Re: A (a child)(adoption) [2008] 1 FCR55, CA

The facts A local authority foster mother, after looking after a child for nine months, wished to adopt her. By s 42 of the Adoption and Children Act 2002, because the child had had her home with the foster mother for less than one year, the foster mother required leave of the court before she could apply for an adoption order. Before she could apply for leave, the local authority applied to a Family Proceedings Court for, and obtained, not only a care order, but also a placement order, ie an order authorising the local authority to place the child for adoption in accordance with the local authority’s care plan that she be placed for adoption. The care plan in fact proposed that the child be placed with a proposed adopter other than the foster mother, to whom the local authority objected. The foster mother was not a party to the proceedings in the Family Proceedings Court. Thereafter, the local authority’s permanency panel approved the match of the child with the other proposed adopter, and arranged a programme of visits by the child to, followed by residence with, the other proposed adopter. The foster mother applied to a County Court for leave to apply for an adoption order, and her application was heard as a matter of urgency. There was insufficent time to arrange for the attendance at the County Court of the child’s guardian in the Family Proceedings Court, but the judge was told that the guardian considered that, in the light of the child’s bond with the foster mother, it would be better for her to remain with the foster mother than for her to be moved to another proposed adopter, and that he did not consider that the local authority’s objection to the foster mother held water.  Counsel for the foster mother invited the judge to adjourn in order to allow the guardian to attend court and explain the reasons for his opinion, or at least lodge a written report, but the judge merely said: ‘I do not consider that that is necessary or appropriate. For the purpose of this hearing I am prepared to accept that the guardian’s views are as they have been presented to me.’ The judge attached considerable weight to the local authority’s reasons for its objection to the foster mother, and said: ‘Although there has been no formal assessment, the local authority knows her very well and, in my judgement, was entitled to reach the conclusion it arrived at without the need for a full blown assessment.’ He also took into account the outcome of the proceedings in the Family Proceedings Court, and said that the Family Proceedings Court had carefully scrutinised the care plan and approved it and that he saw no reason to disturb its decision not merely to make a care order, but also to authorise placement of the child with a proposed adopter other than the foster mother.  He refused the foster mother’s application for leave to apply for an adoption order, but allowed the child to remain with her until the expedited hearing of her appeal against his refusal. 

Held

The Court of Appeal allowed the appeal, and gave the foster mother leave to apply for an adoption order. It held that although the welfare of the child is a relevant consideration under the Adoption and Children Act 2002, it is not (unlike the position under the Children Act 1989) the paramount consideration. Nevertheless, the relevant consideration in deciding whether to grant leave is whether the proposed applicant has a real prospect of success, and this in turn requires consideration of the welfare of the child because, in order for the applicant to persuade the court that she has a real prospect of success, she has to persuade it that it is arguable that the welfare of the child would best be served by an adoption order. The Court of Appeal held that the judge had been wrong in two respects. First, he should have should have called at least for a report from the guardian, and preferably for his attendance in the witness box in order properly to understand his reasons for, and what weight to attach to, his views, as opposed to the local authority’s objection. Second, he was wrong in having any regard at all to the Family Proceedings Court’s decision, because the only question for the Family Proceedings Court (having made a care order) was whether the local authority should be authorised to place the child for adoption. It was not concerned with, and had no power to decide the relative merits of different proposed adopters, or with whom the child should be placed. Wilson LJ said: ‘I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption. The law provides a forum, the adoption court, in which issues as to the identity of the optimum adopter can later be ventilated. The requirement for close scrutiny, by the care court, of the care plan should not extend to an address of any issue as to the identity of the optimum adopter for the child.’

Comment

This case did not decide that the foster mother should adopt the child. The local authority’s objection to her may well have been well founded, but it was made prematurely, in proceedings to which she was not a party. This case does emphasise the importance of keeping care and placement proceedings, in which the parties are the local authority, the parents, and the child, separate from adoption proceedings, in which the parties are the proposed adopter, the parents, and the child.

Michael Segal has been a district judge of the Principal Registry of the Family Division since 1985. This is a specialist family court and about two-thirds of its work concerns disputes about children.

The cases presented here aim to help the reader understand better the nature of and the types of decision making within the court system.

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