.

HHJ Marshall had said: “This is an unusual case in that we have actually got more than one person already identified who may be able to care for the child and is indicating it would be by way of adoption, so it does add something different, in my view, to this case and makes the local authority's application for a placement order one where the court has to consider very carefully whether it is appropriate to leave that in the hands of the local authority or whether, in fact, it is better to determine who is the best person to care for this child and under what orders as part of the care proceedings.

“And if the court were to determine that he should be looked after by either of these carers it may still be the court's view that actually that should be done by way of them making an application for adoption and the court dealing with it that way, rather than leaving it to the local authority to do it through the placement process.”

HHJ Marshall proposed to add Mr and Mrs A as parties to the proceedings as there was otherwise no one to put their case before the court.

Baker LJ said: “It seems from the position statements and case summary filed for the hearing, and is confirmed by the transcript, that the suggestion to join Mr and Mrs A as parties to the proceedings came from the judge herself, rather than any of the parties.

“There was no opportunity for consideration of the relevant statutory provisions or case law.”

The local authority appealed on the grounds that HHJ Marshall erred in law in joining the foster carers as parties, was wrong not to list the local authority application for a final hearing and was wrong in law to direct the local authority to complete an adoption assessment of the family members and file it within the care and placement proceedings.

The local authority submitted that joining Mr and Mrs A to the care proceedings “offended against the statutory scheme and was contrary to the case law”.

It also argued that Mr and Mrs A and Ms G and her partner should not be provided with confidential information about each other and about the mother, which would be included in the court bundle that HHJ Marshall had said both should receive.

Baker LJ said: “I accept…the judge's decision to join the foster carers as parties to the proceedings was wrong in principle and wrong in law.”

He went on: “I do not accept the submission that the foster carers should be joined as parties to enable them to have a say in the decision-making process nor that joining them as parties will enable the guardian to evaluate the realistic options for the child so as to advise the court whether this is a case where only adoption will meet his welfare needs.

“The guardian is well able to carry out all necessary inquiries without Mr and Mrs A being joined as parties.”

Baker LJ explained: “I do not intend to be unduly critical of the judge who was plainly looking creatively for a way to resolve all the issues as quickly as possible.

“Nor am I being critical of counsel who were faced with an unexpected turn of events in the course of the hearing. I can well understand the judge's wish to short-circuit the process and avoid further delay, but the course she adopted of joining the foster carers to the care proceeding was plainly wrong in law.”

He said the correct course would have been to list the local authority's application for a care order for a final hearing. At that point, the judge could have considered whether adoption in principle was the right option, and if so make a care order and consider Mr and Mrs A's application alongside the local authority's application for a placement order.

But he rejected the local authority's submission that the foster carers' application was “an impermissible attempt to circumvent the statutory scheme”.

He said nothing prevented a person lawfully entitled to apply for adoption from doing so before or after the local authority has applied for a placement order.

The Court of Appeal set aside the relevant parts of HHJ Marshall’s order.

Mark Smulian