This post is about two recent judgments with a similar theme – attempts by birth parents to stop an adoption going through, on the legal basis of caselaw interpretation of the Adoption and Children Act 2002 that their circumstances had changed and that the original welfare decision and plan therefore need reconsidering. One, Re D, is a decision on leave to apply to revoke placement orders and the second, Re A and B, is a decision on opposing adoption orders. This means that the children in Re D are not yet living with prospective adopters, although the children in Re A and B are.
Re D – leave to apply to revoke placement orders
This is a judgment on a successful application to apply for leave (permission) to revoke placement orders for two children – Re D (Leave to Apply to Revoke Placement Orders) [2022] EWCA Civ 299. The mother has been ‘successful’ only in the sense that she has been granted an appeal against a decision in the lower court that she couldn’t apply for leave. So, she now has leave to make an application, but there are still hurdles for her to overcome before she can get to the point where the placement order is revoked. We don’t know if (a) she will go through with an application or (b) if she applies, whether the orders will be revoked or (c) if they are revoked, how the care plan will change.
As explained in earlier posts, to get a placement order revoked, a parent needs to establish: (1) circumstances have changed to ‘open the door’ for reconsideration by the court and (2) it will now be in the the children’s welfare that the placement order is revoked. This would result in the child remaining in the care of the local authority but no longer being able to be placed for adoption. It doesn’t necessarily mean the child will return to the parent, but it does mean the parent won’t entirely lose parental responsibility.
The children here are aged four and six. One of them is disabled. Therefore, finding suitable adopters who will take both children isn’t straightforward. However, a potential adopter was found in October 2021, the children having been initially removed (under police protection) and been in foster care since January 2020.
There is a great deal of discussion in the judgment of evidence and expert opinion about the mother’s alcohol dependency and the impact of this on her care of the children. This is poignant, because the district judge who made the placement orders observed that she loved the children dearly and had regular, positive contact with them.
Court proceedings have been ongoing for more than two years. Even before the January 2020 removal, there had been a supervision order following an earlier care application in January 2019. The children were however later found in a state of extreme distress and neglect and, following the second application by the local authority, care and placement orders were made by the district judge in November 2020. There was a long delay in finding a potential adopter and by November 2021, the mother believed she was able to prove her circumstances had changed to the extent that she applied to discharge the care orders and revoke the placement orders. At a hearing in January 2022, the Recorder at Barnet Family Court concluded that her circumstances had not changed enough. The mother appealed that decision.
In the Court of Appeal, Lord Justice Moylan set out the case put by the respective barristers for the mother and the local authority, and the earlier evidence from the Cafcass guardian, supporting the local authority. The guardian was not funded to participate in the appeal, presumably because she was not makng a separate case. The history and medical evidence about the mother’s addiction and treatment were also reconsidered. The Court decided to allow the appeal because:
‘the Recorder set the bar too high. He failed to carry out a sufficiently thorough analysis of the mother’s professed change of circumstances. Of course, the evidence about the mother’s circumstances was limited. Apart from the evidence of abstinence, which the Recorder accepted, the evidence was principally what was set out in her statement, in some respects corroborated by the social worker. But this was only an application for leave, not the substantive application to revoke. It is inevitable that the evidence at this point will be incomplete. That is one reason why it is important not to set the bar too high. To the extent that there was evidence about those factors, it was positive.’ [para 37]
This decision was given orally on 3rd March and the written judgment notes that a case management hearing was fixed for 10 March, in anticipation of a full hearing on the mother’s applications. Unfortunately, in the transparency and public legal aducation context, there is no obligation on the judges in these subsequent hearings to publish decisions on the mother’s applications and whether the detailed evidence set out by the Court of Appeal has resulted in the abandonment of an adoption plan and any prospect of the children being returned to her. Moylan LJ is explicit that he is not commenting on her prospects of success but it is clear that the Court was very concerned about impact of the delays to date and were doing their best to expedite matters.
Meanwhile, the children remain in short term foster care.
Re A and B – an application to oppose adoption orders
The judgment in Re A and B Children) (Contested Adoption) [2022] EWFC 17 is a decision by HHJ George in Leicester Family Court about an attempt by birth parents to stop adoption going ahead, at a later stage than in Re D. The birth parents of a ten year old and a six year old had been granted leave to apply to oppose the adoption order. This means that, unlike Re D, the children had already been placed with prospective adopters. The likelihood of birth parents succeeding at this stage is even smaller than trying to revoke a placement order. As time goes on, the birth parents’ circumstances may improve from when the original welfare decision was made, but the children have been away from them for longer and (if all is going to plan) are settling into a new home. The birth parents in this case have four older children, who are adult or in foster care, and one younger child (C) aged two, who lives with them. At the point of the parents’ application to oppose, there were no concerns about C and therefore they were drawing a distinction between their circumstances more than two years ago, when A and B were removed, and now. As the judge says in para 7: ‘I can see that the parents have been drug and alcohol abstinent for several years; their home conditions are now very good; they are no longer at risk of eviction; there is no longer domestic abuse within their relationship and they have been able to work openly and honestly with professionals in respect of C.’
Whereas we don’t know what happened after the mother in Re D was given leave to revoke, here in Re A and B, the parents were given leave to oppose without having to go to appeal, but leave was given back in October 2021. The placement order had been made in August 2019 and the children placed with prospective adopters a year later, September 2020. The application to oppose adoption was not heard until February 2022, more than year after the children had moved into what was planned as their permanent home. There was strong evidence before the judge about A’s gradual recovery from trauma, his attachment to his little brother and their attachment to the adopters, and that the boys were thriving. This all presents a huge challenge to the birth parents.
Very helpfully in this judgment, the judge sets out her welfare analysis in detail, considering the children’s wishes and feelings, their experiences, and each item in the checklist, drawing on the arguments put forward on behalf of the parents, the local authority and the Cafcass guardian. She concludes that it would not be in either child’s welfare to leave the adoptive placement or even be reintroduced to their birth parents through face to face contact. We can see how fact-specific such a decision is, with clear analysis of the risks to A, especially with regard to his older siblings.
Comment
In Re D, the decision to be made by the Court of Appeal was quite narrow, and there are still many questions to be answered. On the other hand, publishing a family court judgment that tells us the outcome for the families in a case such as Re A and B is helpful for public legal education. Seeing the workings-out of the judge and her close analysis of the arguments helps to explain the rationale of adoption as the ‘last resort’.