Interim order - Foster parents applying interim injunction to prevent removal - Jurisdiction

Re B (children) (adoption): Court of Appeal, Civil Division (Lord Neuberger MR, Lord Wilson, Dame Janet Smith): 22 June 2011

The proceedings concerned two young children. The children had lived with the foster parents since they were babies and were aged one and two by the time of the proceedings.

The local authority put in plans for the children to be adopted.

The authority then approved a match of the children with the prospective adopters (the adopters). The children met the prospective adopters.

It was agreed that a programme of introduction should take place, which involved the adopters taking the children home for the day, doing the same on a separate day for a bit longer and then finally taking them to live with them.

Shortly before that was to take place, the foster parents made two sets of applications, namely for adoption orders in relation to both children and for revocation of the placement orders in relation to them.

The foster parents applied for an interim injunction to prevent the authority removing the children from them.

The foster parents satisfied the condition set out in section 42 of the Adoption and Children Act 2002 (the act), which required that a child had to have lived with the applicant local authority’s foster parents for a period of one year preceding the application.

However, they did not satisfy the condition under section 44(3) of the act, which required that those who wished to adopt a child not placed with them by an adoption agency had to have given the local authority a notice of intention to adopt not more than two years, or less than three months, before the date on which the application for the adoption order was made.The judge treated the invalid application for adoption orders as a valid notice of intention.

He granted an injunction against the authority not to remove the children from the care and control of the foster parents three months after the date of application, by which time the foster parents would have satisfied section 44(3) of the act.

He also made a further order to adjourn the application for leave to apply to revoke the placement orders.

The authority appealed against those orders.

The issues arose as whether: (i) the judge had had the jurisdiction to grant the interim injunction, so as to allow the foster parents to make an application for an adoption order; and (ii) whether a child was ‘placed’ for adoption when an adoption agency ratified the match between a child and prospective adopters and when therefore after he first met them, or whether he was ‘placed’ for adoption only when he subsequently began to live with them.

The authority submitted it had already ‘placed’ the children when it had ratified the children’s adopters, with the result that, by virtue of section 24(2)(b) of the act it had been too late for the foster parents to apply to revoke the placement order.

Accordingly, it submitted that the judge had erred in adjourning that application.

The appeal would be allowed in part.

(1) A judge had jurisdiction to make an injunction to prevent the removal of children in short-term foster placements by the local authority, pending the hearing of an application for an adoption order.

In determining whether to make the injunction, the judge should pose to himself, and seek to answer, an initial question as follows: (a) was there a real prospect that the foster parents would establish that the authority’s decision to remove the children from them notwithstanding that they wished to adopt them was, by reference to public law principles, irrational, disproportionate or otherwise unlawful, or was otherwise in breach of their rights, or those of the adopters or of those of the children under article 8 of the European Convention on Human Rights.

If the judge’s answer to question (a) was negative, he should refuse to grant the injunction.

However, if his answer to the question was affirmative, he should proceed to address further questions which, without purporting to be prescriptive, might run along the following lines:

(b) whether the foster parents brought the proceedings with reasonable promptness and, if not, how their delay affected whether an injunction would now serve the interests of the children;

(c) although in form an application only for an interim injunction, might any injunction be likely to continue (or to be continued) for a substantial period of time and, if so, with what likely consequences;

(d) whether an injunction might jeopardise the candidacy of the proposed adopters; (e) whether the consequence of a refusal of an injunction be to disable the foster parents from applying to adopt the children;

(f) whether the status quo was that the children were living with the foster parents, or was it that they are virtually at the end of an agreed programme of removal into the home of the adopters and so would an injunction therefore more properly be regarded as preserving, or as disrupting, the status quo; and (g) whether the issue to grant the injunction affected any aspect of the welfare of the children not addressed by answers to the above questions (see [32], [37] of the judgment).

In the circumstances of the case, the judge’s answer to question (a) should have been negative with the result that questions along the lines of (b) to (g) would not have arisen.

The circumstances were that the preparations for the removal of the children into the home of the adopters had reached their penultimate stage and that, irrespective of the surrounding circumstances, the foster parents had for in excess of one year failed to put themselves forward as prospective adopters.

In such circumstances, there was no real prospect that the authority’s decision to proceed with the removal notwithstanding their sudden notice of intention to adopt could be established to be irrational, disproportionate or otherwise unlawful at common law or in breach of any person’s rights under art 8 of the convention (see [38] of the judgment).

The injunction in restraint of removal would be set aside (see [50] of the judgment).

(2) A child was not ‘placed’ for adoption until he began to live with the proposed adopters or, if he was already living with them in their capacity as foster carers, when the adoption agency formally allowed him to continue to live with them in their fresh capacity as prospective adopters (see [44] of the judgment).

Frances Judd QC and Mark Higgins for the local authority; Alistair MacDonald QC and Theresa McCormack for the foster parents; Elizabeth McGrath for the mother. The father did not appear and was not represented. Robin Lewis for the children, by their guardian.