NS-H v Kingston Upon Hull City Council & Anor

Leave to apply to revoke a placement order may be granted despite there being no present real prospect that the child will return to the parent. The court must consider all relevant circumstances, particularly the applicant’s prospect of obtaining revocation and the child’s interests.

A placement order requires more than a long-term aspiration that the child should eventually be adopted. Broadly, the child must presently be suitable and ready for adoption. A material suspension of the adoption plan may therefore justify revocation proceedings, especially where judicial scrutiny and fresh expert evidence are needed to identify the programme best serving the child’s welfare.

A mother appealed against the refusal of leave under section 24(2)(a) of the Adoption and Children Act 2002 to apply to revoke a placement order concerning her four-year-old son. The child had continued to suffer severe failure to thrive in foster care. The local authority had suspended direct pursuit of adoption until his condition improved and had changed its plans for his placement.

The judge found the necessary change of circumstances but refused leave because rehabilitation to the parents was unrealistic, the authority was acting reasonably and revocation had no real prospect of success. The central issue was whether leave could nevertheless be granted because the child was not presently ready for adoption and judicial scrutiny of his future programme was urgently required.

1. Appeal allowed unanimously. The judge had erred in refusing leave to apply for revocation of the placement order. The mother was granted leave, and an urgent directions hearing was arranged following her undertaking to issue the application forthwith.
2. Under section 24(3) of the Adoption and Children Act 2002, a change in circumstances is the threshold for the discretionary grant of leave. That threshold was satisfied. The child’s weight had declined, serious professional disagreement had emerged, direct placement for adoption was no longer being pursued and the treating paediatrician had suspended his monitoring.
3. The judge asked the wrong question by concentrating on whether the local authority was acting as a reasonable parent. The correct question was whether leave should be granted in all the circumstances. The court had to weigh the mother’s prospect of obtaining revocation and the child’s interests. A realistic prospect of rehabilitation to the parent was not essential.
4. The mother had a real prospect of obtaining revocation. A placement order cannot rest merely on adoption as a long-term aim. Broadly, the child must presently be suitable and ready for adoption, although difficulty or delay in finding an adoptive placement does not itself preclude an order. Here adoption had been shelved for an unknown period, and even the interim plan for foster placement with a view to adoption had been abandoned. Re T (children: placement order) [2008] EWCA Civ 542 was applied.
5. Leave also served the child’s interests. His grave and deteriorating condition, professional conflict, the cessation of medical monitoring and the authority’s unsuccessful pursuit of an over-ambitious placement plan required the case to return to court. Revocation proceedings were an appropriate vehicle for examining every available option with the benefit of any fresh expert appraisals directed by the court.
6. The court must refuse leave where revocation proceedings are opportunistically invoked for improper collateral purposes. This application was not of that character because there was a genuine question about the continuing appropriateness of the placement order and an urgent need to identify a programme capable of arresting the child’s decline.
7. In a non-dispositive postscript, Wilson LJ expressed the preliminary view that a care order remains in existence, although its effect is suspended, while a placement order is in force. The child therefore remains subject to the care order and cannot be made a ward of court. The wider availability of the inherent jurisdiction, outside wardship, was left for a case in which it required decision.

1. Court of Appeal (Civil Division): The mother’s appeal was allowed unanimously in respect of leave to apply to revoke the placement order. Leave was granted. The separate challenge concerning wardship and the inherent jurisdiction was not pursued to determination.
2. High Court, Family Division: His Honour Judge Jack, sitting as a High Court judge, found a change in circumstances but refused leave to seek revocation. He also refused the mother’s application for wardship or other relief under the inherent jurisdiction. No neutral citation is stated.