A High Court judge has ruled a council acted unlawfully by placing a child with prospective adopters despite knowing her birth mother wanted to oppose it in court.
In a judicial review ruling published this week, Mr Justice Charles found Essex council “deliberately for welfare reasons” sought to stop the mother from making an application to overturn the placement order. The council did this by placing the child before the mother had issued a court application, despite knowing that she wanted to launch a challenge.
The judge found social workers, acting on advice from the council’s legal team, brought the placement plan forward despite knowing the mother’s position. The council failed to tell the mother about the timing of the placement plan and did not explain the process she needed to go through to apply for the order to be revoked under section 24 of the Adoption Act 2002.
Decision quashed
Mr Justice Charles said the council’s decision to speed up the placement plan was designed to “thwart” the mother’s application and avoid the need to delay the placement while the court considered her case.
He said “fairness (and in my view, common sense and straightforwardness)” meant the council should have explained to the mother that unless she issued an application by a certain date, it would proceed with placing the girl.
The judge quashed the decision to place the child and said the case raised issues that should be considered by officials drawing up guidance in this area.
He said: “I suggest that not only is a race between an under-informed parent and the adoption agency likely to be unfair, it is also likely to create significant risks to the achievement of a result that best promotes the welfare of the child and the timely completion of a plan for adoption.”
Guidance
The council argued that its placement decision was made for the child’s welfare and took into account that the mother had taken full part in the care proceedings. The authority said fairness did not require it to give the mother information on the date on which the child would be placed or how she could challenge the placement.
Statutory guidance on adoption states that: “If, before the child is placed, an application is made for the revocation of a placement order, the local authority cannot place the child without the leave of the court…
“…It is not however appropriate for a local authority to proceed with the placement when it is aware of the application for leave, and an attempt to do so in order to frustrate the birth parents’ application could be challenged in court by an application for judicial review.”
The judge said the council’s legal department felt it could “get on with its plan for adoption” until a court application was made, in effect viewing it as “a race between placement and issue of an application for leave to apply to revoke the placement order”.
Mr Justice Charles said the guidance could make it clearer that being “aware” of an application not only covers a position where an application has actually been made with the court, but also where a council knows an application is being considered.
Delay
He said delaying the placement timetable while the mother’s application was heard would have been “practicable”. He expressed sympathies for the prospective adopters who had to suffer “uncertainties caused by the failure of the local authority to act lawfully”.
As well as quashing the placement decision, the judge said the family court should hear the mother’s original application to revoke the placement order.
He said the issue of damages due to the mother for breaches of her right to a fair trial under Article 6 of the European Convention of Human Rights should be ruled on at a later date.
The judge said the girl should remain with the prospective adopters until the mother’s application was heard, but their legal status would be changed to foster carers.
A spokesperson for Essex County Council said: “The welfare of the child is always our paramount consideration when placing them for adoption. We are aware of this case and acknowledge the findings, which relate to procedural and administrative processes.
“The judgement gives new guidance about the principles of procedural fairness and we will be looking at how to implement these.”
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“The authority said fairness did not require it to give the mother information on the date on which the child would be placed or how she could challenge the placement.”
Really? This is a very autocratic perspective and the draconian action taken by the LA is incongruent with social work values and ethics. Whatever the professionals view of the mother (and we don’t know the full story, she may have been responsible for abusing this child), Children’s Services should respect the rights of the individual and behave in a manner befitting of a public authority. Give her notice, allow her to challenge the application, make a reasoned argument in court and then lawfully and justly place the child for adoption.
I think this is a nice illustration of how hard it is to old different aspects of a case in mind particularly so in cases involving children. With the benefit of hindsight or more helpfully an external objective view at the time the workers may have recognised that they had a duty of care to both parent and child (& prospective adopters) and used their professional perspective to inform their dealings with their legal department
I dealt with a very similar issue on a previous case and although it delayed the process, I believe it is indeed common sense to consider that although orders have been made, the parent still retains a right to appeal the decision and until this is heard, it is unfair to try and ‘race’ to a conclusion based on a parents lack of knowledge on their rights….
It’s interesting no mention of the guardian position in this case.
I have worked in the system as a foster. I understood that my position was temporary and that the goal was unification. From my expereince there is really no such legally enforceable situation known as open adoption. Once adopted the whole agreement to keep that relationship open to the parents is up to the adopter. I have personally seen time and time again that the adopters fail to honor their promise once the court has awarded them the child. The mother has every right to fight for her child and to exhaust all resources to maintain that bomd.