R (On the Application Of EL) v Essex County Council [2017] EWHC 1041 (Admin) (08 May 2017) is a judicial review decision about a decision by a local authority to place a child for adoption, under a placement order granted by the Family Court.

Because this is a judicial review (a legal challenge to the lawfulness of a decision of a public authority – in this case the local authority acting as adoption agency), it is dealt with in the Administrative Court rather than the Family Court. The Family Court made the placement order which allowed the local authority to place the child, but it was the circumstances of their decision around the actual placement of the child for adoption that were problematic.

The Administrative Court quashed the decision to place the child for adoption because it had been unfair. We’ll summarise why.

Firstly, the Administrative Court decided that the decision to place the child was procedurally rather than substantively unfair. In plain English, the way the local authority went about it was wrong, but the placement order remains in place and they remain authorised to place the child for adoption unless something changes – as long as they do so fairly. This is not a decision that it is unfair for the child to be adopted.

That is difficult to get your head around without understanding the facts. But before you can make sense of why certain facts matter, you need to understand a bit more about the law. Here goes :

  • A placement order allows the local authority to place a child with someone it has assessed as suitable to eventually adopt the child.
  • Between the making of a placement order and the actual placing of a child for adoption, a parent may apply for leave to revoke the placement order. To be successful, they will need to show a change of circumstances and that it is in the best interests of the child for the order to be revoked. Many applications are unsuccessful, and probably most commonly they succeed where a search for adopters has been unsuccessful and it is now felt that a plan for adoption is not realistic, for example because of increasing age of the child.
  • Once a child is placed with adopters, however, there is nothing the parents can do – no application that they can make to stop the adoption going ahead or to get their child back, until the point where the prospective adopters make their application for an adoption order, when a parent may apply for leave to oppose the adoption order. Again, they would have to show a change of circumstances and that it is in the best interests of the child for them to be able to challenge the making of an adoption order. If they don’t get leave, that’s it. By the time an application for adoption is made a child has been living with the prospective adopters for at least ten weeks (and usually significantly longer than that), and has been living away for their parent for even longer still.
  • So, there are two chances for a parent to stop the adoption process after care and placement orders are made (apart from appeals) – an application for leave to revoke, or (later on) an application for leave to oppose. These are not easy applications to succeed on. Even if a parent gets leave, they may well fail in actually revoking the order or opposing an adoption order.

So, that’s the law bit. The facts then…

It was known that the mother didn’t agree with the placement order. She’d tried to appeal it but was refused permission. The mother had told the social worker she was going to judicially review them and would see the adopters in court. The Administrative Court said  that the mother was :

…indicating that she wished to take legal steps to challenge and bring an end to a care plan for the adoption of the child. It would or should have been clear to the local authority that the correct process for this was an application under s. 24 of the 2002 Act [application to revoke] and not judicial review.

Shortly after this, the child was introduced to the prospective adopters and the mother was notified of the intention to place her by letter. The letter didn’t tell her about the possibility of an application for leave to revoke the placement order. Shortly after this, the mother attempted to issue an application for leave to revoke, but there was some administrative hold up. Introductions between child and prospective adopters had already begun. The local authority were aware the mother was trying to issue a revocation application, but they accelerated, and went ahead with the placement of the child with the prospective adopters. This avoided them having to halt the introductions process that had been started, as they would have to do if the application was issued before actual placement.

The court said that the actions of the local authority had been focused on the welfare of the child (we take this to mean that, having started the introductions, they genuinely felt it was important that the process was seen through to avoid disruption). BUT this approach of carrying on anyway, was contrary to guidance given in an earlier case called Re F – in essence, where it is known there is an outstanding application that is going to need to be dealt with, a local authority should wait, rather than racing ahead in an attempt to frustrate the parents’ application. The court in this case makes clear that this applies as much where it is known that an application is intended as where it is known that an application has actually been issued.

The judge in the Administrative Court says the current court rules and guidance are not clear enough, and situations like this are unhelpful and unfair both for parents and for the children involved – as their plans may be held up or affected if things are not done properly. This is precisely what happened here, because having placed the child for adoption (which means the child will have been told, if old enough, that they are now living  with a new forever family), that placement decision has been quashed as unlawful, and it will now probably take longer to get finality for everyone. So whilst the local authority had been trying to promote the best interests of the child, this was a case of more haste less speed.

The local authority argued that even if its decision was unfair, the mother should not be granted any remedy (in particular the quashing of the placement decision) because her judicial review was made too late and the child had already been placed for six months. It also argued that the mother would still have the chance to oppose the making of the adoption order later on, but the Administrative Court didn’t think this was an answer at all – the child would have been placed with the prospective adopters even longer by then, so her hopes would be even more remote.

Whilst the court did quash the decision to place and declared that the placement was unlawful (which means that the mother may now pursue her application for leave to revoke the placement order), all agreed that the child could remain where she was until the revocation application was resolved, and the local authority approved the prospective adopters as foster carers to make that placement a lawful placement in the meantime. If the application for leave to revoke is refused, the local authority will be free to “place” the child for adoption with the same carers – as long as they do so fairly (for example, they would be wise to wait for any time limit for an appeal to pass first) – and this would be a paper exercise rather than requiring a physical move.

This decision is quite detailed and technical – we haven’t covered everything and have summarised the law in a way that we hope make sense to those who are unfamiliar with its complexity.

Feature pic : Scales by Hittie Evie on Flickr (Creative Commons licence) – thanks!