F & H (Children), Re

Where a child is settled with foster carers and their application to be approved as adopters is pending, the court should consider whether making a final care order would prejudice the carers’ ability to argue for maintaining the placement if approval is refused. A final care order places the local authority in control and may force the carers to seek discharge and a residence order. That disadvantage is not merely technical. Fairness in public law children proceedings extends to people who are not yet parties but are profoundly involved and may become parties. A renewable interim care order may preserve a fair opportunity without prejudicing the child or other parties. A judgment that records but does not answer the material prejudice argument is deficient.

The mother and guardian of C appealed against a final care order made by Chelmsford County Court on 7 October 2002. C had lived with foster carers, Mr and Mrs T, and all parties agreed that she should remain with them permanently. Their application to be approved as adopters was pending. The mother and guardian sought a three-month postponement so that the assessment could be completed, whereas the local authority sought an immediate final care order. The threshold was not disputed. The central issue was whether an interim care order should continue pending the adoption assessment, preserving the carers’ opportunity to argue for residence if adoption approval was refused.

Appeal allowed. Lord Justice Thorpe delivered the judgment, and Mr Justice Munby agreed.

1. The central issue was the timing of the final care order, not the threshold for making a care order. If Mr and Mrs T were approved as adopters, delay would cause no prejudice. If approval were refused, however, there would be a conflict between maintaining C’s placement and securing her future by adoption.
2. Lord Justice Thorpe held that an immediate final care order would materially prejudice the foster carers’ ability to argue that maintaining the placement was preferable. The order would put the local authority firmly in control and require the carers to seek discharge of the care order and a residence order.
3. That prejudice was substantive rather than technical. Although the foster carers were not parties, they were profoundly involved and potential parties. Public law orders should recognise the need for fairness to all persons crucially affected by them.
4. An interim care order, renewable in the County Court, would preserve a fair opportunity for the carers while causing no prejudice to C or any other party. The lower court’s judgment was deficient because it recorded the prejudice argument but did not answer it.
5. The final care order made on 7 October was set aside. An interim care order was substituted for 28 days, to be renewed in the usual way. The case was listed for 13 January to consider the local authority’s application to terminate contact under section 34(4). There was no order for costs, save for detailed assessment of the appellant’s Community Legal Services Funding costs.

• Court of Appeal (Civil Division) — Permission granted and appeal allowed; the final care order was set aside and an interim care order substituted: [2002] EWCA Civ 1770.
• Chelmsford County Court — His Honour Judge Darroch made a final care order on 7 October 2002.