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Re A (A Minor) [2007] EWCA Civ 1383

Appeal by foster mother against a refusal to allow her leave to apply to adopt a child currently in her care. Appeal allowed.

The foster mother had care of the child, A, when A was only 6 days old. At the time of the appeal A was 9 months old. The natural mother, who was party to the proceedings, supported the foster carer's application, as did the guardian. The local authority had opposed the application as they had concerns, among other things, that the foster mother already had a 'busy household', 'was a smoker' and the motivation of a foster carer and adopter are different. They therefore pressed ahead with plans to place A for adoption, despite a written intention from the foster mother which they assured her would be considered.

In this judgment Wilson LJ reviews the history of the proceedings and concludes that the guardian's support of the foster mother's application required the judge to consider that position more carefully than he had done. He rejected counsel for the local authority's submission that the application was late. Crucially, Wilson LJ also found that the trial judge had been considering whether the local authority would support the foster carer's application when he should have considered whether there was a real prospect that the court would support the adoption of A by the foster mother.

Accordingly the Court of Appeal exercised their discretion afresh and granted leave to make the application.


Neutral Citation Number: [2007] EWCA Civ 1383
Case No: B4/2007/2678
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21 December 2007
Before :

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Re A, A Minor


TL (Appellant)

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CC (Second Respondent)

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A, by her Children's Guardian (Intervener)

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Miss Frances Judd QC and Mr Nicholas Goodwin (instructed by Rotherham and Co., Coventry) appeared on behalf of the Appellant, the foster mother.
Mr Stephen Cobb QC and Miss Louise Potter (instructed by Coventry City Council) appeared on behalf of the First Respondent, the local authority.
Mrs Sarah Gibbons (instructed by Messers Jackson West, Stratford upon Avon) appeared on behalf of the Second Respondent, the mother.
Mr Mark Wyatt (instructed by Bate Edmonds Snape, Coventry) appeared on behalf of the Intervener, the child by her Children's Guardian.

Hearing date: 17 December 2007
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Lord Justice Wilson:

Section A: Introduction

1. The present status of the proposed appellant is that of a foster mother and I will so describe her. At the centre of her proposed appeal is a girl, A, who was born on 9 March 2007 and is thus aged nine months. Coventry City Council ("Coventry") placed A with the foster mother on 15 March 2007, i.e. when she was six days old. The foster mother has cared for A ever since. When A was placed with her, she accepted that it was a short-term foster placement. Now, however, she wishes to adopt A, in respect of whom on 17 October 2007 the family proceedings court in Coventry made a placement order authorising Coventry to place her for adoption. Coventry do not agree that a continued placement with the foster mother is the optimum adoptive placement for A. On 23 November 2007 His Honour Judge Bellamy in the Coventry County Court refused the foster mother leave to apply for an adoption order in relation to A. Such is the order under challenge in this court.

2. The foster mother's application for leave needed to be heard extremely quickly; and congratulations are due to the foster mother's solicitors, Rotherham and Co., Coventry, and to the county court in Coventry for enabling such to be achieved. The urgency arose as a result of the fact that on 7 November 2007 Coventry's permanency panel approved the match of A with other proposed adopters and that thereupon Coventry devised a programme for A to be introduced to them on 20 November, to spend time with them on each of the following five days and to move permanently into their home on 26 November 2007. For reasons which I will explain, the foster mother started her search for legal assistance on 12 November; and, when on 20 November she approached Rotherham and Co., they offered her an appointment on a publicly funded basis on the following day. Although on behalf of the foster mother they formally issued the application for leave on 23 November, it was on 22 November that they informed the court of the intended application and persuaded it that, in the light of its extreme urgency, it should be listed for hearing before the judge on the afternoon of 23 November. Also on 22 November Rotherham and Co informed Coventry of the proposed application and of the hearing on the following day; and they gave the same information both to the solicitors who had been representing the natural mother (whom I will describe as "the mother") in the recently concluded proceedings for a placement order referable to A and also to the CAFCASS officer, Mr Sanga, who had acted as A's Children's Guardian in those proceedings.

3. It seems clear that the mother was properly made a respondent to the foster mother's application for leave: for the placement order did not eliminate her parental responsibility for A and so she was a necessary respondent to the application pursuant to Rule 86(4)(b)(ii)(bb) and to Rule 23, Table 2, of the Family Procedure (Adoption) Rules 2005, SI 2005/2795. It was also probably correct that A herself, whether acting by Mr Sanga or by another Children's Guardian, was not made an initial respondent to it: for although, by Rule 86(4)(b)(ii)(bb) any person who would be a party to the substantive application if leave to make it were granted should be a respondent to the application for leave, Rule 23, Table 2, provides – so far as relevant – that a child should be a respondent to an application for an adoption order only if a Children and Family Reporter recommends that it is in the best interests of the child to be a party and such recommendation is accepted by the court. So I suppose that one cannot say at the time of issue of the application for leave that the child "would" be a party to the proposed application for an adoption order. The court may however at any stage direct that the child, like any other person, be made a respondent to the application for leave: Rule 86(4)(c).

4. In the event appearances before the judge at the hearing on 23 November were only by Mr Goodwin of counsel on behalf of the foster mother in support of the application for leave and by Miss Potter of counsel on behalf of Coventry in opposition to it. Nevertheless the judge was informed of the stance in relation to it taken by the mother, as a respondent to it, and, albeit only broadly, taken by Mr Sanga as A's former Children's Guardian, notwithstanding that she was not a respondent to it.

5. The stance of the mother was communicated to Rotherham and Co. by a letter dated 22 November 2007 from the solicitors who had represented her in the placement proceedings; and the letter was shown to the judge. In it they explained that it would not be possible for them to arrange for the mother's representation at the hearing; that, while she had not consented to the making of a placement order, she had always indicated to Coventry and indeed to the family proceedings court that, were A to be adopted, her preference would be for the foster mother to be the adoptive parent; and that accordingly the mother supported the foster mother's application.

6. The stance of Mr Sanga was communicated to Mr Pendle at Rotherham and Co. by telephone on 22 November 2007 and was duly relayed to the judge by the production of Mr Pendle's attendance note of the conversation. Mr Sanga told Mr Pendle that it had been the view of both himself and of the solicitor for A in the placement proceedings, as he had sought to make clear to the family proceedings court, that, in the light of A's bond with the foster mother and her other children, it would be better for A to remain with the foster mother than for her to be moved to another adoptive family; that he did not consider that Coventry's objections to the foster mother's candidacy for adoption held water; that, for example, the mother was aware of the identity of the foster mother and the location of her home and yet had never done anything to disrupt it; that he could not see the relevance of the local authority's concern that the foster mother's household was "very busy"; and that accordingly he supported the foster mother's application for leave.

7. Although he declined to grant the foster mother permission to appeal to this court from his refusal of leave, the judge properly indicated that she should be granted a short window of time in which to approach this court prior to any removal of A from her. His indication precipitated a pragmatic agreement between the foster mother and Coventry, by counsel, which enabled the foster mother to file an Appellant's Notice with, again, admirable celerity. The notice led to an immediate direction on my part that the foster mother's application for permission should be listed for hearing urgently on notice not only to the local authority and to the mother but also to Mr Sanga and on the basis that, were permission granted, the substantive appeal would follow forthwith. Thus it is that, at this hearing, we have had the benefit not only of attendance by leading and junior counsel for the foster mother and for Coventry but also junior counsel for the mother and for A by Mr Sanga as her Children's Guardian. In effect, at my invitation, A, by Mr Sanga, is an intervener in the proceedings in this court. As before the judge, so before this court: the mother and Mr Sanga support the foster mother's proposed appeal.

8. Section 42 of the Adoption and Children Act 2002 ("the Act") provides as follows:

"(1) An application for an adoption order may not be made unless –
(a) if subsection (2) applies, the condition in that subsection is met,
(b) if that subsection does not apply, the condition in whichever is applicable of subsections (3) to (5) applies.

(4) If the applicants are local authority foster parents, the condition is that the child must have had his home with the applicants at all times during the period of one year preceding the application.

(6) But subsections (4) and (5) do not prevent an application being made if the court gives leave to make it."

Thus, in that A had had her home with the foster mother for only eight months, the foster mother required leave to apply for an adoption order referable to her by virtue of s.42(4) and (6).

9. It is convenient at this stage to notice a further, temporal brake on the foster mother's ability to apply for an adoption order even were leave to be granted to her to make it. The brake arises under s.44 of the Act, which provides as follows:

"(1) This section applies where persons (referred to in this section as 'proposed adopters') wish to adopt a child who is not placed for adoption with them by an adoption agency.
(2) An adoption order may not be made in respect of the child unless the proposed adopters have given notice to the appropriate local authority of their intention to apply for the adoption order (referred to in this Act as a 'notice of intention to adopt').
(3) The notice must be given not … less than three months … before the date on which the application for the adoption order is made.
(4) Where –
(a) if a person were seeking to apply for an adoption order, subsection (4) … of s.42 would apply, but
(b) the condition in the subsection … is not met,
the person may not give notice of intention to adopt unless he has the court's leave to apply for an adoption order.
(5) On receipt of a notice of intention to adopt, the local authority must arrange for the investigation of the matter and submit to the court a report of the investigation.
(6) In particular, the investigation must, so far as practicable, include the suitability of the proposed adopters and any other matters relevant to the operation of section 1 in relation to the application."

Thus, had the judge on 23 November granted her leave, the foster mother could then and there have given notice to Coventry – in writing pursuant to s.144(1) of the Act – of her intention to adopt A; and receipt of such notice would have precipitated an obligation upon Coventry to investigate the matter, including in particular her suitability to adopt her. But the foster mother would not have been able to issue the application for the adoption order until 23 February 2008.

10. The researches of counsel do not reveal any reported decision referable to the grant of leave to apply for an adoption order under s.42(6) of the Act. But counsel were in agreement at the hearing before the judge as to the proper approach to any such application; and the judge accepted and endorsed the approach which they commended to him. Equally, before this court, counsel remain in agreement as to it; and, in turn, I consider that we should accept and endorse it. For, notwithstanding the absence of a decision referable to the grant of leave under s.42(6), there is a recent reported decision of this court referable to the grant of leave to apply for revocation of a placement order under s.24(2) of the Act. It is Re M and L, Warwickshire v. M, [2007] EWCA Civ 1084. I would accept and hold that the legal principles relevant to the exercise of the discretion whether to grant leave pursuant to each of the subsections is identical. Thus the welfare of the child is a relevant consideration but, by virtue of s.1(7) of the Act, is not the paramount consideration: see [22] and [24] of my judgment in Re M and L. Another relevant consideration is whether the proposed application has a real prospect of success: see [29] of that judgment. Indeed I there observed:

"My view is that the requisite analysis of the prospect of success will almost always include the requisite analysis of the welfare of the child. For, were there to be a real prospect that an applicant would persuade the court that a child's welfare would best be served by [the substantive order sought], it would surely almost always serve the child's welfare for the applicant to be given leave to seek to do so. Conversely, were there not to be any such real prospect, it is hard to conceive that it would serve the welfare of the child for the application for leave to be granted. But I hesitate to suggest that analysis of welfare will always be satisfactorily subsumed within an analysis of prospect."

Section B: The Background

11. The foster mother is aged 41 and lives in a six bedroom house in Coventry. Living there with her are five children. These include a natural daughter aged 14 and a natural son aged seven. She also has an adopted daughter, aged about 11, who has been diagnosed as autistic; Coventry approved the foster mother as one of their foster carers as long ago as 1996 and among the many children whom Coventry have since placed in her foster care was this child, whom in due course she adopted with Coventry's consent. The two other children in the household are A and another young foster child.

12. There is no doubt that, following her placement with the foster mother, A has thriven in her care and that strong bonds have arisen between A on the one hand and the foster mother and the three older children on the other. In July 2007 the foster mother indicated to Coventry that she wished to adopt A. Coventry's record of a Family Finding Meeting held on 2 August referable to A records her wish to adopt her but proceeds merely to state:

"There are concerns about whether this is the best placement for [A]. [The foster mother] smokes. [She] has a busy household. Also [the mother] knows where [the foster mother] lives.
[The social workers] will do a joint visit to [the foster mother] to explain why we will not be asking her to adopt [A]."

13. On 13 September 2007 the social workers duly visited the foster mother and undertook such an explanation. One of them made a note of the reasons which they had given to her for not considering her as an adopter for A. She recorded them as follows:

"(a) She is part of a busy household – six children. Unsure whether [A's] long-term needs can be met. [The adopted daughter] has special needs – autism. Children Looked After come into placement with their own needs. She will need a break from fostering which she was in agreement to – six months – however may need longer.
(b) Concerned re birth mother's knowing her address and visits to the placement in the future, although no problems currently. [The mother] may pass address to [the father].
(c) [The foster mother] is a smoker, would be difficult to get Coventry Adoption Panel to approve linking baby in smoking household. [The foster mother] indicated that this is not the law. Informed her that this is the policy/procedure that Coventry … follows.
(d) Motivation to foster and adopt is different. She came forward to foster [A]. If she wants to adopt, can contact the Adoption Team to be assessed as adopter – [the foster mother] indicating that she does not want to adopt in general but wants to adopt [A] specifically as her children are attached to her and wanting her to remain with family.
(e) Discussion whether [the foster mother] will cope/accept should [A] have learning difficulties in view of mum's learning difficulties – [the foster mother] saying that [A] is a bright baby – no concerns. [The foster mother] struggled coping when [the adopted daughter] diagnosed with autism. Asked her if she would have continued with [the] adoption if she was aware of her autism. [The foster mother] indicated that she would have said "no" a few years ago but having lived and coped with the situation, she feels she will now say "yes"."

The note also shows that the social workers properly advised the foster mother that it was open to her to seek legal advice and that they told her that, in that A had not been in her care for a year, she could not apply to the court for an adoption order. They could, of course, have added that it would be open to her to seek leave to do so. It would be unfair to criticise them for that omission but they can scarcely be said to have alerted her to the need to take prompt legal action.

14. Thereupon the foster mother contacted an organisation called "Fostering Networks". On 2 October 2007 the foster mother wrote a very well presented letter to Ms Branson, manager of Coventry's Permanency Team; and I suspect that the legal helpline of "Fostering Networks" assisted her in drafting it. In the letter the foster mother said:

"Following a meeting I had with [the social worker] regarding my interest in the adoption of [A], I feel I have to dispute [the social worker's] reasons for not considering me as an adoptive parent to this child.
During the meeting it was pointed out that the reasons for not considering me were as follows:
I am a smoker
I am a single parent.
The birth mother is aware of my home address.
That I am a foster carer whose resource is needed.
[The social worker] also suggested I get assessed and get on the list instead of "Jumping the queue".
In response to what [the social worker] has outlined I would like to say that I am well aware of the dangers of passive smoking especially in the case of babies. I do not smoke in front of any child. There is no law stating that a prospective adopter must not be a smoker although I am aware that there are guidelines to follow. I am also willing to receive treatment to help stop smoking if it is deemed to be a serious issue.
As for me being a single parent, I have perfectly well managed to bring up my own children who are 20, 14, 11 and 7 years old. Of which my 11 year old who is also adopted and diagnosed Autistic, as well as numerous foster children who have been placed with me over the last 11 years. So I find this utterly ridiculous that I would not be able to offer the same love, care and stability to [A].
[A's] birth mother is aware of my address and has never caused me any problems, in fact I asked [the mother] how she would feel if I put in an application to adopt her daughter and she was fully supportive, I must also point out that my other adoptive daughter's birth family are also aware of my address yet this was never an issue even though her birth mother has multiple personality disorder and mental health issues.
Regarding my role as a foster carer, I live in a six bedroom house, so the space is not an issue, I have no intention of giving up foster care, I am more than capable of offering future placements when needed.
In reference to [the social worker's] suggestion that I get assessed and "on the list instead of jumping the queue" again I will say as a previous adopter and a foster carer with 11 years experience I feel that if I can offer this child a loving home and stable environment of which she is already accustomed to this will of course prevent any disruption in her routine/life. The child's needs are paramount and I have already proved to be an excellent carer of this and other children who have been placed with me and my family. I have also successfully adopted before, a child with special needs who has achieved more than it was ever thought possible due to her upbringing before she was placed with me.
As a family we feel that [A] fits perfectly into our lives, she is a very happy, contented little girl who is attached to both us and my extended family and friends. We love her very much and have no doubt that she will continue to thrive with the love, care and attention that she receives on a daily basis. I would also like to point out that The Guardian is full supportive of my wishes to adopt [A].
So I would like to request that my application to adopt be treated seriously alongside any other options being considered and could I please have a written response to my request."

15. On 9 October 2007 Coventry held a Looked After Review attended by the foster mother. By then her letter had been duly received. There was an acknowledgment in the record that she had expressed her wish to be considered as an adopter of A but that it was not the plan to pursue such a course and that Ms Branson "will respond to her written interest". At that meeting, and at other meetings held by Coventry on 11 and 22 October 2007, progress was swiftly made towards the identification of a couple as adopters of A; and on 7 November 2007 Coventry's Adoption Linking Panel approved such a match.

16. Meanwhile, namely on 17 October 2007, Coventry's application for care and placement orders referable to A had been determined in the family proceedings court. I will consider those proceedings in Section C below.

17. Unfortunately, notwithstanding the request in the foster mother's letter dated 2 October 2007 for a written response to it and notwithstanding Coventry's note on 9 October that Ms Branson would provide it, there was delay in its provision. At least, by a holding letter dated 22 October, Ms Branson assured the foster mother that the issues which she had raised in her letter would be discussed within Coventry and that she would receive a written response as soon as possible. But in the event Ms Branson's substantive letter in response was not even dated until 1 November and moreover was apparently not at once posted, with the result that the foster mother received it only on Saturday 10 November. Ms Branson wrote as follows:

"I have now had the opportunity to discuss the issue of [A] with [the social worker] and her manager … as to why a decision was made not to promote an adoption placement for her with you and to consider some of the issues you raised.
The decision not to pursue an adoptive placement with you was made considering the child's checklist of needs. Essentially it was considered that [A] should be placed out of Coventry given her family background and the fact she is clearly an easily identifiable child, notwithstanding your discussion with birth mother.
[The social worker] acknowledges the positive progress [A] has made in your care however it is important that her longer-term needs are considered. I do not propose to comment on circumstances surrounding the adoption of your daughter who was previously fostered by you.
It is important that the best family option for [A] is selected. This was addressed at the family finding meetings that are held to look at options and the outcome of these was that in the longer-term [A's] needs could be better met outside of your family.
As I understand, you have a busy household and a number of children who have special needs, one child as you have indicated being diagnosed as autistic and a son who has attachment issues and an eating disorder. Whilst [A's] placement with you may not have had a significant impact on your children to date this cannot be guaranteed for the future, as her development is uncertain, given her mother's learning difficulties and her potential emotional needs as an adoptive child.
Clearly the roles of foster carers and prospective adopters are different and [A] was placed with you as a foster child with a view to you being able to promote the permanency plan for her that was considered would best meet her long term needs.
[The social worker] rebuts the notion that she informed you to 'get assessed instead of jumping the queue'. [She] has stated that she suggested if you were interested in adoption then she advised you to request to be assessed as a potential adopter.
I accept you and your family have made attachments with [A] and she with you that no doubt will stand her in good stead for the future, however I am satisfied the decision not to pursue adoption of [A] by you was considered appropriately.
Should you wish to discuss this further please do not hesitate to ring."

18. Upon receipt of Ms Branson's letter, the foster mother sought at once to obtain legal advice. She approached lawyers on Monday 12 November; and, after two firms had in due course informed her that they would be unable to take her case, she approached Rotherham and Co and achieved in effect the almost immediate issue of her application for leave. In their skeleton argument Mr Cobb QC and Miss Potter, who represent Coventry before this court, suggested that the foster mother's application for leave should be "characterised as extremely late". I entirely disagree. The foster mother was in my view correct to await the written response of Ms Branson to her fully argued letter dated 2 October 2007, which she had specifically requested and which she had been assured would follow further discussion within Coventry. It is, rather, Ms Branson's response which in context must be characterised as extremely late. Forthwith upon receipt, the foster mother could not have acted more swiftly in taking legal steps to challenge Coventry's rejection of her candidacy for A's adoption.

Section C: The Issues in the Family Proceedings Court

19. As I will explain, the judge attached great significance to the nature of the disposal of the issues raised in the family proceedings court. Prior to giving birth to A, the mother had given birth to five children. In December 2006 all five children had been made the subject of care and placement orders. Upon A's birth Coventry at once took care proceedings referable to her; and it was by virtue of a succession of interim care orders that they were enabled to place her with the foster mother. In due course, after they had concluded that the mother could not adequately care for A even in the long term, Coventry also applied for a placement order referable to her. The applications were listed for hearing before the magistrates on 17 October 2007. A district judge and two lay justices constituted the bench. The non-marital father of A took in effect no part in the proceedings.

20. I need to survey what was said to and by the magistrates referable to the foster mother's aspiration to adopt A.

21. Reference to it was made in Mr Sanga's report to them dated 3 October 2007. In order to understand some of his comments, it is important to note that the foster mother had indicated that, were she not allowed to adopt A, she could not bring herself to cooperate in her transition to another adoptive home, with the result that she might have to be moved on a temporary basis to a second foster home from which the transition could duly be effected. The foster mother's stance in that regard may have been understandable in terms of her own emotions but, frankly, it was selfish and, to be fair to her, she changed it soon afterwards. Mr Sanga wrote:

"5.3 … [A] is currently in a temporary foster home and will need to move from this placement. The foster carer has indicated that she would like to adopt [A]. The local authority has considered the carer's circumstances and [A's] needs but it feels unable to support the foster carer. I feel that this is a disappointing situation and may mean that [A] will have to move from this carer to another carer and then to adopters.
Given [A's] age and needs to form her primary attachment then I feel that if the local authority is successful in obtaining a placement order then it needs to consider very carefully how it proceeds in placing [A].

7.3 As I mentioned already … [A's] foster carer has given an indication that she wishes to adopt her. The local authority has considered this approach but decided not to assess the [foster mother] because it feels that [A's] needs cannot be met within this placement. The foster carer is very unhappy with this decision and is looking to take steps to see if she can have this decision overturned. She has indicated that if she is unable to adopt [A] then she will not be able to work with any prospective adopters. This will obviously cause a lot of disruption for [A] and mean that she will have to endure an unnecessary move.
7.4 Given the circumstances I feel very worried about the impact that these moves may have upon [A]. I personally would not object to [A] remaining in her current placement but I understand that my role is very limited in this matter and I can only ask that whatever decision is made about [A's] future, careful consideration is made about how she is moved on."

22. Reference to the foster mother's aspiration to adopt A was presumably also made in the statements filed in the magistrates' court on behalf of Coventry, which were not placed in evidence in the present proceedings. There was no express reference to her candidacy in Coventry's final care plan filed in that court. There was, however, a reference in it that A would "move" to an adoptive placement; and it was in any event obvious to the court that Coventry were not favouring the foster mother's candidacy. Indeed in her brief oral evidence to the magistrates, of which we have a note, the social worker seems, both in examination in chief and in cross-examination on behalf of the mother and of A by Mr Sanga, to have articulated some of Coventry's objections to the foster mother's candidacy.

23. In their written reasons the magistrates noted that since birth A had been in a "secure, stable and successful foster placement" and that Mr Sanga had informed them that the foster mother had sought advice and had asked Coventry to assess her as a long-term carer. Indeed at the outset of their reasons, having referred to the applications made by Coventry, to Mr Sanga's support for them and to an argument, apparently made rather half-heartedly on behalf of the mother, that the hearing be adjourned in order for an assessment of her parenting skills to be undertaken, they wrote:

"A further alternative is that we should adjourn to enable [A's] current foster carer to seek legal advice and seek leave to become a party to these proceedings, should that be her intention."

It was the mother's advocate who in her final submissions had articulated the possibility of adjournment in order to see whether the foster mother intended apply to adopt A, which was perhaps slightly different from her becoming a party to the existing proceedings. At all events the magistrates made no further reference to an adjournment for any such purpose: unsurprisingly it did not appeal to them. Having explained why an adjournment for assessment of the mother was inappropriate and why the interests of A required that she be subject not only to a full care order but also to a placement order and that the mother's consent to her placement should be dispensed with, the magistrates concluded with the words "we make that order as that will allow the Local Authority to place her with potential adopters".

24. Inevitably, in my view, the magistrates did not in their reasons indicate, still less find, that the optimum adoptive placement for A was a home other than that of the foster mother. For how could they have given any such indication, still less made any such finding? The foster mother had not been present before them in order to press her candidacy; nor had she even been invited to be present. There was no evidence on the subject other than briefly from Coventry and in short references in Mr Sanga's report. The application for a placement order required the magistrates to consider the principle whether the best interests of A required that she be adopted but not to determine the identity of the optimum adoptive home for her. In that regard they noted that the foster mother had sought legal advice and were informed that she might seek an adoption order referable to her. In my view it would be fanciful to consider that on 23 November the judge inherited a "decision" by the magistrates that A's adoption should not be by the foster mother.

Section D: The Reasoning of the Judge

25. There is no official transcript of the judge's judgment dated 23 November 2007. In the light, however, of Coventry's intention to place A on 26 November and of the foster mother's intention forthwith to approach this court, Mr Goodwin and Miss Potter agreed a full note of the judgment; submitted it to the judge by email on about Saturday 24 November; and received his response on Sunday 25 November, in which he congratulated them for having provided a more accurate note of judgment than any other in his judicial experience. It certainly reads with total clarity and fluency. Nevertheless it is important for us to remember that, although later approved by him, the judgment was given ex tempore at 5:15pm; and this court must be careful not to seize upon particular words in the judgment and to invest them with a significance which, in his unconsidered choice of them, the judge did not intend them to carry.

26. The contention of Mr Goodwin to the judge was either that the application for leave should be granted or that the hearing should be adjourned in order that Mr Sanga should at any rate file a report and preferably also give oral evidence to the judge. The judge rejected the application to adjourn in the following words:

"I do not consider that that is necessary or appropriate. For the purpose of this hearing I am prepared to accept that the Children's Guardian's views are as Mr Goodwin has presented them to me."

Although, as I will explain, the judge again referred to the views of Mr Sanga when surveying the outcome in the family proceedings court, he made no further reference to the fact that he supported the foster mother's application for leave.

27. Many advocates less measured than Miss Judd QC would have submitted to us that it almost followed as night the day that, were a Children's Guardian to be appearing to suggest that in his opinion, albeit at that early stage, it would be preferable for A to be adopted by her foster mother rather than by anyone else, then the foster mother had a reasonable prospect of success in her proposed application for an adoption order; that accordingly it would be in A's interests for it to be made; and that such would be factors of great, probably determinative, significance in the discretionary exercise referable to the grant of leave. Miss Judd, in my view wisely, has not gone quite so far. It seems to me, however, that, before refusing the foster mother's application for leave notwithstanding Mr Sanga's support for it, the judge was required to consider the stance of Mr Sanga much more carefully than he did; to consider the reasons why in Mr Sanga's opinion it would be in the interests of A to be adopted by the foster mother (or, in that in this court Mr Sanga has somewhat refined his stance, why in his opinion it would be in the interests of A that the foster mother's candidacy be fully assessed and that she should be given leave to apply for an adoption order); to consider why at that stage Mr Sanga did not accept the validity of the various objections to her candidacy on the part of Coventry; and to give reasons in the time-honoured way for rejecting Mr Sanga's views. It seems to me moreover that the judge's consideration of Mr Sanga's stance could not satisfactorily be undertaken from a study of Mr Pendle's brief attendance note and should have been collected at least from a report by Mr Sanga such as Mr Goodwin aspired to place before the court at an adjourned hearing and preferably also from a brief attendance of Mr Sanga in the witness box in order that the judge could broadly discern whether his views could prima facie withstand even Miss Potter's attempted demolition of them in cross-examination. In my view, therefore, the judge fell into error in relation to this first issue, namely whether to adjourn prior to any refusal of the application.

28. The judge rightly sought to pay regard to the various reasons why Coventry had come to a conclusion adverse to the foster mother's candidacy. He recorded that Miss Potter had identified three of Coventry's objections as being of particular importance to them. The first was that the foster mother already had a number of children for whom to care, including her adopted child who was autistic and a natural child who had attachment issues and an eating disorder. I have no doubt that this is an objection which has the potential to be of substantial importance and, were the enquiry into the foster mother's candidacy to go forward, it would need the closest consideration. The second and third objections identified by Miss Potter, however, seem to me, prima facie, to carry much less force. The second was that, as is obvious, the roles of a foster mother and of an adoptive mother are different and that the foster mother had come into A's life as the former and not the latter. While it would be absurd to consider that suitability to foster A equated to suitability to adopt her, it would in my view be equally absurd to conclude that suitability to foster her equated to unsuitability to adopt her. Indeed, with Coventry's consent, the foster mother had already adopted one of her foster children. Third, Miss Potter pressed upon the judge that Coventry hoped to place A "out of Coventry". The judge described how Miss Potter explained this point as follows:

"She says that originally the … mother's own view was that [A] should be placed outside Coventry. In addition I am told that it is anticipated that prospective adopters would retain the name [A] which is an unusual though attractive name and one that is easily recognisable. Added to that is the fact that the… mother is 6 feet 3 inches tall and it is likely that [A], when a teenager, will be a tall young lady. [A] is also (as Miss Potter puts it) "the spitting image of her mother". All of this combines in the mind of [Coventry] to lead it to be concerned of the risk that if [A] remained in Coventry, her origins would very quickly be found out."

Apart from noting that Mr Goodwin had submitted that the three objections identified by Miss Potter were misplaced and that Mr Sanga did not agree with them, the judge made no further reference to them. In my view the third objection identified by Miss Potter was, prima facie, invalid. Indeed part of its premise appears to have been false. For it now seems that the adopters favoured by Coventry were proposing to choose for A a first name "L" and to use A only as a middle name. More importantly, the basis of any adoptive placement of A with the foster mother would not be that her biological parentage should be kept secret at all: for the identity and address of the foster mother were well known to the mother and, were the placement with her to be converted into an adoptive placement, then, irrespective of any provision for direct contact between A and the mother, the placement would be an open one and the need for geographical distance between A and the mother would be non-existent. Of course consideration would be required to be given to whether, however unlikely in the light of her approval of the placement, the mother might in the future use her knowledge of it in order to disrupt it; but, no doubt wisely, Miss Potter was not seeking to make that point.

29. I believe that, had this highly respected judge had greater time in which to address the application for leave and had drawn down the offer of fuller assistance from Mr Sanga, his appraisal of Miss Potter's second and third objections could not have remained uncritical.

30. No doubt the judge was right to consider that relevant to the exercise of his discretion were the delay which the grant of leave would cause to the finalisation of the programme for A's adoption and the arrest of her introduction to the adopters whom Coventry had found and which by then was well under way. I say so notwithstanding that, were a judge to consider that there was a real prospect that in adoption proceedings a court would find that it would serve the welfare of a child, throughout her life, to be adopted by her foster mother rather than by anyone else, it would in my view rarely be a proper exercise of his discretion for questions of delay to precipitate a refusal to allow the foster mother's application to be made.

31. In respect of the delay the judge properly reminded himself that, even were he to grant leave, s.44 of the Act precluded the foster mother's issue of an application for an adoption order for three months. The judge noted that Coventry would be obliged to undertake an assessment of her candidacy but observed that it was highly unlikely that A's future would be settled before April 2008 and that it was more likely to be later. Notwithstanding the highly efficient despatch of family business in the county court in Coventry, I have no doubt that it was in effect unrealistic for the judge even to be considering a conclusion as early as April 2008 of an application to be issued only late in February 2008 and that it was not just more likely but inevitable that it would be later. The judge went on, also correctly, to observe that a removal of A from the foster home, if such should be the ultimate decision, would be more difficult for her then than if effected immediately. The judge proceeded as follows:

"Although there has been no formal assessment, the local authority knows this foster carer very well indeed since she has been a foster carer for 11 years. In my judgment the local authority was entitled to reach the conclusion it arrived at without the need for a full blown assessment.
Whilst I cannot say that [a local authority] assessment would not be successful, at best the outcome is very uncertain. Against that, what is very certain is that if I allow the foster carer's application to go ahead then it will cause delay in settling this child's future. Set against that, a prospective adoptive placement has been found. The Adoption Panel has approved the match. Introductions have begun. Placement is due to take place on Monday."

32. Powerful points are made by the judge in that part of his judgment. Nevertheless it has curious features. The critical eye at once falls upon the assertion that Coventry were "entitled" to reach their conclusion; and the criticism might be that the judge was there asking himself a question apt more to a judicial review of Coventry's decision adverse to the foster mother than to an enquiry into whether she should have leave to apply for an adoption order and, as relevant thereto, whether such an application would have a real prospect of success. Had that sentence stood alone, I would have regarded it as unfair to the judge to pick it out of an impromptu judgment and to base substantial criticism upon it. But take also the next sentence, namely that the outcome of assessment was very uncertain. There, submits Mr Cobb, we find in effect a legitimate conclusion by the judge that the foster mother's application had no real prospect of success. In my view we find no such thing. The judge was concluding only that the foster mother had less than a real prospect of persuading Coventry to support her candidacy. Unfortunately he never asked himself one of the most important questions, namely whether there was a real prospect that she could persuade the court that adoption by her was the optimum placement for A. The judge's approach was insufficiently independent of Coventry's approach; and I consider it symptomatic of that deficiency that he should have asked himself whether Coventry had been "entitled" to reach their conclusion.

33. Perhaps, however, the matter of greatest controversy in this proposed appeal has been the weight placed by the judge upon the outcome in the family proceedings court. It is clear that Miss Potter managed to persuade the judge that the proper place for ventilation of the issue as to whether the optimum adoptive placement of A was with the foster mother had been the hearing in that court on 17 October 2007. Early in his judgment the judge observed that neither the mother nor Mr Sanga had sought to appeal against either of the orders then made. He also observed that the foster mother could have applied to be made a party to those proceedings. Later the judge said:

"Mr Sanga … says that at the time of the final hearing of the care proceedings he was unaware of the steps open to the court to refuse to make a care order if the plan was not considered in the interests of the child. I find that utterly remarkable … He is an experienced Children's Guardian and had a very experienced solicitor. The mother was also represented by an equally experienced, and in my judgement highly competent, solicitor. Although the case was in the family proceedings court, it was presided over by a full time judge who I have no doubt was aware of the court's duty rigorously to scrutinise the Final Care Plan. The court knew that the Local Authority was not intending to assess the foster mother as an adopter. The court approved the Care Plan and made a care order and a placement order, therefore leaving it exclusively to the Local Authority to take the matter forward. Both the Children's Guardian and the mother could have appealed if they thought this was wrong. They did not do so."

Ultimately, just before announcing his decision to refuse leave, the judge said:

"I also take into account the fact that the local authority's plan for this child has been completely and utterly transparent. The Children's Guardian knew on 17 October 2007 and reflected it in his final report. The mother knew about it. So did the justices. I have no doubt that the Care Plan was carefully scrutinised. The justices approved it. I see no reason to disturb their decision."

34. I have already given my reasons for concluding that it was wrong for the judge to describe the magistrates as having reached any "decision" that A's adoptive placement should not be with the foster mother. Both when he was a judge of the Family Division and as a judge of this court, Wall LJ has been the inspiration behind the crucially valuable jurisprudence that, prior to making a care order, the court should carefully scrutinise the local authority's care plan and, if not satisfied that any of its components serves the interests of the child, should decline to make the care order. In giving the judgment of this court he said so most recently in Cheshire CC v. SW [2007] EWCA Civ 232, at [30], being a passage cited by the judge. In my view, however, a care plan serves to explain how a local authority would exercise the powers invested in it by a care order. Most importantly, there is under the present system no facility for the court to survey implementation of the plan; it may only, in anticipation, survey the local authority's proposals for its implementation at the time when the order is sought. It was clearly necessary for Coventry, in their care plan, to explain that their proposal was for A to be adopted; and to set out their ancillary proposals, for example in relation to the cessation of direct contact between A and the mother following placement. In the event of course, the placement application, when issued, covered the same ground. I am afraid, however, that I do not agree with the judge that the proper forum for consideration of the identity of the optimum adopter or adopters for a child is the court which makes the care and placement orders. For, in terms of the adoption of the child and in contradistinction to the child's committal into care, the placement order is not the court's last word. Its last word is articulated when the adoption order is made; and any court which makes a placement order knows that any issue in relation to the identity of the optimum adopter or adopters of the child can be ventilated in an application for an adoption order, which is precisely what this foster mother aspires to make. In my view the magistrates were rightly unattracted to the suggestion, albeit that it was later endorsed by Judge Bellamy, that the foster mother might in some way join in the proceedings before them. As a judge of the family justice system for almost 15 years, I have never encountered a case in which an aspiring adopter participated in the hearing of proceedings relating to whether a child should be placed for adoption, or should be freed for adoption under the old law set out in s.18 of the Adoption Act 1976. For the law provides a forum in which issues as to the identity of the optimum adopter can later be ventilated. In my view, therefore, the requirement for close scrutiny of the care plan should in principle not extend to an address of any issue as to the identity of the optimum adopter or adopters for the child.

35. In the end Mr Cobb has been constrained somewhat to retreat from the proposition that the court which hears care and placement applications is the appropriate forum for resolution of any issue about the candidacy for adoption of, for example, a foster mother. He still maintains, however, that it is an appropriate forum. Challenged to furnish a reported example of resolution of such an issue in such proceedings, he cites the decision of Hedley J. in Re R (Care: Plan for Adoption: Best Interest) [2006] 1 FLR 483. In that case Hedley J. held on appeal that, while a family proceedings court charged with scrutinising a care plan for adoption needed to be satisfied that the local authority could deliver on their plan and therefore that their best interests panel had indeed resolved that the child be adopted, it had been wrong for it to decline to make the care order until satisfied that the local authority's linking panel had approved a match of the child with specific adopters. So, on the face of it, the decision is hardly helpful to Mr Cobb. He relies however on the judge's dicta, at [17], that, exceptionally, it may be appropriate for a court hearing an application for a care order to scrutinise the credentials of proposed adopters; and the example given by the judge is of a child with special needs, adequately cared for by relatively elderly members of the wider family, and of the court's need in such difficult circumstances to weigh, including by reference to the credentials of the proposed adopters, whether adoption is truly in the child's interests. I respectfully agree with Hedley J.'s observations. But they are of no assistance to Mr Cobb. To say that the credentials of proposed adopters may exceptionally need to be considered in care proceedings in order that the court should better be able to reach the central decision whether the child should be removed from his family and adopted is not to say that care or indeed placement proceedings are an appropriate forum for resolution of an issue between a proposed adopter and the local authority as to the merits of her candidacy.

36. It follows that in my view the judge's repeated references to the alleged facility for the mother and for Mr Sanga to have appealed against the orders made on 17 October 2007 were misplaced. The magistrates decided only that A should be placed in permanent care and that she should be placed for adoption. Mr Sanga, for his part, entirely approved both those orders. Had he sought to appeal to the High Court on the basis that, while he approved the orders, he did not accept the validity of the evidence given by Coventry in support of their contention, albeit not properly set out in their care plan, that the foster mother's home was not the optimum adoptive placement for A, the court would in my view have rejected his proposed appeal as misconceived upon the basis not only that there had been no decision referable thereto but also that the proper forum for resolution of such an issue would be future adoption proceedings. It follows that I cannot associate myself with the judge's criticisms of Mr Sanga.

37. I consider therefore that in exercising his discretion the judge paid attention to the views of Mr Sanga at a level below the requisite minimum, failed to ask himself one of the highly relevant questions, namely whether the foster mother's proposed application had a real prospect of success before the court, and gave substantial weight to a perceived factor, namely the "decision" of the magistrates, which should have carried no weight at all. It is therefore open to this court to exercise the discretion. Although one obvious course open to the judge would have been to adjourn the hearing for Mr Sanga to give proper evidence, another course which in my view was open to him on such evidence as he had was to grant the application. The only course not open to him was the course which he took. Mr Cobb accepts that, if we are satisfied that the judge's exercise of discretion was flawed, we should exercise it ourselves rather than remit it to him for re-exercise in the light of evidence from Mr Sanga. In my view there is ample material to lead us to conclude that we should not only grant permission to the mother to appeal, allow the appeal and set aside the judge's refusal, but also grant her leave to apply for an adoption order. But she must not misunderstand the nature of such leave: it may be that, on analysis, the court will uphold some of Coventry's objections to her candidacy, if maintained, and indeed that it will regard them as determinative. She would be most unwise to allow any sensation to develop in her mind and in that of her children – and, as she becomes more sentient, in A herself – that she is now already in effect a permanent member of the family.

Lord Justice Moore-Bick:

38. I agree.

Lord Justice Ward:

39. I also agree.