This is a guest post by Mark Senior. Mark was a Solicitor specialising in family law for 9 years before moving to the Bar in 2002. He is based in Liverpool at St Johns Buildings Chambers. He tweets as @grumpyoldbrief.

At the end of October a friend and colleague Jack Harrison produced a compelling post for the Transparency Project on two recent cases in which challenges to adoption were considered by courts (You can read that post here). It is valuable not only for his comments on those cases but also for his explanation of the legal framework of adoption which I won’t repeat (because I doubt I could improve on it!)

In 2002 (I shudder to imagine how young Jack would have been then), at a time when I had been solicitor for 9 years and recently decided to move to be a barrister, Sir James Munby – then a Judge in the High Court – made the following comment about adoption:

“…it must never be forgotten that, with the state’s abandonment of the right to impose capital sentences, orders of the kind which judges of this Division are typically invited to make in public law proceedings are amongst the most drastic that any judge in any jurisdiction is ever empowered to make. It is a terrible thing to say to any parent – particularly, perhaps, to a mother – that he or she is to lose their child for ever”.

I have thought about that quote often in the years since it was reported. It is now over 30 years since I first appeared in a family court and there are very few things I have had to do that are more upsetting than having to sit with a parent and tell them that the child or children that they love so much are going to be adopted.

In this post I am going to talk about another similar case, RE C [Judgment here : C (Revocation of Placement Orders) [2020] EWCA Civ 1598].  I should declare an interest in the case as I was part of the team that represented the children involved. The Court of Appeal published its judgment in the case on 27th November. It is an unusual case for two reasons :

  • Firstly, it seems to be the first reported decision in which an application for permission to apply to revoke a placement order  had been granted and the court had to think about what was the proper legal approach to deciding whether or not a placement order should actually be revoked.
  • Secondly, it is a case in which the mother of the three children involved had managed to utterly transform her life. Lord Justice Baker, who gave the main judgment in the case in the Court of Appeal, described it as :

“a remarkable transformation in her life, on a scale which I have rarely seen in many years’ experience of the family justice system.”

A bit of legal background

Some legal background, summarising the relevant bits of what are described more fully in Jack’s post, will be useful. A Placement Order is the order that a family court makes which authorises a local authority to look for and place a child with carers with the intention that  they will become the adoptive parents of the child. Placement orders were designed (by the Adoption and Children Act of 2002) with the intention that they should be made at the same time that a care order is made in relation to that child. A parent can apply to a family court for permission (or “leave”) to revoke a placement order if that child has not been placed with the carers who are intended to be the adoptive parents. A court will not give permission for such an application to proceed unless it is satisfied there has been a change in circumstances since the care and placement orders were made.

To quote from Lord Justice Baker’s judgment again:

“Applications for leave to apply to revoke a placement order are not infrequently made, but rarely succeed, no doubt because in most cases the child will be placed for adoption within a few months of the placement order being made and it will be very difficult for a birth parent in such a short period of time to demonstrate sufficient change of circumstances to open the door to revocation. As a result, substantive applications for revocation of a placement order rarely come before the court and, as stated above, counsel have been unable to find any reported case in which such an application has been determined. It follows that there is no case law providing guidance on how a court should approach an application to revoke a placement order once leave has been granted.”

The facts of Re C

One of the reasons why this case was out of the ordinary was that it involved three children. At the time when the care and placement orders were made they were 4, 2 and six weeks old. I don’t class myself as an expert but on the basis of my experience I venture to suggest that it is unusual to have a sibling group with this range of ages placed for adoption. It took the local authority some months to find a potential placement, but potential adoptive parents were identified and approved by the local authority about 8 months after the care and placement orders had been made.

By then, however, the mother had applied for permission to revoke the placement orders. That was at the end of May 2019. Once the mother had made that application, the local authority involved were not allowed to place the children with the proposed adoptive parents (unless they made a special application to the court to allow them to do so, which quite properly in this case they didn’t).

It took from May 2019 until until February 2020 for the court to decide whether or not the mother should be given permission for the application to proceed (which was eventually dealt with by agreement with the local authority and guardian for the children). It then took until the end of September 2020 for the court to finally deal with the mother’s actual revocation application. There were a number of reasons why this happened which are set out in the judgment of the Court of Appeal for anyone who wishes to read it,  Of crucial importance is that the effect of this was that by September 2020 the children were nearly 7, 4 and nearly 2. Again, I’m no expert, but I would defy any social worker to tell you that it is easy to place three children of those ages in any placement together, let alone an adoptive placement. However, notwithstanding the 14 months of legal proceedings that had elapsed since the potential adopters had been approved, they remained available and wanting to offer a home to these children.

By September 2020, the crucial change which the mother was able to show was that she had established a new relationship which was largely positive and supportive, had a new born child with her partner and the same local authority had decided that not only should that child remain in the care of the mother and her partner but that there did not see a need to issue court proceedings about that child. She was also heavily involved in the care of the three children that her partner had from a previous relationship.

Once permission to make the application had been allowed, an independent social worker was instructed to assess the mother and her partner. Lord Justice Baker records the conclusion of this assessment:

“I have considered extensively whether it would be possible for the children to return to their mother’s care and, if so, what support would mitigate the risks identified in this assessment. Unfortunately, I am not convinced there is any realistic level of support which would guarantee the safety and security of the children moving to live with their mother, at this juncture. S’s (the oldest child) emotional needs present serious risk of her regressing, enduring further trauma through being reminded of her adverse experiences, confusion and placement breakdown…”

After hearing 5 days of evidence, His Honour Judge Sharpe, who dealt with the case, decided in summary that it was too much of a risk to try to return the three children to the care of their mother and her new partner. A return was something that could not be done without preparatory work that may take some time, there were risks of failure that could not be ignored and the impact of further delay would lead to a very real risk that the three children may end up being separated. In doing so, he acknowledged the transformation that the mother had made in her life but concluded that

“the mother could literally have done no more than she has…the problem for these children is not what their mother can offer them now but what they need now as a result of what they endured in the past.”

The mother appealed against this decision, was granted permission to do so by Lord Justice Baker and this was the appeal which the Court of Appeal considered.

Three key points

Trying to “do justice” to the judgment of the Court of Appeal would no doubt take longer than this post allows, but there are three particular sections that may be are important.

The first is the court’s reiterating a passage from an earlier Court of Appeal decision of Lord Justice Peter Jackson in Re F (A Child) (Placement Order: Proportionality) [2018] EWCA Civ 2761, which I would suggest is becoming the guidance of how courts should evaluate the balance of risk between rehabilitation and adoption ( it was also quoted in another decision from the Court of Appeal a week before this decision):

“(1)     The type of harm that might arise.

(2)      The likelihood of it arising.

(3)      The consequences: what would be the likely severity of the harm to [the child] if it did come to pass?

(4)      Risk reduction/mitigation: would the chances of harm happening be reduced or mitigated by the support services that are or could be made available?

(5)      The comparative evaluation: in the light of the above, how do the welfare advantages and disadvantages of [the child] growing up with his mother compare with those of adoption?

(6)      Proportionality: ultimately, is adoption necessary and proportionate in this case?”

Secondly, the Court of Appeal endorses the way HHJ Sharpe summarised the legal principles to be applied if a court is faced with the actual question of whether or not to revoke a placement order ( this is my summary of the factors, they are set out in full at paragraph of the judgment):

  • The child’s or children’s welfare is the most important consideration;
  • That welfare should involve maintaining connection with birth parents as much as is possible;
  • Any order should interfere with this principle as little as possible consistent with the child’s/children’s welfare;
  • This approach reflects the right to family life under the European Human Rights Convention;
  • The right to family life is a right of parent and child which can only be interfered with in a way that is legal, necessary and proportionate;
  • The permanent breaking of family ties through adoption should only be approved in exceptional circumstances;
  • To come to that conclusion it must be the case that parental care or care by the wider family is shown to be unrealistic either because its not available or would not meet the needs of the child/children;
  • Parental or wider family care should not be rejected if it can be achieved with  proportionate support and assistance, even if that means for an extended period of time;
  • A conclusion to approve adoption can only be made by considering each realistic option, that options strengths and weaknesses, and comparing each option against the other;
  • Having identified which option best meets the child/children’s needs, the court should determine whether that outcome is a proportionate interference with the rights of the child.

(I think the question of how you decide if a plan for adoption is proportionate is an interesting one, but that is for another day.)

Finally, the judgment referred to an older decision of the Court of Appeal, RE G from 2013, in which Lord Justice Macfarlane had talked about how appeal Judges consider whether or not a family court judge has got a decision about adoption right: “What is required is a balancing exercise in which each option is evaluated to the degree of detail necessary.”

Lord Justice Baker concluded that “the evaluation carried out by the judge in this case contained the degree of detail necessary in the circumstances” and the other two judges hearing the appeal agreed with him, so the appeal was unsuccessful.

To conclude

When I am occasionally allowed out in public to talk about family law I have been known to express misgivings about how we deal with adoption in this jurisdiction. What struck me as being at the heart of this case was the risk that, if a return to their mother was tried and failed , the likelihood was that the three children would grow up in different homes. That would be an outcome that no one wanted. Ultimately four Judges came to the conclusion that, for that reason among others, adoption was the right outcome in the case. Heartbreaking as it undoubtedly is for the mother, I think it was a reasonable decision for the court to come to. I suppose the judges in the end will be the children themselves. I hope that whatever they think in the future if they see any of this, they see that the professionals involved tried very hard not to get the decision wrong. Sometimes that is the best we can hope to do.