Court backs council in adoption dispute

In R(W) v Leicestershire council [2003] EWHC 704 the high court
had to consider whether it was proper to remove children from a
carer who had expressed a wish to adopt children.

Twins were placed with a short term foster carer, who cared for
them for nearly a year. She wished to adopt them, but the local
authority considered that she was not able to meet their long term
needs. They decided not to carry out an assessment of her as an
adopter.

Through solicitors she informed the authority that she wished to
pursue an adoption application. The local authority gave notice
under section 30(3) of the Adoption Act 1976 that she was obliged
to return them within seven days. The children were left with her
over Christmas, but removed shortly after. She sought judicial
review of the decision to remove them.

It was held that the authority’s decision to use its
powers to give notice of  intention to remove before the making of
an adoption application was a legitimate way of safeguarding and
promoting the welfare of the children. If the decision had been
left until after an adoption application had been made, the
authority would have had to obtain the permission of the court to
issue the notice of intention to remove.

The case has to be distinguished from R v Devon council ex parte
O [1997] 2 FLR 388, where it was held that the decision to remove
was amenable to judicial review because there had been a failure on
the part of the authority to consult a carer, who had looked after
the child for more than two years. The carer had had no opportunity
to answer the authority’s concerns. But in the Leicestershire
case the positions of the respective parties were clear and the
carer had been consulted.

When sections 42 and 44 of the Adoption and Children Act 2002
are brought into force, a foster carer who looked after the child
for less than a year, would have to obtain the permission of the
court to make an adoption application.

Richard White

White and Sherwin Solicitors