Sir James Munby, President of the Family Division :
- This is an appeal from a judgment and order of Her Honour Judge Troy on 22 May 2015. The judge was sitting in the Family Court at Leeds hearing care proceedings in relation to a little boy, T.
The facts
- The facts can be stated quite shortly. T was born on 20 November 2014. T's parents signed an agreement in accordance with section 20 of the Children Act 1989 the next day, 21 November 2014, and T was placed the same day with a married couple I shall refer to as Mr and Mrs X.
- Mr and Mrs X had been approved as adopters by the local authority on 14 November 2014. Shortly before T's birth, on 17 November 2014, they were invited by the local authority, and agreed, to care for T, on his birth, as foster carers with a view to adopting him if adoption was required: what is known as an early permanence placement. T, as I have said, was placed with them on 21 November 2014. The local authority commenced care proceedings, with a plan for adoption, on 3 December 2014. Mr and Mrs X signed an early permanency placement agreement the same day. On 18 December 2014 an interim care order was made. It remains in place. T remains with Mr and Mrs X.
- On 29 January 2015 T's paternity was established by DNA testing. At an adjourned case management hearing the next day, 30 January 2015, the father indicated that he did not wish to be assessed as a carer for T, but he put his parents forward for assessment. An initial viability assessment of the paternal grandparents was completed on 13 February 2015. It was positive. The full kinship assessment of the paternal grandparents was completed on 1 May 2015. Again, it was positive. Following a professionals' meeting on 8 May 2015, the local authority told Mr and Mrs X that it had abandoned its plan for adoption in favour of a placement with the paternal grandparents under a special guardianship order. This plan is supported by both the mother and the father, who accept that neither of them is able to care for T. The position of T's guardian is that the court does not at present have before it the evidence upon which to make a proper evaluation of what the guardian says are the two realistic options: a family placement with the paternal grandparents or adoption by Mr and Mrs X.
- On 20 May 2015 Mr and Mrs X issued an application for leave to apply for an adoption order (see sections 42(4) and 44(4) of the Adoption and Children Act 2002). The application came before Judge Troy on 22 May 2015. By then the care proceedings had been on foot for a little over 24 weeks. She made two orders. In one she gave Mr and Mrs X leave to apply for an adoption order. In the other she joined them as parties to the care proceedings. In accordance with directions she gave on that occasion, the matter came back before Judge Troy for directions on 1 June 2015. The paternal grandparents indicated their wish to apply for a special guardianship order (their formal application followed on 19 June 2015). Judge Troy joined them as parties to the care proceedings and consolidated the care proceedings and the adoption proceedings. She extended the time limit for the proceedings (see section 32(5) of the 1989 Act) to 34 weeks.
- On 22 May 2015 Mr and Mrs X gave the local authority notice in accordance with sections 44(2) and 44(3) of the 2002 Act.
The appeal
- At the hearing on 22 May 2015, Judge Troy refused the local authority's application for permission to appeal. On 11 June 2015 she refused the father's application for permission to appeal. The father filed his appellant's notice on 12 June 2015. His grounds of appeal limited his case to an attack on the judge's order joining Mr and Mrs X as parties to the care proceedings. Permission to appeal was given by McFarlane LJ on 3 July 2015. He said:
"Whether the proposed appeal has a reasonable prospect of success or not, the issues raised are likely to arise in other cases and justify consideration at appellate level."
On 21 July 2015 the local authority filed a respondent's notice seeking to challenge the order giving Mr and Mrs X leave to apply for an adoption order.
- The father's appeal and the local authority's application for permission to appeal came on for hearing before us on 30 July 2015. We gave the local authority permission to appeal.
- The father was represented by Mr Lewis Donnelly, the paternal grandparents by Miss Sara Anning (who, together with her solicitors, was acting pro bono) and the local authority by Mr Will Tyler QC and Miss Victoria James. They made common cause. The mother had filed a skeleton argument supporting the father's position in all respects but, properly conscious of what Lord Neuberger of Abbotsbury MR had said in Oxfordshire County Council v X, Y and J [2010] EWCA Civ 581, [2011] 1 FLR 272, paras 45-46, asked to be excused from attending the hearing. Mr and Mrs X, represented by Miss Pamela Scriven QC and Miss Emily James (appearing pro bono), and the children's guardian, represented by Miss Deirdre Fottrell QC and Mr Martin Downs, made common cause in opposing both appeals.
Early permanence placement
- Before proceeding any further it is appropriate to say something about early permanence placements.
- The concept is not new, though it has only recently been put on a secure statutory footing. So far as material, section 22C of the Children Act 1989 provides that:
"(9A) Subsection (9B) applies (subject to subsection (9C)) where the local authority are a local authority in England and
(a) are considering adoption for C, or
(b) are satisfied that C ought to be placed for adoption but are not authorised under section 9 of the Adoption and Children Act 2002 (placement with parental consent) or by virtue of section 21 of that Act (placement orders) to place C for adoption.
(9B) Where this subsection applies
(b) the local authority must consider placing C with an individual within subsection (6)(a) [that is, "an individual who is a relative, friend or other person connected with C and who is also a local authority foster parent"], and
(c) where the local authority decide that a placement with such an individual is not the most appropriate placement for C, the local authority must consider placing C with a local authority foster parent who has been approved as a prospective adopter."
The key provision is section 22C(9B)(c).
- This is supported by statutory guidance issued in July 2014 by the Department for Education, Early permanence placements and approval of prospective adopters as foster carers: Statutory guidance for local authorities and adoption agencies. We were also referred to two sets of guidance issued in June 2013 by Coram and BAAF, Fostering for Adoption: Practice Guidance and Fostering for Adoption: Becoming a Carer.
- The Introduction to the Statutory guidance summarises matters as follows:
"1. There may be cases where a local authority identifies that, based on the evidence available and on its assessment of the case, the long term permanence plan for a named child is likely to be adoption. The local authority is likely still to be considering other outcomes for the child, and may still be attempting rehabilitation with family, although this will be thought highly unlikely to succeed, and adoption is the most likely outcome. The local authority will already have considered wider family and friends as potential carers for the child and concluded that they are unlikely to be able to care for the child. It is possible that suitable family members may be identified or come forward after the child has been placed, and the authority will need to consider them should that occur. This is because the local authority has a continuing duty to place the child in the most appropriate placement for that child (see section 22C of the Act).
2. In some cases the ADM [agency decision maker] may have decided that the child's plan should be adoption, but the agency has not yet obtained a placement order or have parental consent to place the child for adoption.
3. A placement made following consideration under section 22C(9B)(c) of the Act (a section 22C(9B)(c) placement) with carers who are both approved prospective adopters and approved foster carers is a fostering placement under the Act and one which may lead to adoption by those foster carers. The advantage of this type of placement is that the child will be placed with foster carers who, subject to a placement order being made, or parental consent, are expected to go on to become the child's adoptive family. Delay in finding a permanent family for young children who have already experienced neglect early on in their lives may have a profoundly damaging effect on their development. This type of placement has potential to reduce this delay and the damage caused significantly.
4. The carers might be dually approved at the outset or they might be approved prospective adopters who have been temporarily approved as foster carers for a named child under regulation 25A of the 2010 Regulations.
5. It is possible that a section 22C(9B)(c) placement may not lead to adoption, for example because the child's plan changes where rehabilitation with the birth family is successful, because suitable family or friends come forward or because the court does not agree to make a placement order. This may mean that the child returns home or is moved to another permanence arrangement. But, for the vast majority of children who are in a section 22C(9B)(c) placement, progression towards adoption will be the anticipated outcome.
6. The child therefore benefits from an early placement with their eventual permanent carers. Local authorities will need to ensure that people who are willing to care for a child in this way are fully aware that the placement may not lead to adoption, and that they have been given appropriate information and training so that they understand their role and legal responsibilities as foster carers and ongoing support once the placement has been made."
I should also refer to what is said in paragraphs 10 and 28:
"10. If a family or friend carer is identified after the child has been placed, the local authority still has a duty to assess their suitability to care for the child, and remains under the continuing duty (section 22C(5) of the Act) to place the child in the most appropriate placement available. So if that relative or friend can offer the most appropriate placement, the local authority must move the child.
28. Section 22C(9A)-(9C) of the Act does not bring forward the point at which the child is removed from his or her birth parents, or affect the process by which that decision is made. Nor does it affect the process by which the decision to place him or her for adoption is made by the court or affect the rights of the birth family in that regard. If there is no parental consent, the decision whether to authorise the local authority to place the child for adoption remains one for the court at the placement order stage, and the birth parents retain their right to be involved in the process and to have full account taken of their views and wishes, as required."
- Fostering for Adoption: Becoming a Carer includes the following:
"A Fostering for Adoption placement will only be made where there is clear evidence to the local authority that there is very little likelihood that the birth parents can resolve their problems or that other family members can take care of the child.
Where it is the right thing to do, a Fostering for Adoption placement has
significant advantages for the foster carers/ adopters in enabling them to establish a relationship with the child at an early stage
But it does mean living for a time with uncertainty about the final outcome and it may mean, very occasionally, that the child will move back home or to another placement and that can be very distressing for the Fostering for Adoption carers."
- This point is picked up by the local authority's Early Permanence Placements: project resource pack issued in April 2015 (that is, after Mr and Mrs X had signed the early permanency placement agreement on 3 December 2014). I refer to pages 5 and 30:
"The emotional uncertainty associated with possible and actual placement moves is held by the adults rather than experienced by the child in placement moves. In other words the adults take the risks.
The ultimate risk to the prospective adopters is that the baby they are fostering will be returned to birth family/parents and that they will have to endure the loss of the baby who they hoped to adopt."
- The early permanency placement agreement signed by Mr and Mrs X made clear that:
"This is a temporary fostering placement until a decision in the court regarding the child's long term plan whether that is rehabilitation with birth parent/family member or for the child to be adopted."
The judgment
- Having set out the facts and explained the nature of early permanence placements, Judge Troy considered the relevant provisions (sections 42, 44, 47 and 52) of the Adoption and Children Act 2002. She continued:
"I have not been referred to any guidance from the higher courts as to the proper approach to be taken in determining applications by prospective adopters temporarily approved as foster carers under the early permanence placements provisions for leave to apply for an adoption order."
She then considered the decisions of the Court of Appeal in M v Warwickshire County Council (M and another intervening) [2007] EWCA Civ 1084, [2008] 1 WLR 991, and Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959. She continued:
"Therefore, although if this application for leave is granted there will be a delay for T in determining where his long-term future lies and although any delay is not in T's interests, delay in itself does not determine whether this application has a real prospect of success or should be allowed. I take into account that it would rarely be a proper exercise of my discretion to allow the inevitable delay to determine this application if there is a real prospect that an adoption order may be made."
- Judge Troy then summarised the parties' submissions. First, Mr and Mrs X:
"Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular. It is their case that, if in determining their application for leave to apply for an adoption order, the court is to take into account information filed in the care proceedings about the paternal grandparents and the care they could provide to T, that information should be disclosed to them so that they can consider it and make submissions about it."
Next, the local authority:
"The local authority, supported by both parents, invites the court to determine the application simply on the basis that the local authority has identified a family placement as being suitable for T, and that, taking into account the basis upon which T was placed with Mr and Mrs X, namely as foster carers, they are not entitled to information about the family placement and should not be granted leave to apply to adopt T as a matter of principle."
She added:
"The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents. It is the local authority's case that no such information is required to determine the application."
Finally, the guardian:
"The children's guardian invited the court to give careful consideration to both options for placement of T in the following terms
:
"It may be that on the basis that Mr and Mrs X have been approved as adopters, the court would feel able to say that they have a reasonable prospect of success such that they can now be granted leave to apply to adopt. This would provide for a further hearing at which the court could determine the relative merits of the placement options. Alternatively, the court may feel that the court cannot determine the question of leave until it has before it all the information relevant to the merits of the placements.""
- The local authority had made clear that its intention was to present to the court as the only option, at what was then intended to be the final hearing on 1 June 2015, its plan for T's placement with the paternal grandparents. As Judge Troy commented:
"The position taken by local authority
means
that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T, but only on the basis that there is a family placement identified by the Local Authority as suitable for him."
- Judge Troy then turned to consider In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, M v Blackburn with Darwen Borough Council and others [2014] EWCA Civ 1479, [2015] 1 WLR 2441, and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273. In the context of that analysis she recorded the guardian's contention that:
"in determining whether to make an order in respect of T and, if so, what the order should be, it would be necessary for the court to undertake an analysis of each of the options available and to assess each of these options in the context of the others, as the decisions of the Court of Appeal in the cases of Re B-S and Re R make clear."
- Approaching her conclusion, Judge Troy said:
"By virtue of the nature of this application by Mr and Mrs X, a freestanding application for leave to apply for an adoption order, I have no information about the paternal grandparents or their ability to meet the needs of T, other than being made aware by the local authority that it has filed a care plan providing for T to be placed in their care. The children's guardian has not filed a report in the care proceedings in respect of T and in these proceedings it has been explained that the children's guardian has not reached a concluded view about what the best interests of T throughout his life require but considers that the court should be in a position to undertake an analysis of the two realistic options now available for T, that is placement with his paternal grandparents or placement with Mr and Mrs X, before reaching a decision. No comparative analysis of these two options has been undertaken in the care proceedings."
- Judge Troy's decision and reasoning are to be found in the following passages in her judgment:
"The benefits and detriments of an adoption order in respect of T would have to be considered alongside the welfare analysis of the other options for him and the very significant benefit to T of a placement with members of his birth family, in this case his paternal grandparents, would form a key part in that analysis and the assessment of the available options for T which would follow.
I take into account the significant delay in determining the applications in respect of T which will be the result of granting of leave to apply for an adoption order in this case but I balance against this that, in my judgment, T's welfare demands that the court should be in a position when considering what orders should be made in respect of him to assess the relative merits of each realistic option available for T before making a final order in his case and I endorse the views of the children's guardian in that respect. The fact that T was placed with Mr and Mrs X as foster carers subject to the agreement I have seen does not mean that he should be deprived of the opportunity for this assessment to be undertaken and I do not accept that it would be "wrong" as has been submitted, for the court to assess which option for care best meets T's interests because the paternal grandparents have already been assessed by the local authority as being suitable carers for him.
Despite the fact that the option of a family placement is available for T in this case and taking into account the decisions of the Supreme Court and the Court of Appeal emphasising the benefits of such a placement for any child and the requirement that the court gives proper consideration to the making of such a placement, I am unable in this case to find that there is no real prospect that the court will determine that the welfare of T throughout his life requires that he is made the subject of an adoption order or
that the prospects of success in this case are fanciful and not realistic. I therefore grant leave to Mr and Mrs X to apply for an adoption order in respect of T.
However, there must be an equally real prospect in this case that he will be placed in the care of his paternal grandparents because of the benefits which they may be able to offer him, which include the fact that a placement with them would be a placement in the birth family. So although I grant leave for an application for an adoption order to be made, Mr and Mrs X, the mother, the father and the paternal grandparents must not assume that I have decided that T will be made the subject of an adoption order. I have not carried out the exercise balancing what Mr and Mrs X can offer against what the paternal grandparents could offer. I do not have any information about the paternal grandparents. Before determining the applications, that balancing exercise will have to be undertaken. So this is not a final decision in respect of T. It is merely a determination that the two options for his care should be before the court."
- Judge Troy was invited to clarify certain aspects of her judgment. She did so at the hearing on 11 June 2015. There is no transcript, but we have been shown a note agreed between the advocates though not, it would seem, approved by the judge. According to this note, Judge Troy said that:
"In relation to party status, it was necessary for Mr and Mrs X and the grandparents to be involved in the proceedings to allow the court to consider each option so that they could hear all the evidence, make submissions and allow the court to make a proper decision as to which option best meets the needs of T."
The grounds of appeal and the parties' submissions
- As I have said, the father, the paternal grandparents and the local authority made common cause. In large measure their submissions were very much to the same effect and made the same points. I shall take them together.
- Their submissions can be summarised as follows:
i) Judge Troy was wrong to give Mr and Mrs X leave to apply for an adoption order. Their application was premature and should not have been considered until such time as the court had determined that T's future welfare required his adoption rather than a family placement. That process has not been in any way altered by the implementation of the statutory early permanence placement scheme. Mr Tyler adds that, if the appeal against Mr and Mrs X's joinder is successful, their application for an adoption order will be left hanging in the air. So, he submits, on that ground also the appeal on this point should succeed.
ii) Furthermore, Mr and Mrs X had failed to demonstrate that they had a real prospect of success in relation to an application for an adoption order, and that T's welfare required their being given leave to apply for, such an order.
iii) Judge Troy was wrong to join Mr and Ms X as parties to the care proceedings and failed to consider the procedural ramifications and consequences of doing so.
iv) Judge Troy failed to have sufficient regard or attach appropriate weight to the authorities about the primacy of family placements.
v) Judge Troy failed to have sufficient regard or attach appropriate weight to the fact that Mr and Mrs X were temporary foster carers and that in the early permanency placement agreement dated 3 December 2014 they had expressly agreed that their adoption of T would be contingent on his not being rehabilitated to his family.
vi) On the contrary Judge Troy gave excessive weight to the facts (a) that Mr and Mrs X were approved adopters and that the placement had been made by way of an early permanence placement, (b) that they had cared for T for 6 months and (c) that there was evidence of attachment between T and them.
As the argument developed, it became apparent that there was a degree of overlap in these submissions.
- By way of elaboration, a number of points were made which it is convenient to take together.
- Mr Tyler submitted that it is wrong in principle to allow state-sanctioned carers to acquire the right to set themselves up against a family member as a potential permanent carer for a child simply by virtue of an unexceptional period of time caring for an unexceptional child in an unexceptional case. Particularly is this so, he says, where, as here, the aspiration of the foster carers is the non-consensual adoption of a child outside his birth family. As the father put it in his grounds of appeal, Mr and Mrs X are the product of the care process and should not be part of it. According to Mr Tyler, there is simply no place in the statutory process under Part IV of the 1989 Act for foster carers who are not otherwise entitled to participate by virtue of family status, statutory responsibilities, or relevant social work or other expertise.
- Mr Donnelly submitted that the analysis of adoption as an option in care proceedings is limited to consideration of adoption in principle and does not involve an assessment of the individual merits of particular proposed adopters. Least of all, he submitted, should care proceedings become, as would be the consequence of Judge Troy's order, an arena in which prospective adopters should be enabled to probe alleged deficits in a family placement and compare it unfavourably with what they could offer. It is the children's guardian whose task it is to scrutinise the local authority's plan and, if appropriate, criticise it and invite the court to reject it. To like effect Mr Tyler submitted that the proper people to test the local authority's assertions, assessments and care plans, in order to assist the process of quasi-inquisitorial judicial critical analysis in the care proceedings, are the parents and the child(ren), the latter through the children's guardian. Miss Anning made much the same point when she submitted that the very idea of a competition between the birth family and prospective adopters at the stage of deciding whether a child should be placed for adoption is to shift the focus away from a true analysis of what is fundamentally in the child's best interests in favour of the competing views of the adults. And, she suggested, it ran the risk of a simple comparison as to which placement would be better for the child, the very thing that all the jurisprudence demonstrates is not the right question (see, for example, Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, referred to below).
- Accordingly, it was submitted, Mr and Mrs X's joinder to the care proceedings serves no useful purpose; it does not provide a means for the court to consider an option that it otherwise would not. Moreover, there is, they say, no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed. If and to the extent that the court needs to consider adoption as an alternative to a family placement all it needs to know is that T has the best prospects of being adopted given Mr and Mrs X's wish to adopt him.
- As Mr Donnelly put it, the fact that this was an early permanence placement did not give Mr and Mrs X an elevated status, nor did that (or any of the other matters) create a 'status quo' requiring the kind of balancing of 'status quo' and 'family' contemplated in Re M'P-P (Children) [2015] EWCA Civ 584 (see below). In reality, as Mr Tyler put it, the asserted 'status quo' and attachment in the present case do not differ in any significant way from what exists in a large proportion of similar care cases where a child has been successfully fostered for a short, interim, period.
- Mr Tyler conjured up the spectre of social engineering. He suggested that parents in care proceedings will be very much less likely to agree to the potential benefits of a fostering for adoption placement. He pointed to the inevitability of delay given the requirements of sections 42(4) and 44(4) of the 2002 Act.
- Thus the arguments in support of the appeals. I can take the submissions of Mr and Mrs X and the children's guardian more shortly.
- Essentially, Miss Scriven and Miss Fottrell submitted that Judge Troy was right to decide as she did and for the reasons she gave. There are, they said, two realistic options before the court and Judge Troy was right in her approach and in recognising that the court, in the light of the statutory framework and the authorities, had to evaluate both the realistic options and to assess each in the context of the other. How, Miss Scriven asked rhetorically, was the court to do this, as she put it, balancing the competing arguments for and against those two options, unless Mr and Mrs X were able to participate in the care proceedings and make representations?
- Miss Scriven submitted that the local authority's approach was far too rigid and absolute, and inappropriately minimising of Mr and Mrs X's role. As the guardian put it, whatever the strength of the arguments in favour of a family placement, it cannot be said that Mr and Mrs X's application has no prospect of success. After all, as Miss Scriven pointed out, Mrs X is the only mother T has ever known. What is required is for each case to be looked at in a case-specific way. Reliance was placed on what McFarlane LJ had said in Re M'P-P (Children) [2015] EWCA Civ 584, paras 46-50 (see below). Reliance was placed on what was said to be the reality that T and Mr and Mrs X have, as a result of Mr and Mrs X caring for T, an established family life together. Mrs X, it is said, is at the centre of T's life. Miss Fottrell said that Mr and Mrs X are de facto parents and if T is to be removed from them they need to be heard, particularly if what is being proposed is T's placement, albeit within his family, with people with whom he has no relationship. T's welfare requires this reality to be carefully examined, and this requires the participation of Mr and Mrs X, precisely because it is not an argument that will be supported either by the local authority or by the birth family, all of whom will be arguing vigorously against it. As Miss Fottrell put it, it is difficult to see how Mr and Mrs X's case could be properly heard if they were not joined to the care proceedings.
- Furthermore, and relying upon Singh v Entry Clearance Officer, New Delhi [2004] EWCA Civ 1075, [2005] QB 608, [2005] 1 FLR 308, it was said that there exists between Mr and Mrs X and T 'family life' within the meaning of Article 8, which in turn, it is said, entitles them to a fair hearing in accordance with Article 6: see Soderback v Sweden (1998) 29 EHRR 95.
The statutory schemes
- To answer the questions raised in these appeals requires, in my judgment, a return to first principles and a careful focus upon the relevant statutory schemes.
- An application for a public law order under Part IV of the Children Act 1989 can be made only by a local authority or the NSPCC: sections 31(1), 31(9). Likewise, only a local authority can apply for a placement order under sections 21-22 of the Adoption and Children Act 2002.
- True it is that, once it has commenced such proceedings, a local authority can discontinue only with the consent of the court, and that, so long as the proceedings are on foot, the local authority is subject to the directions of the court (see Re W (Care Proceedings: Functions of Court and Local Authority) [2013] EWCA Civ 1227, [2014] 2 FLR 431, para 79). However, the care plan which it is required to produce (see section 31A of the 1989 Act) is a matter for the local authority, not the court. The court may encourage the local authority to modify its care plan so as to make it accord with what the court believes is in the interests of the child, but the court cannot compel. If the local authority refuses to alter its care plan, the court is confined to a choice of either endorsing the plan or dismissing the public law proceedings: for a recent survey of the jurisprudence see Re MN (Adult) [2015] EWCA Civ 411, paras 33-39. So it is the local authority which remains throughout in the driving seat.
- This does not, of course, prevent the court making some appropriate private law order: for example a child arrangements order under section 8 or a special guardianship order under section 14A.
- It follows from this that, if the local authority is unwilling to pursue a care plan for adoption or to make an application for a placement order, any application for adoption can be pursued only as what it is convenient to call a private law adoption. Where, as here, what is proposed is a private law adoption, without the parents' consent, by a couple, domiciled or habitually resident in the United Kingdom, who are local authority foster carers, the following requirements have to be met:
i) Unless the child has had his home with them for at least one year, the applicants must obtain the leave of the court to apply for an adoption order: sections 42(4) and 44(4) of the 2002 Act.
ii) Having obtained the leave of the court, if required, in accordance with section 44(4), the applicants must give the local authority notice of their intention to adopt not less than three months before the application is made: sections 44(2) and (3) of the 2002 Act as explained by Wilson LJ in Re A; Coventry County Council v CC [2007] EWCA Civ 1383, para 9. This triggers the local authority's duty to investigate in accordance with sections 44(5) and (6).
iii) The court must be satisfied that "sufficient opportunities to see the child with the [applicants] together in the home environment have been given
to the local authority within whose area the home is": section 42(7)(b).
iv) The court must have agreed to dispense with the parents' consent in accordance with sections 47(2)(c) and 52(1)(b).
- In the case of a private law adoption, as in the case of a public law adoption, the court cannot make an adoption order in the absence of parental consent except as 'a last resort' and only if 'nothing else will do': see In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273.
- As Baroness Hale of Richmond said in In re B, para 198:
"the test for severing the relationship between parent and child is very strict: only in exceptional circumstances and where motivated by overriding requirements pertaining to the child's welfare, in short, where nothing else will do."
This echoes what the Strasbourg court said in Y v United Kingdom (2012) 55 EHRR 33, [2012] 2 FLR 332, para 134:
"family ties may only be severed in very exceptional circumstances and
everything must be done to preserve personal relations and, where appropriate, to 'rebuild' the family. It is not enough to show that a child could be placed in a more beneficial environment for his upbringing" (emphasis added).
I draw attention to the words I have emphasised. What might otherwise 'tip the balance' in a private law case does not necessarily suffice to justify adoption in the face of parental opposition.
Discussion
- From the very earliest days of the 1989 Act (which, it will be remembered, came into force in October 1991), the court has set its face against the joinder in care proceedings of foster-parents or prospective adopters. Two decisions of this court explain why.
- In Re G (Minors) (Interim Care Order) [1993] 2 FLR 839, the judge had made an order joining foster-parents as parties to care proceedings. This court declined to interfere with his order, describing the case as being "exceptional
with many unusual features." However, Waite LJ added this (page 846):
"In ordinary circumstances I would not expect the court to regard it as appropriate to join foster-parents as parties to proceedings of this kind. To do so would in most cases run counter to the clear policy of the Act reflected in ss 9(3) and 10(3). The assistance afforded by foster-parents to the effective functioning of any system of child care is invaluable and should never be discouraged. Theirs is not a role, nevertheless, which would normally make it necessary for them to be joined formally as parties to proceedings in which the future upbringing of the children in their temporary care is in issue. There will generally be ample means for making their views known to the court, either directly as witnesses or indirectly through the inquiries of the guardian ad litem, without the necessity of adding them formally as parties."
- Some fifteen years later, this court said much the same thing again. In Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383, [2008] 1 FLR 959, a foster mother sought leave to apply for an adoption order in accordance with section 42(6) of the 2002 Act after the court, in that case the family proceedings court, had made a placement order. So the forensic context was very different from the one with which we are concerned. However, the judgment of Wilson LJ, as he then was, is of illuminating importance because he had to confront the argument of Mr Stephen Cobb QC, as he then was, appearing on behalf of the local authority. Wilson LJ summarised Mr Cobb's argument as follows (para 35):
"In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483."
- Wilson LJ, with whom both Ward LJ and Moore-Bick LJ agreed, was having none of this. He said (para 24):
"The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her."
- He elaborated this (para 34):
"I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child's committal into care, the placement order is not the court's last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by His Honour Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s 18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child."
My own experience mirrors that of Wilson LJ.
- Referring to Re R (Care: Plan for Adoption: Best Interests) [2006] 1 FLR 483, Wilson LJ said (para 35):
"I respectfully agree with Hedley J's observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy."
- In my judgment, there is no reason to depart from this long-established approach and, indeed, every reason to follow it. There is nothing in Article 8 or in the Strasbourg jurisprudence which calls for any different approach. There is nothing in the recent case-law on adoption (In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, [2013] 1 WLR 1911, [2013] 2 FLR 1075, In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, [2014] 1 FLR 1035, M v Blackburn with Darwen Borough Council and others [2014] EWCA Civ 1479, [2015] 1 WLR 2441 and In re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 3273) which justifies, let alone requires, any change in approach. Nor, in particular, is there anything in the status or function of an early permanence placement foster carer which either justifies or requires any change in approach.
- I agree, therefore, with the essential thrust of the submissions by Mr Donnelly, Mr Tyler and Miss Anning as I have summarised them in paragraphs 28-29 above. The care judge is concerned at most with consideration of adoption in principle, not with evaluating the merits of particular proposed adopters. There is no need for the prospective adopters to be joined, for it is the children's guardian (who will be aware of Mr and Mrs X's stance and can, if necessary, address their suitability) who has the task, indeed is under the duty, of subjecting the local authority's care plan to rigorous scrutiny and, where, appropriate, criticism. So, I agree, Mr and Mrs X's joinder to the care proceedings is inappropriate. Moreover, as was pointed out, and I agree, there is no need for Mr and Mrs X to be parties to the care proceedings to demonstrate that they are suitable prospective adopters for T, for they have already been positively assessed.
- The truth is, as Mr Tyler submitted, that, putting on one side Mr and Mrs X's role as early permanence placement foster carers, and, I emphasise, without in any way wishing to belittle or diminish all that they have done for T, this is a case where there has been an unexceptional period of time caring for an unexceptional child in an unexceptional case. This, in my judgment, is not an exceptional case justifying any departure from the general approach. For the reality is, as Mr Tyler correctly put it, that the 'status quo' and attachment on which Miss Scriven and Miss Fottrell placed such emphasis do not differ significantly from what is found in the many similar care cases where a child has been successfully fostered for a short period. Moreover, and to repeat, there is, in my judgment, nothing in the status or function of an early permanence placement foster carer which either justifies or requires any change in the hitherto conventional and long-established approach.
- To the extent I have indicated, I therefore agree with the thrust of Mr Tyler's submissions.
- Moreover, there is, as Miss Anning pointed out, a very real risk that if, in a case such as this, the forensic process is allowed to become in effect a dispute between the prospective adopters and the birth family, the court will be diverted into an illegitimate inquiry as to which placement will be better for the child. That, it cannot be emphasised too much, is not the question before the court. I repeat, because the point is so important, what the Strasbourg court said in Y v United Kingdom:
"family ties may only be severed in very exceptional circumstances
It is not enough to show that a child could be placed in a more beneficial environment for his upbringing."
Indeed, there are passages in Judge Troy's judgment for example, where she refers to a "comparative analysis of these two options", without at the same time spelling out that adoption is appropriate only as 'a last resort' and if 'nothing else will do' which do make me wonder whether she may not in fact have fallen into precisely that error here.
- There is another significant matter which, in my judgment, points in the same direction. The effect of sections 44(2) and (3) of the 2002 Act is to impose a period of three months' delay in a case such as this. This is an appropriate aspect of the statutory scheme in relation to private law adoptions. But it would sit most uncomfortably if, as suggested in the present case, the statutory scheme under the 2002 Act is to be run in tandem with the quite separate statutory scheme in relation to care proceedings under the 1999 Act, required, by the recently amended section 32(1)(a)(ii) of the 1989 Act, to be concluded within a total period of only 26 weeks.
- Before us, Miss Scriven and Miss Fottrell relied, as had Judge Troy, on the recent case-law emphasising that the court must address and analyse all the realistic options. We were taken through the cases (In re B, In re B-S, M v Blackburn and In re R), but with all respect to Judge Troy they are not in point and do not justify the course she took.
- What those cases are authority for is the proper approach in cases where (see In re B-S, para 33) the court is being asked by a local authority to approve a care plan for adoption or being asked to make a non-consensual placement order or adoption order. It was in this context that, as we made clear in In re B-S, para 34, "The evidence must address all the options which are realistically possible and must contain an analysis of the arguments for and against each option." M v Blackburn was a challenge to the making of a non-consensual placement order, and it was to that forensic contest that Ryder LJ was directing his observations (see, for example, para 32, where he said "A court making a placement order decision must conduct a five part exercise."). The same observation applies to In re R. But the case before us is not such a case. The local authority is not seeking either an adoption order or a placement order, nor is it seeking approval of a care plan for adoption.
- It would turn the In re B-S learning on its head to assert that, in a case where the local authority is not seeking any order which brings In re B-S into play, the requirement to consider every realistic option justifies, let alone requires, the joinder of a party to argue for the adoption for which the local authority itself is not applying. In my judgment, the In re B-S learning applies where the local authority is inviting the court either to approve a care plan for adoption or to make a non-consensual placement order or adoption order. It does not apply where, as here, the local authority is seeking none of these things.
- Accordingly, in my judgment, Mr and Mrs X ought not to have been joined as parties to the care proceedings, and the father's appeal must be allowed.
- I turn to the local authority's challenge to the order giving Mr and Mrs X leave to apply for an adoption order.
- In my judgment, the application was premature, as was Judge Troy's decision. There are two reasons for this. First, this was an application which properly fell to be considered after the conclusion of the care proceedings and once the court had concluded, if it did, that T's welfare required his adoption. This is the approach which, in my judgment, is generally applicable, and nothing in the statutory early permanence placement scheme justifies any different approach.
- The other reason is graphically illustrated by the forensic difficulty in which Judge Troy found herself, as she described in three passages in her judgment which I have already quoted in context but which bear repetition:
"Mr and Mrs X have only very limited information about the care proceedings in respect of T in general or about the paternal grandparents in particular."
"The local authority has not sought to place before me any information about the paternal grandparents. I have no information about what they may be able to offer to T, about the benefits or any detriments for T in placing him in the care of his paternal grandparents."
"The position taken by local authority
means
that I must determine this application without being in a position to consider the relative merits of the two proposed placements for T."
- None of this, in my judgment, is any matter for criticism of the local authority, let alone of Mr and Mrs X. It simply reflects the forensic reality given the stage the care proceedings had reached as Judge Troy noted, the children's guardian had not yet filed a report or even reached a concluded view , a forensic reality which simply goes to demonstrate that the task which Judge Troy attempted to embark upon was premature. Moreover, her lack of knowledge, shared it may be noted by Mr and Mrs X, meant that, try as she might, Judge Troy did not have the materials which she needed to have if she was properly to determine their application in accordance with sections 42(4) and 44(4) of the 2002 Act.
- Accordingly, in my judgment, Mr and Mrs X ought not to have been given leave to apply for an adoption order, and the local authority's appeal must be allowed.
- We were referred to Re B (Paternal Grandmother: Joinder as Party) [2012] EWCA Civ 737, [2012] 2 FLR 1358, to Re E-R (A Child) [2015] EWCA Civ 405, and to Re M'P-P (Children) [2015] EWCA Civ 584. None of these cases, in my judgment, throws any real light on the issues with which we are concerned. Re B was, as its name suggests, an application by a relative to be joined in care proceedings. Re E-R involved private law proceedings which had arisen in unusual circumstances. The general statements in these cases to which our attention was drawn are unexceptionable, but they were directed to situations so different from the one which confronts us as to be of no real assistance to us. Although Re M'P-P raised an important point of principle of central importance in care proceedings as McFarlane LJ put it (para 1), "the relative weight
to be attached to
"status quo" and "family" when determining the welfare of
young children" the discussion was ultimately inconclusive (the case went off on another point). In any event the present proceedings are not yet at the stage where we need to engage with the issue. In these circumstances it is better that we say nothing more on the point.
Conclusion
- For these reasons, the appeals of both the father and the local authority must, in my judgment, be allowed. The two orders made by Judge Troy must both be set aside. The care proceedings should continue without Mr and Mrs X being parties. I add for the avoidance of doubt that the fact that the order giving Mr and Mrs X leave to apply for an adoption order is being set aside does not prevent Mr and Mrs X pursuing their application, if appropriate, once the care proceedings have arrived at a conclusion.
A final matter
- Before parting from this case there is one final matter I need to refer to. These proceedings have inevitably imposed an enormous strain on Mr and Mrs X. Anxiety and anguish was etched on their faces as they sat before us. The outcome will come as a terrible blow. They have suggested that the local authority was unduly dismissive in November 2014 of the risk that they would not be able to adopt T and, after the paternal grandparents had emerged as contenders for T's care, unduly dismissive of the possibility that the paternal grandparents would receive the positive assessment which, in the event, they did.
- We are in no position to evaluate those concerns which do not, in any event, ultimately bear upon the issues which we have to decide. Without, I emphasise, expressing any view as to what was actually going on, I merely note what I would hope is obvious: that in every case of an early permanence placement there must, from the outset and at every stage thereafter, be complete frankness coupled with a robust appraisal of the realities.
Lady Justice Black :
- I agree.
Lord Justice Bean :
- I agree.
