CoA issues guidance on placement timings after local authority wrongly proceeded with ‘farewell visit’ while father's application for permission to appeal was pending

The Court of Appeal has outlined guidance on placement timings, after finding that a local authority’s decision to proceed with a farewell visit while a father's application for permission to appeal was pending was “plainly wrong” and “contrary to the children's interests”.

In W & Ors (Implementation of Adoption Plan Pending Appeal) [2024] EWCA Civ 837 (25 July 2024), Lord Justice Baker noted that a local authority should take no steps to implement a placement order and care plan for adoption until after the expiry of the 21-day period for filing a notice of appeal against the order.

The case concerned three appeals arising out of care and placement orders made at the conclusion of care proceedings concerning four children: W (a girl, aged rising 9), X (a boy aged 4), Y (a girl aged 3) and Z, (a boy born during the proceedings and now aged 2).

The first appellant was the father of all four children. The second respondent (M1) was the mother of the eldest child, W.

The third appellant (M2) was the mother of the three younger children. The second appellant was the paternal grandmother of all four children.

Baker LJ said: “In the event, the appeals were all compromised – either through concession or withdrawal – on the morning of the hearing. But it became clear that the local authority had taken inappropriate steps – in particular by arranging a farewell visit between the children who were subject to placement orders and their parents and other family members – at a point where it knew that appeals against the orders were in the pipeline.”

The family had been known to social services since W was a small baby, when she was in the care of her mother, M1, who had separated from the father.

Baker LJ noted that there were concerns W was being neglected as a result of her mother's drug and alcohol abuse, and that she was being exposed to domestic abuse in M1's relationship with her then partner.

In November 2020, W moved to live with her father and his then partner, M2, and their child, X, who was then a few months old.

In March 2021, M2 gave birth to her second child, Y. A few months later, the father and M2 separated. The father and W remained in the family home, and M2, X and Y moved to another address.

Meanwhile, children's services became concerned about the welfare of X and Y in the care of M2. In September 2021, X and Y were made subject to child protection plans.

Baker LJ noted that the local authority then became aware that the father and M2 were “continuing to have a relationship”, as a result of which M2 became pregnant again.
In August 2022, the father was arrested for dangerous driving following an incident in which he had been chased by a police car in the early hours of the morning. At the time, W was in the father's car.

Following the incident, on 11 August 2022, the local authority started care proceedings in respect of the three children. On the following day, they were made subject to interim care orders and placed with their paternal grandparents on an “emergency basis”.

The judge noted that on 5 December 2022, the grandparents' care of the children was extended following a positive full assessment of them as long-term carers.
In January 2023, M2 gave birth to Z. Care proceedings in respect of Z were started immediately, and on discharge from hospital he was made subject to an interim care order and placed in a local authority foster placement.

In April 2023, the grandparents decided that they could no longer care for the other three children.

In November 2023, the local authority filed final care plans proposing long-term foster care for W and adoption for the three younger children. Baker LJ said: “The care plans were supported by the children's guardian and by M1 in respect of W. The plans were opposed by the father and by M2 in respect of the three younger children.”

At the final hearing, the father and M2 each applied for an adjournment and for an independent social worker assessment, arguing that their circumstances had changed. Those applications were refused by the judge.

The paternal grandmother attended court in person and also made an oral application to be reassessed as a long-term carer for the three younger children. Her application was dismissed by the judge. That decision was the subject of the first appeal, Baker LJ noted.

At the conclusion of the hearing on 4 April, the judge delivered a third ex tempore judgment approving the local authority's plans and made the care and placement orders sought.

An application on behalf of the father for permission to appeal was refused. The care and placement orders were the subject of the second appeal and third appeals.

On 5 April, the father's counsel sent an email to counsel for the local authority informing them that an appeal was being prepared.

On 3 May, the father's solicitor filed the appeal notice via the Court of Appeal portal. The notice included a request for a stay of the proceedings and
"an injunctive order … against the local authority progressing their current planning in respect of placing the children imminently with their prospective adopters".

On 14 May, the local authority solicitor informed the father's solicitor that the social workers were planning a farewell visit for the children and that, until such time as the local authority was told by the Court to stay the planning for the children, the local authority “intended to continue taking steps to ensure permanence for the children”, Baker LJ noted.

He added: “Meanwhile, there were various email exchanges between the father's solicitor and the Civil Appeals Office concerning difficulties with the documentation which needed to be resolved before the application for permission could be referred to a judge.

“It is unnecessary to set these out in detail, save to note that the solicitor was informed on or around 15 May that the initial bundles filed had been rejected because they did not include sealed copies of the judge's orders.”

On 16 May, the "farewell" visit took place between the children and members of the family.

On 28 May, the grandmother filed a notice of appeal against the judge's refusal of her application for an assessment.

On 4 June, the three children were considered at an adoption matching panel, and matched with prospective adopters.

The applications for permission to appeal were referred to Baker LJ, who granted permission to appeal on both applications.

He stayed the proceedings and directed that “no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals”.

He later observed that “notwithstanding that order”, on 24 June, the local authority's agency decision maker approved the placements.

Also on 24 June, M2 filed an appeal notice against the care and placement orders in respect of X, Y and Z. Permission to appeal was granted to her on the same day.

Both the local authority and the guardian indicated in their position statements that the father's appeal in respect of W “continued to be opposed”.

At the start of the hearing, however, the court were informed that the father no longer wished to proceed with that appeal.

Baker LJ noted: “As the appeals have been compromised in this way, it is unnecessary to make any comments on the merits of the appeal, save to say that, for my part, I consider the concessions made by all parties were well advised.”

Discussing the local authority’s decision to proceed with a farewell visit while the father's application for permission to appeal was pending, Baker LJ warned: “I acknowledge that the local authority was understandably anxious that the plans for placing the children should be advanced without further delay. But their decision to proceed with the farewell visit while the father's application for permission to appeal was pending was plainly wrong and contrary to the children's interests.”

He added: “As the appeals are now being allowed (by consent), contact between the children and their parents and other family members will resume. The children are likely to be confused and distressed by what is happening, and will require very careful support and assistance to come to terms with it.”

Further, he found that the decision by the agency decision maker on 24 June to approve the match was a “blatant breach” of the direction of the Court when granting permission to appeal that ‘no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals’.

Finally, he outlined the following lessons to be learnt from the case:

“(1) A local authority should take no steps to implement a placement order and care plan for adoption until after the expiry of the 21-day period for filing a notice of appeal against the order.
(2) After that point, an application for permission to appeal can only proceed if the proposed appellant is granted an extension of time for filing the notice pursuant to CPR 52,25(1) and Practice Direction C paragraph 4. In practice, given the life-changing importance of placement orders, extension of time is frequently granted if the appeal notice is filed fairly shortly after the appeal period has expired.
(3) In cases where, after the expiry of the 21-day appeal period no appeal notice has been filed and the local authority is concerned that further delay would be contrary to the child's interests, it should inform the other parties that it intends to proceed to take steps to implement the placement order and care plan. Having been given such notice, the onus is then on any party wishing to appeal to file an appeal notice without further delay and seek an immediate stay of the order.
(4) Once an appeal notice has been filed and served on the local authority, but before a decision has been made on the application for permission to appeal and/or on an application for a stay, if the local authority is concerned that delays in the process are having a damaging effect on the child, it should contact the Civil Appeals Office so that consideration can be given to accelerating consideration of the application for permission to appeal. It is not acceptable for the local authority to proceed as if the application for permission to appeal has never been filed.
(5) The local authority and any other respondents to the application for permission to appeal against a placement order must give urgent consideration to whether they should file a respondent's statement pursuant to CPR Practice Direction 52C Paragraph 19(1) and, if they decide to file such a statement, to do so without delay.
(6) If this Court, either before or on granting permission to appeal, grants a stay of the proceedings and directs that no further step be taken with regard to the placement of the children under the placement orders pending determination of the appeals, any step taken in breach of such a direction by this Court is manifestly unlawful and prima facie a contempt of court.
(7) If there is any particular step that the local authority wishes to take to implement the placement order, it may apply to this Court for the stay to be varied. Reasonable requests of this sort are unlikely to be refused provided they do not adversely affect the welfare of the children or prejudice the outcome of the appeal. But it is difficult to think of any circumstances in which it would ever be appropriate for a farewell contact visit to go ahead when an appeal against a placement order is outstanding.”

Elisabeth Laing LJ and King LJ agreed.

Lottie Winson