Recent case law developments about adoption

Recent legal cases have clarified parents’ right to challenge placement orders and the duties of councils towards prospective adopters, writes Ed Mitchell

In order to avoid delay, the Adoption and Children Act 2002 makes it difficult to revoke placement orders. Once a child has been placed under a placement order, a parent cannot apply to the courts for its revocation. As a result, the adoption die has nearly been cast because it is very difficult for parents to successfully challenge a subsequent application for an adoption order.

Therefore, the point at which parental rights are lost depends on when a child is “placed” for adoption. This was considered by the Court of Appeal in the matter of S (a child), which concerned a seven-year-old with a placement order. An initial placement for adoption broke down, following which the boy was cared for by specialist therapeutic foster carers. The carers were considering putting themselves forward as prospective adopters, but had not made a decision. The boy’s mother then decided that she wanted him back and so took steps to get the placement order revoked. The crucial issue, therefore, was whether the boy had been placed for adoption.

The Court of Appeal held that the boy had not been placed for adoption and so the mother could try to have the placement order revoked. The foster carers were potential adopters, but they could not be described as prospective adopters and so the boy was not placed for adoption.

Baby placements

The usual rules about placement for adoption do not apply to the consensual placement of a baby under six-weeks-old. However, the 2002 Act is not completely clear about how these babies should be placed. This was remedied by the High Court’s decision in Sandwell MBC v GC.

The Court held that the baby may be placed for adoption with the written agreement of the parent or guardian. However, there is doubt as to whether this agreement can act as consent to a formal placement for adoption under section 19 of the 2002 Act and it cannot amount to the mother’s advance consent to an adoption order. So, once a baby is six-weeks-old, further steps should be taken. If the plan is still for adoption, the local authority should obtain the standard form of section 19 parental consent for placement of adoption and consider whether to seek section 20 advance consent to an adoption order.

Approval of adopters

In R(A) v Newham Council, the High Court showed that a local authority faces difficulty if it lawfully refuses to implement an independent review recommendation. The case concerned Mr and Mrs A who had already adopted one child and also wanted to adopt his younger half-sibling. They were assessed by their local authority’s adoption panel but it refused to approve them as adopters. Mr and Mrs A exercised their right to an independent review, which recommended their approval. The local authority refused to implement the review decision. Mr and Mrs A claimed judicial review.

The High Court confirmed that, while it is legally possible for a local authority to refuse to implement a review recommendation, it must have “good reasons” for not doing so. In this case, there was not a good reason. The authority simply decided, without properly analysing the evidence, that the independent review had not dispelled its doubts as to the likely use of corporal punishment by Mr and Mrs A and their financial stability. The authority’s decision was quashed and will have to be re-taken.

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

This article is published in the 15 January 2009 edition of Community Care under the headline “Case law shifts balance on adoption away from councils”