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R (Care Proceedings Joinder of Foster Carers) 2021 EWCA Civ 875

The issue with which the appeal was concerned was the decision to join a child’s foster parents, who had a wish to adopt the child, to the care proceedings.


It transpired that there were two potential sets of adoptees – the foster carers, and a cousin and her partner (the latter who were identified late in the proceedings). The local authority were supporting the cousin and partner at that stage. The foster carers had made an application to adopt, which had not been validly made at the time of the initial hearing. The judge took the view that the foster carers should be joined as there was nobody else who could effectively put their case, in contrast to the cousin. The local authority appealed against this decision. At the time of this judgment, both couples had been approved as adopters.

The case also concerned the division of responsibilities between the court and local authority when it came to adoption in these very unique circumstances where a placement order application was not being made without adopters being identified, but where there were two prospective adopters. The issue arose as to whether the court should determine this as part of its final welfare decision, or if it should be left to the local authority as part of their statutory functions.

After a thorough evaluation of the law on adoption, the role of the care plan, family placements, and joinder of foster carers and prospective adopters, the Baker LJ, giving the leading judgment, concluded that the trial judge was wrong in both principle and law to join the foster carers as parties. The exceptional circumstances did not exist. The foster carer's application to adopt must be considered before any final decision was made about the child's future, but this did not necessitate them being joined as parties. The guardian was able to carry out any necessary enquiries without the foster carers being joined. The following was proposed as the more appropriate course of action:

66. "It seems to me that the right course for the judge would have been to list the local authority's application for a care order for a final hearing. At that point, the judge could have considered whether adoption in principle was the right option, applying the test laid down in Re B and Re B-S. In the event that the court determined that adoption was the right option, it could have made a care order and proceeded to consider Mr and Mrs A's application alongside the local authority's application for a placement order. That might have necessitated an adjournment for assessments and would undoubtedly have required careful consideration about issues of confidentiality. In my judgment, however, it would have been an unobjectionable course to take in the light of the authorities."

Baker LJ however did not agree with the local authority that the proposed application by the foster carers was irrerlevant nor that it was an impermissible attempt to circumvent the statutory scheme. There was nothing in the statutory scheme to prevent a person who is lawfully entitled to apply for a private or non-agency adoption from doing so before or after the local authority has applied for a placement order. Baker LJ further noted that where such a person has given notice of intention to apply to adopt, the local authority is absolved from its statutory obligation to apply for a placement order, provided the adoption application is issued within four months and has not been withdrawn or refuse (s.22(5) Children Act 1989). Further, when a lawful application has been made, the court must consider it and is not constrained from doing so by the statutory scheme. Any court was also required to take into account the range of powers available when making a placement order, and that would include the making of a non-agency adoption order as sought by the foster carers.

The Court concluded that the care order application should proceed to a final hearing at which the judge would have to determine the local authority plan for adoption, and that if this was so, it was anticipated that a final care order would be made but the application for a placement order adjourned to be determined in parallel with Mr and Mrs A's application to adopt (by which time it would have been validly made). The Court also set aside the order for the filing and serving of adoption assessments, on the basis that they would contain confidential information, and stating that this should be reconsidered at the next hearing.

Case summary by Rebecca Davies, Barrister, Field Court Chambers

For full case, please see BAILII