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Local authority’s placement decision quashed because of procedural unfairness

Guidance sought as to what procedural information should be given to parties in adoption cases

Mr Justice Charles has quashed the decision of a local authority to place a child for adoption and granted injunctive relief to prevent placement before final disposal of the mother's applications to revoke the placement, and gave directions for the mother's applications to be considered afresh.

In R (On the Application Of EL) v Essex County Council [2017] EWHC 1041 (Admin) Charles J heard an application for judicial review by a mother of two children, a boy aged 12 and a girl aged 6. Essex County Council had brought s.31 CA 1989 proceedings, where the boy remained in long term foster care under a care order, and care and placement orders were made in respect of the girl. The mother sought permission to appeal which was refused.

The mother's judicial review application was in respect of the decision to place her daughter for adoption on the grounds of procedural unfairness. She argued that the local authority had failed to keep her informed of key steps in the process, namely of their intention to place the child with prospective adopters and of the placement timetable.  Furthermore, the local authority placed the child in the knowledge that the mother intended to apply for permission under s.24 ACA 2002, thus circumventing her application.

Before the child had visited the prospective adopters' home, the mother had attended court to complete the application forms to revoke the placement order. The court was not able to process the application because the mother had not enclosed the fee and had not lodged the application correctly. The court informed the local authority of this the day after the mother attended to issue. The local authority therefore had notice of the mother's settled intention to seek leave to make an application to revoke the placement order. The local authority legal services department advised the social work team to carry on with their plans, and the child was first taken to the prospective adopters' home three days after the mother attended court. Subsequently, the local authority brought forward the date on which the child was to be placed to 5 October 2016, in the knowledge that if the mother resubmitted her application before the child was placed, it could stop placement.

Building on Wall LJ's judgment in Re F (Placement Order) [2008] 2 FLR 550 Charles J states that "what constitutes a fair process for a decision relating to the upbringing of a child is not governed by a test directed to what is in the best interests of, or what will best promote, the welfare of, the child."

Charles J concluded that before embarking on placement, fairness required the local authority to inform the mother that unless she issued an application under s.24 ACA 2002, it would proceed with placement. Further, by not informing the mother of the existence and timing of the placement plan, and then on 4 October 2016 accelerating the placement, the local authority deliberately sought to prevent the mother from making an application to revoke the placement order by placing the child before she had issued her application for leave.

Charles J concluded that the mother had established that the local authority had acted unfairly and so unlawfully in placing the child for adoption. He quashed the decision to place, declared that the child have not be lawfully placed for adoption, granted injunctive relief to prevent placement before final disposal of the mother's applications, and gave directions for the mother's applications to be considered afresh.

His Lordship also invited those responsible for issuing guidance and for the Family Procedure Rule Committee to consider:

For the judgment, prefaced by a full summary by Sarah Tyler of Coram Chambers, of which this is a shortened version, please click here.