B v Birmingham City Council & Ors

An unlawful placement for adoption may nevertheless be an effective placement for the purposes of section 20(1)(b) of the Adoption Act 1976. Section 56 may impose criminal liability without invalidating the placement. Section 56 applies to a local authority acting as an adoption agency, and paragraph 19(2) of Schedule 2 to the Children Act 1989 does not impliedly disapply it. The conditions for a section 20 application may need to remain satisfied throughout the application. A later section 55 order has prospective effect and cannot retrospectively validate an earlier unlawful placement.

Parents whose four children had been freed for adoption sought revocation of the freeing orders under section 20 of the Adoption Act 1976. Two children had been placed abroad with prospective adopters by the local authority, acting as an adoption agency, without prior court authority under section 55. The parents argued that the placement breached section 56 and therefore was not a placement for adoption within section 20(1)(b).

The deputy High Court judge dismissed the applications concerning those two children, holding that sections 55 and 56 did not apply to the local authority and that paragraph 19(2) of Schedule 2 to the Children Act 1989 authorised the placement. The Court of Appeal considered whether the placement was unlawful, whether it nevertheless satisfied section 20(1)(b), and, alternatively, the effect of a subsequent section 55 order.

1. Appeal dismissed. Permission to appeal was granted because the issues were difficult and significant. The deputy judge reached the correct result, although for different reasons.
2. By a majority, Neuberger LJ and Gage J held that section 56(1) of the Adoption Act 1976 applied to a local authority acting as an adoption agency. Paragraph 19(2) of Schedule 2 to the Children Act 1989 did not impliedly disapply section 56. Paragraph 19(6) expressly disapplied section 56 only where court approval was given under paragraph 19(1). The local authority therefore acted in breach of section 56 by placing the children abroad without prior court sanction. Thorpe LJ dissented on that issue, considering that the local authority was not liable to prosecution under section 56.
3. The court unanimously held that the breach did not prevent the placement from being effective for section 20(1)(b). In ordinary language the children had been placed for adoption and had their home with the prospective adopters. Section 56 made the act unlawful and imposed penal consequences, but did not state that the placement was ineffective. The contrast with section 24(2), which expressly restricts an adoption order following a breach of section 57, supported that conclusion. The welfare purpose of the 1976 Act, reflected in section 6, also supported treating the placement as effective.
4. Neuberger LJ further held, alternatively, that the conditions in section 20(1)(a) and (b) may need to remain satisfied throughout the application. If the placement had not been effective under section 20(1)(b), the subsequent section 55 order would have caused the application to fail prospectively. It did not retrospectively validate the earlier breach, but the court had power to make it and, on the exceptional facts, was right to do so.

• Court of Appeal (Civil Division): [2004] EWCA Civ 515. Permission to appeal granted; appeal dismissed.
• High Court of Justice, Family Division: The deputy High Court judge dismissed the section 20 applications concerning C and T on 21 November 2003. Applications concerning D and S were directed to trial.
• Birmingham County Court: Freeing orders for adoption were made on 20 December 2001.