Decisions of the Court of Appeal and the High Court earlier this summer must have sent tremors through local authority adoption services and prospective adopters. The impact both for adoption services trying to plan for the future of vulnerable children and for adopters could be profound.

The cases relate to W, a little girl born in November 2012.

The parents separated due to local authority concerns about the mother’s mental instability. The children remained living with their father, save for W who was removed at the age of 5 weeks from her father’s care. The local authority had increasing concerns about the father’s ability to cope with all four children and W had a fall which the local authority thought was suspicious. They applied for care orders with a care plan for the eldest two children to be placed in long-term foster care and for the younger two to be placed for adoption.

W was 5 weeks old when the proceedings began. She was removed under an interim care order and placed in foster care, where she remained until she was placed for adoption.

The case was dealt with by a district judge in September 2013. The parents had conceded that there were grounds for the judge to consider making care orders or supervision orders but the father sought to care for all four children. The judge rejected the local authority’s proposals in relation to the three oldest children and approved their placement with the father under supervision orders. A full care order was made in respect of W and approval was given for placement for adoption.

W was placed with prospective adopters in January 2014. She was 14 months old and had been in foster care for virtually the whole of her life. Her adopters filed an adoption application in May 2014.

What had the father been doing after the decision of the district judge?

He had been unhappy about the fact that 3 of his children had been placed back with him – but W hadn’t. The father issued a notice of appeal against the district judge’s decision which was 20 days outside the 21 days provided the Rules. Permission to appeal out of time was refused and even if the appeal had been lodged in time permission would have been refused anyway. The father did not apply for an oral renewal hearing of his permission application within 7 days established. This allowed the local authority to place W with prospective adopters.

Once they had applied for an adoption order, the father went into action again.

There was then a series of overlapping applications. The father sought leave to oppose the adoption order but his application was refused. He sought permission to appeal that refusal. He applied to renew the application for permission to appeal the original placement and care orders for which an extension of time for appealing was necessary.

Legally it became very complicated! Permission to appeal the care and placement orders was refused but the father was granted leave to oppose the adoption application. The father appealed the refusal of permission to appeal the care and placement orders.

The appeal was allowed. The Court of Appeal decided, not that the district judge had made the wrong decision for W, but that the quality of his analysis and reasons was “insupportable.” The final care and placement orders were set aside and substituted with an interim care order. The father had also been given permission to oppose the adoption in December 2014.

The Court of Appeal made it clear that deadlines should be kept to. It said that although the statutory provisions requiring care cases to be disposed of within 26 weeks did not expressly apply to appeals, the timetable for an appeal in these cases had to be established in a manner which was compatible with the general principle that any delay in determining the upbringing of a child was likely to prejudice the welfare of the child. The impact upon the welfare of a child if placement had to be put on hold to permit a late application for permission to appeal was plain.

The court said that every effort should be made to avoid such a situation. The court laid down some guidelines about what should be said where a final care and placement order was made about the time limits on appeals.

But it still allowed the appeals – despite the fact that it knew that “W was welcomed into the family of her prospective adopters on the basis that this was to be her family for life”. They referred to a “close and loving arrangement”.

W is almost 3. She has spent more than half her life with her prospective adopters. The judgment raises serious questions about how local authorities can make long term plans for the damaged children in their care.

Father felt the district judge had made a mistake but he failed to comply with court deadlines, not by days or weeks but by months. He may have had bad advice. But all the while W was growing up and needing security. How is a local authority to plan if a decision made in good faith based on a judgment of the court can be
overturned 18 months later?

These decisions made by the courts have turned upside down the lives of W and the prospective adopters. Is it any wonder that the number of people putting themselves forward to adopt has fallen? Who would choose to invest their lives and their emotions in a child if the court is simply going to treat them as glorified caretakers?

A High Court judge had to decide where the best interests of W lay in the adoption application. She decided to return W to her father. I understand that the prospective adopters are hoping to appeal this decision.

For any legal advice in relation to adoption, please contact the Adoption team on 01484 538421.