London Borough of H v M & Anor

Approval under paragraph 19 of Schedule 2 to the Children Act 1989 may authorise a child in local-authority care to live abroad where the statutory safeguards are satisfied. Under the amended scheme, paragraph 19(9) prevents approval only where the local authority is actually placing the child for adoption with prospective adopters. That point is reached when the appropriate adoption panel has considered and approved the proposed adoptive match with the particular family. Approval in principle for adoption, or approval of the carers as foster carers, is insufficient. The transitional provisions preserved pending applications under section 55 of the Adoption Act 1976, but did not prevent paragraph 19 approval under the new law.

A, a child in the care of the London Borough of H, was to move from England to Germany to live with his maternal half-brother and the half-brother’s wife. The local authority hoped that the placement would ultimately lead to adoption in Germany, but the proposed carers had been approved only as kinship foster carers and had not been approved as adopters for A.

A section 55 application under the Adoption Act 1976 had been validly made before the commencement of the new adoption regime, but no section 55 order could yet be made. The issue was whether the court could authorise A’s immediate relocation under paragraph 19 of Schedule 2 to the Children Act 1989, having regard to the transitional provisions and the prohibition in paragraph 19(9) on use of that route where a child is being placed for adoption.

1. Approval granted. The court granted approval under paragraph 19 of Schedule 2 to the Children Act 1989 for the local authority to arrange for A to live in Germany. The statutory conditions for approval had been satisfied.
2. Section 33 of the Children Act 1989 was not an appropriate alternative route. Paragraph 19 contained more extensive safeguards for the child’s welfare abroad, and section 33(8) expressly excluded arrangements governed by paragraph 19.
3. The application for paragraph 19 approval had been made after 30 December 2005. In the absence of a saving provision for pending paragraph 19 applications, the amended form of paragraph 19 applied. Section 56 of the Adoption Act 1976 had been repealed, subject to transitional provisions, and section 85 of the Adoption and Children Act 2002 was the effective restriction on removal for adoption.
4. Paragraph 19(6) disapplied section 85 where the court approved the child’s residence outside England and Wales. Paragraph 19(9), however, prevented paragraph 19 approval where the local authority was placing the child for adoption with prospective adopters.
5. The phrase “placing a child for adoption with prospective adopters” required more than an adoption plan in principle or approval of the carers as foster carers. The local authority had to have decided, following consideration by the appropriate adoption panel, that the proposed adoptive match with the particular family was suitable for the child. That decision had not been reached in this case. Paragraph 19(9) therefore did not bar approval.
6. The court also accepted that the section 55 application made before the appointed day remained governed by the old law under article 12 of the Adoption and Children Act 2002 (Commencement No. 10 Transitional and Savings Provisions) Order 2005. That conclusion provided an alternative route to the same result, although the court did not finally determine whether section 56 and the old form of paragraph 19 were preserved for transitional purposes.