Legal update: who is in charge of adoption?

The case of a woman who wanted to adopt her foster daughter has clarified the placement-adoption order relationship, writes Ed Mitchell

The case: TL v Coventry Council.

The issue: Relationship between placement and adoption order proceedings.

A local authority does not have the final say on whether a person can adopt a child, and neither does the court which makes a placement order. The final say is had by the court hearing an application for an adoption order. That was the key message from the Court of Appeal concerning a foster parent who wished to adopt her foster daughter.

How did this case arise?

Ms T fostered a six-day-old child, whose plan was for adoption. Ms T already had five children, one of whom was an adopted former foster child. When the present child was six months old, a placement order was made.

Before the order, Ms T told the local authority that she wanted to adopt the child. They refused to support her so she sought an adoption order herself. Because the foster child had lived with her for less than a year, she had to seek court permission to apply for an order. The county court refused permission. Ms T appealed.

How should a court approach an application for permission to apply for an adoption order?

The Court of Appeal said a permission application must always consider the welfare of the child and whether there is a “real prospect” of an adoption order being made in favour of the applicant.

Did the placement order determine suitability to adopt?

The county court said that the making of the placement order, which involved a court approving the council’s care plan, meant that a court had already rejected Ms T as a suitable adopter. The Court of Appeal said this was wrong: “The requirement for close scrutiny of the care plan should in principle not extend toany issue as to the identity of the optimum adopter or adopters for the child.”

Was the council’s refusal to support the adoption fatal?

No. In this case, the Court of Appeal criticised the county court for placing too much weight on the council’s lack of support for Ms T. The county court had been “insufficiently independent” of the council’s stance when deciding whether to grant her leave to apply for an adoption order.

Are foster parents generally unsuitable to adopt?

No. The county court was criticised by the Court of Appeal for making too much of the difference between fostering and adopting, concluding: “It would be absurd to conclude that suitability to foster equated to unsuitability to adopt.” It went on to set aside the county court’s decision and grant Ms T permission to apply for an adoption order.

What are the key practice points?

The first point is that councils should generally keep issues about the suitability of particular adopters separate from placement and care order proceedings.

The second point is a reminder that planning should not become an end in itself. Councils should remain focused on the ultimate goal: to secure the best possible outcome for a child. A dogmatic refusal to alter plans in response to welfare developments can frustrate that.

While foster carers are routinely warned against assuming they can adopt foster children, subsequent requests to be considered as adopters should not be dismissed out of hand – it may just be the best outcome for the child.

Full decision

Ed Mitchell is a solicitor, editor of Social Care Law Today and Community Care‘s legal expert