Re F (a child) (placement order) [2008] EWCA Civ 439, [2008] All ER (D) 09 (May)
Court of Appeal, Civil Division
Thorpe, Wall and Wilson LJJ
1 May 2008
Section 24(5) of the Adoption and Children Act 2002 (ACA 2002) cannot be interpreted so as to include the application for leave to make an application.
Stephen Cobb QC and M Hancock for the father.
Joanne Briggs for the local authority.
Gerardine Buckley for the mother.
The parents had a casual relationship which resulted in the birth of a child. Initially the father was not aware that he was the father. Care proceedings were issued by the local authority. The father was not served with those proceedings, but later a DNA test established his paternity of the child. In July 2007, the local authority adoption panel recommended adoption. The father was served with the proceedings, but took no part as he was in hospital. On 17 August, the local authority obtained care and placement orders and moved the child to foster parents. In January 2008, the father learnt that the adoption plans for the child were well advanced and discovered that while the child had not been placed she had been to a matching panel. The father sought leave to apply to revoke the placement order.
On 15 January, the potential adopters met the child for the first time. On 17 January, the father faxed to the local authority a letter stating that he understood that a placement order had been made. He referred the local authority to ACA 2002, s 24(5) and asked it to confirm that the child had not yet been placed. No response was received and the child was placed with the prospective adopters on 29 January. At the hearing of the father’s application on 30 January, the local authority submitted that it was powerless to intervene given the terms of ACA 2002, s 24(5). The judge upheld the local authority’s submissions. The father appealed.
lord justice Wall:
Section 24(5) of ACA 2002 provided:
“Where —a) an application for the revocation of a placement order has been made and has not been disposed of, and (b) the child is not placed for adoption by the authority, the child may not without the court’s leave be placed for adoption under the order.”
The conduct of the local authority adoption agency had been “disgraceful”. That was not a word his lordship used lightly.
Justice not only had to be done but be seen to be done. That was even more important in cases involving children, which were heard in private. In the instant case, the agency quite deliberately set out to prevent the father from being heard. The fact that its workers might have genuinely believed that in so doing they were acting in the best interests of the child concerned was at best irrelevant and at worst dangerous. The conduct of the agency was an abuse of power, and wholly unacceptable.
The father identified three questions as central to the appeal: (i) whether or not the wording in ACA 2002, s 24(5) could be interpreted to include the application for leave to make an application; (ii) whether or not the wording in
s 24(5) should be interpreted in that way to give effect to the European Convention on Human Rights (the Convention) rights of the father to a fair hearing, and to family life; and (iii), if not, whether or not s 24(5) was incompatible with the Convention.
The answer to the first question was plainly “no”, and that answer effectively disposed of the appeal. The answer to the second question was also “no”. The section was also compliant with the Convention and therefore no question of a declaration under the Human Rights Act 1998, (HRA 1998) s 3 arose.
His lordship referred to Re M (children) (placement order) [2007] EWCA Civ 1084, [2007] All ER (D) 14 (Nov).
Section 24 had to be read in the context of the overall scheme of ACA 2002. Counsel for the father accepted, as he had to, that Parliament had the right to limit the class of persons entitled to apply for the revocation of placement orders. He also accepted that the imposition of the leave filter in s 24(2) was legitimate, and did not constitute a breach of the Convention.
Once it was accepted that s 24(2) was HRA 1998 compliant, it was evident that Parliament had drawn a very clear line between an application for leave to apply for the revocation of a placement order, and the substantive application to revoke.
Against that background, it was quite impermissible to read the words “or an application for leave to apply for the revocation of a placement order” into s 24(5). The two were quite distinct, and Parliament clearly intended that s 24(5) should only apply where a substantive application for the revocation of a placement order had been made—in other words, the applicant had got over the leave hurdle, and was making a substantive application which, consequent upon the grant of leave, would be likely to have been perceived as having a real prospect of success.
If Parliament had intended to include applications for leave to apply for revocation orders in
s 24(5) it would have said so. It had not.
Alternatives
One of two things should have happened in the instant case. First, the letter from the father’s solicitors dated 17 January should have contained an additional paragraph: “We invite you to give an undertaking that you will take no steps to place (the child) with prospective adopters pending the hearing of our client’s application. If that undertaking is not received by 10.00am on 18 January, we shall apply without notice in the first instance to the county court for an order in those terms.”
The county court had such jurisdiction to grant such an injunction and would, moreover, have exercised it as a temporary, holding measure, until both sides could be before the court.
Alternatively: (i) the agency should have replied promptly to the letter of 17 January; and (ii) it should have explained that its plans were at an advanced stage of preparation. It could then itself have applied to the court, on short notice, for leave to place the child for adoption under ACA 2002, s 24(5).
Either way, there would have been a hearing on the merits. Justice would have both been done and been seen to be done.
The appeal would be dismissed.
Lord Justice Wilson delivered a concurring judgment and Lord Justice Thorpe dissented.
