B v Birmingham City Council & Ors

The Court of Appeal considered the interaction between the Adoption Act 1976 and the Children Act 1989 where a local authority placed children abroad with prospective adopters without prior court authority. The court held that Section 56 of the Adoption Act 1976, which makes it unlawful to send a British child abroad with a view to adoption except under an order under Section 55, extends to local authorities and was contravened by the placement. Nonetheless, an unlawful placement for adoption still constituted a placement "for adoption" within the meaning of Section 20(1)(b) of the 1976 Act, so the parents’ right under Section 20 to apply to revoke freeing orders did not arise in respect of the two children who remained abroad. The court also upheld the judge’s grant of a Section 55 order to the overseas adopters made after the placement, and directed that the parents’ applications in respect of the two children who had been returned to this jurisdiction should proceed to trial.

Background and parties. The local authority obtained care orders and freeing orders under the Adoption Act 1976 in respect of four children. The authority then identified overseas prospective adopters and placed all four children abroad on 13 August 2002. Two children (S and D) were later returned to foster care in the United Kingdom; two children (C and T) remained with the overseas adopters. The parents applied under Section 20 of the Adoption Act 1976 (applications issued 13 February 2003) to revoke the freeing orders. His Honour Judge Wood dismissed the parents’ applications in relation to C and T on 21 November 2003. The parents sought permission to appeal to the Court of Appeal.

Nature of the claim / relief sought. The parents sought revocation of freeing orders under s20(1) of the Adoption Act 1976 on the grounds that, after twelve months from the freeing orders, no adoption order had been made and the children did not have their home with persons with whom they had been placed for adoption.

Issues framed by the court. (i) Whether the placement abroad on 13 August 2002 was unlawful by reason of s56 of the Adoption Act 1976. (ii) If unlawful, whether an unlawful placing nonetheless falls within s20(1)(b) so as to prevent a s20 application. (iii) The effect of a subsequently made s55 order (5 December 2003) giving parental responsibility to the overseas adopters.

Court’s reasoning and disposition. On issue (i) the court held that the plain words of s56 apply to "any person" and therefore extend to a local authority acting as an adoption agency; paragraph 19(6) of Schedule 2 to the Children Act 1989 disapplies s56 only where the court has given approval under paragraph 19(1), and paragraph 19(2) does not implicitly disapply s56. Thus the local authority’s placement abroad without prior s55 authority infringed s56, although any criminal prosecution was time-barred.

On issue (ii) the court concluded that as a matter of ordinary language and having regard to related provisions (including ss19 and 30 of the 1976 Act) an unlawful placing could still amount to a placing "for adoption" under s20(1)(b). The policy of s20 (avoiding adoption limbo and protecting the child's welfare) and authorities considered led the court to treat the placement as effective for s20 purposes, so the parents’ s20 applications in respect of C and T failed. On issue (iii), even if the parents had rights at an earlier date, the subsequent s55 order conferred prospective court sanction and would have defeated a s20 application made after that order.

Subsidiary and procedural points. The Court granted permission to appeal but dismissed the appeal. The judge ordered that the s20 applications relating to the two children returned to the United Kingdom (S and D) be listed for trial.

Appeal dismissed. The Court concluded that the local authority’s placement abroad contravened s56 of the Adoption Act 1976, but an unlawful placement nonetheless constituted a placement "for adoption" within s20(1)(b) so that the parents’ s20 applications in respect of the two children remaining abroad failed; additionally, a later s55 order conferred prospective court authority. Accordingly the judge’s dismissal of the parents’ applications in respect of C and T was upheld.

Appeal from His Honour Judge Roderick Wood QC (Family Division), judgment of 21 November 2003 dismissing parents' s20 applications in relation to two children; appeal heard in the Court of Appeal (Civil Division) and decided 28 April 2004 (neutral citation [2004] EWCA Civ 515). Prior proceedings: freeing orders made by His Honour Judge Hamilton in Birmingham County Court on 20 December 2001; placement abroad 13 August 2002; parents’ s20 applications issued 13 February 2003; s55 parental responsibility order granted by Judge Wood 5 December 2003.