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Prospective Adopters v Sheffield City Council [2020] EWHC 2783 (Fam)

Application by prospective adopters for an injunction requiring the Local Authority to return one of the children to their care – issue as to whether or not the prospective adopters had already given notice under section 35 (1) ACA 2002 of their wish to return the child – whether a Local Authority wishing to terminate a placement with prospective adopters is required to give notice under s.35(2) if the child is not living with the adopters but has been returned to the Local Authority for a period of respite care

The prospective adopters of two children aged 9 ('G') and 7 ('M') sought a mandatory injunction under the Human Rights Act 1998 for the return of M to their care.

Both children had been placed with the applicants following the making of a placement order by the Family Court some six months' earlier. The placement is described as having been 'unsettled' from the beginning, with both children being reported to be 'grossly traumatised'. Both G and M engaged in self-harming behaviour, with G being exceptionally challenging: she assaulted her sister in a sexual manner on three occasions causing bruising and breaking of M's skin; deliberately destroyed M's favourite belongings; 'lashed out' at G; and repeatedly caused deliberate injury to herself. The injuries caused by G towards M required hospital assessment at times. On 21 July 2020 following a distressing outburst from G which lasted for several hours and which resulted in an ambulance having to be called due to the injuries she had inflicted on herself, the applicants sent the local authority an email. In it they stated that they were 'no longer able to continue' and asked the local authority to 'please come and get the girls.'

The children were placed thereafter in separate foster placements, but continued to have direct contact both with each other and the applicants. On 14 August 2020 the applicants requested the return of M to their physical care. The Local Authority refused. The applicants then applied for an adoption order with respect to M.

Issues and decision
The case turns on the terms of section 35 of the ACA 2002 (set out at para. 13 of the judgment below) and in particular whether the email sent by the prospective adopters on 21 July 2020 amounted to notice to the adoption agency that they wished to return the children. Where such notice is given, the agency has a duty to 'receive the child before the end of the period of seven days beginning with the giving of the notice' and to inform any parent and guardian of the prospective adopters' wish to return the child.

Mostyn J began by stating that the test for what constitutes a notice under s.35 is a question of law, but that the issue of whether a specific communication satisfies that test is a question of fact.

On the question of law, he clarified that to constitute notice under s.35, the intention of the notice-giver must be to end the placement permanently and that a request for temporary respite is not sufficient. On the question of fact, he found for a number of reasons set out at para. 18 that the applicants' email of 21 July 2020 was not a request for the children to be temporarily accommodated and that it brought the placement to an end. In reaching this conclusion, Mostyn J took into consideration the need to approach with caution messages sent in such challenging and emotional circumstances and to be slow 'to import a meaning that brings about far reaching and drastic consequences where this was not clearly intended.'

Accordingly, the Judge dismissed the application under the Human Rights Act and struck out the application for adoption on the basis that M had not been living with the prospective adopters for a period of ten weeks preceding their application. 

By way of postscript, the judgment also deals with the question of whether the Local Authority had acted unlawfully by refusing to return M if the email sent by the prospective adopters on 21 July 2020 had not in fact amounted to notice under s.35(1) but she had been returned to the Local Authority for a period of respite care. Section 35(2) provides that where a child is placed for adoption by an adoption agency and the agency is of the opinion that the child should not remain with the prospective adopters and gives notice to them of its opinion, the prospective adopters must return the child no later than the end of the period of seven days from the giving of notice. Mostyn J considered, obiter, that no such notice needed to be given by the Local Authority where the child was not living with the prospective adopters but had been returned for a period of respite care. If such notice were required it would have 'an air of unreality about it', eg where the child whilst in respite care alleged serious abuse against the potential adopters, obliging the Local Authority to return the child at the prospective adopters' request before initiating the s.35(2) procedure, or to apply forthwith for an ICO or EPO 'in reality against itself'. Whilst the Local Authority in these circumstances is able to make the decision to terminate the placement without giving notice under section 35(2), such a decision is nonetheless challengeable in judicial review or freestanding human rights proceedings. Moreover, as Mostyn J pointed out at the end of the judgment, it would be better if the decision to terminate the placement was set out in a reasoned letter rather than being made tacitly by a refusal to return, as would have applied in this case.

Summary by Abigail Bond, barrister, St John's Chambers, Bristol.

Read the full judgment of  Prospective Adopters v Sheffield City Council [2020] EWHC 2783 (Fam)  on BAILII