Adoption

Care and possession before adoption - Legislation - Human rights

DL v Newham London Borough Council: QBD (Admin) Mr Justice Charles: 27 May 2011

In November 2007, a care order and a placement order was made in respect of the child, who was born in 2006.

The care plan was for adoption. In November 2007, the claimants, who were married, were approved as prospective adopters.

In March 2009, the defendant local authority’s adoption panel recommended that the child be placed with the claimants for adoption.

That placement triggered the reviewing process governed by part 6 of the Adoption Agencies Regulations 2005, SI 2005/389, and statutory guidance relating to it.

The review process informed the authority of a number of matters.

In the light of such matters, in August 2010, the authority instructed an independent social worker, K, to conduct a home visit and assessment of the placement.

K carried out her assessment and visited the claimants over two days. Shortly after her assessment, on 24 August 2010, the authority hand-delivered a notice to the claimants under section 35(2) of the Adoption and Children Act 2002.

The effect of the section 35(2) notice was that the claimants were required to return the child to the care of the authority within seven days.

The notice stated that the authority was no longer satisfied that the child’s welfare was best served by the placement with the claimants for adoption.

The authority found that the child had suffered significant harm and was likely to be exposed to further significant harm if he continued to remain in the claimants’ care.

On 27 August, the claimants submitted an application for the adoption of the child.

The child was duly returned to the care of the authority.

The following day, the claimants’ application for an adoption order was dismissed.

At a professionals meeting it was decided that the child’s case should be taken back to the adoption panel to rescind the match with the claimants.

The claimants wrote to the authority requesting it to reconsider its decision.

By letter on 22 November, the authority decided not to return the child to the care of the claimants.

The letter indicated that it was the disclosure to K and her view that urgent safeguarding measures were required that prompted the making of the without-notice application for an emergency protection order (EPO) and then the giving of the section 35(2) notice.

The claimants issued proceedings for judicial review.

The claimants submitted, first, that either section 35(2) of the 2002 act was incompatible with articles 6 and 8 of the European Convention on Human Rights, or to avoid that incompatibility, words should be read into it, pursuant to section 3 of the Human Rights Act 1998 to ensure that, once a child had been placed for adoption, he could not be removed from the prospective adopters: (i) other than pursuant to an order of the court; or (ii) without the prospective adopters being able to obtain from that court an order preventing such a removal.

Secondly, or alternatively, the two decisions of the authority breached both procedural and substantive parts of the article 8 rights of the claimants and the child.

The court ruled that, where an urgent return or one without notice was warranted, the correct course was to apply for an EPO, or an interim care order.

The care order that was suspended by section 29 of the 2002 act was based on historical harm and not the trigger to any such application and applications for an EPO, and a further care order (which included an interim care order) was not excluded by section 29 of the 2002 Act.

If and when a child was removed under an EPO, that would bring an end to the placement, and thus not only to the parental responsibility of the prospective adopters, but also to their ability to make an application for an adoption order.

Therefore, the limited period for which an EPO could be granted would not necessitate an application for an interim care order.

Once a child was returned pursuant to an interim care order, or an EPO, those orders would become redundant and not be renewed because the placement order (that followed the original care order) would remain effective.

But that did not mean that they were not available and appropriate remedies to protect and promote the welfare of a child placed for adoption by removing him from that placement.

That available and appropriate approach to urgent or without-notice cases had two effects: (a) the family court was involved and so it was only when a section 35(2) notice was given before an application for adoption was made that the family court was not involved on a removal of the child from the prospective adopters; and (b) it showed and confirmed that the scheme of the 2002 act and the 2005 regulations and guidance was one that envisaged that the normal position would be that the reasons for a removal as a result of the giving of a section 35(2) notice would be discussed with the prospective adopters before that notice was given.

Orders of the court started and ended the process of adoption but, during the process, parliament had made the local authority (adoption agency) the statutory decision-maker on placement and its termination up to the time that an application for an adoption order was made.

It was not an arbitrary or strange divide. Rather, it fitted naturally with the process envisaged by the 2002 act after a placement order was made.

The possibility or fact that a public authority might act in breach of article 8 did not found the conclusion that the relevant legislation was incompatible.

The court in such proceedings as the instant was the decision-maker on whether there had been a breach of a convention right.

The reading in of words into section 35 of the 2002 act was not necessary to enable the court: (a) to grant an interim stay of the operation of, and thus the consequences of, a section 35(2) notice given before the prospective adopters made an application for adoption; and (b) thereby ensuring that at trial the court could grant an effective remedy.

It was accordingly not necessary to render it compatible with articles 6 and 8 of the convention (see [92]-[93], [113]-[115], [121], [128], [131], [138] of the judgment).

Whatever their extent and description, the other civil rights of prospective adopters (and children placed for adoption) that were engaged in the context of section 35(2) of the 2002 act were so entwined with the article 8 rights that were engaged on a placement for adoption that any facts that needed to be determined in respect of a claim based on them would also be relevant to the determination of a claim based on article 8, with the results that:

(a) on all determinations of the claimants’ relevant civil rights the court could and would, if it was appropriate to do so, determine the relevant disputed facts; and (b) the authority would be bound by that determination and so, if necessary, it would have to reconsider its decision in light of those findings (see [135] of the judgment).

In the instant case, there was no incompatibility with article 8 of the convention.

The authority, in exercising its powers and performing its duties under the 2002 act was bound, as a public authority, to act in accordance with both the procedural and substantive elements of article 8.

That was not precluded by the 2002 act.

Indeed, compliance with article 8 was promoted by the duties imposed on local authorities by the 2002 act and both the 2005 regulations and guidance.

The challenged decisions of authority affected, and indeed if effective put an end to, civil rights of the claimants and the child arising from the placement, and, in particular, to the parental responsibility it gave to the claimants and the relationship between them and the child that was so created, and, further, if effective, the challenged decisions had an impact on the ability of the claimants to pursue an application to adopt the child and might well prejudice, or cause problems in respect of, their chances of adopting another child.

The duty of the court not to act in breach of the claimants’ convention rights was relevant because it meant that the claimants could not successfully argue that the court should ignore article 8 and deal only with the alleged breaches of their other civil rights caused by the decisions as a basis for asserting that the court could not determine relevant issues of fact, and therefore there was a breach of article 6 of the convention.

By not giving the claimants a full and informed opportunity to address the reasons why the authority had decided to give the section 35(2) notice and, in particular, the trigger to its service, namely, the report of K’s interview with the child and her views, the authority had failed to act fairly and had acted in breach of the procedural requirements of article 8.

The course of action adopted by the authority, and the reasons for it, had the consequence that the procedural requirements and the common law duty of fairness required it to adopt a two-stage process and to make a separate decision following the return of the child as to whether or not he would be returned to the claimants (see [126]-[127], [134], [137]-[141] of the judgment).

The decisions under challenge would be quashed as would the decision to revoke the match between the claimant and the child (see [11] of the judgment).

Re S (children: care plan); Re W (children: care plan) [2002] 2 All ER 192 applied; Ghaidan v Godin-Mendoza [2004] 2 FCR 481 applied.

Ramby de Mello, Gina Allwood for the claimants; Hilton Harrup-Griffiths for the authority; Samantha Broadfoot for the interested party, the secretary of state for education.