W, R (on the application of) v A Local Authority

For the purposes of Adoption and Children Act 2002, a child is placed for adoption when the necessary legal approvals are complete and the introductory process with the prospective adopters begins. Permanent residence is not required. The question may depend on the facts, but the court should avoid an uncertain or artificial date of placement.

A decision to proceed with placement is reviewed on ordinary public law grounds. It is unlawful only if, for example, the authority abuses its power or acts irrationally. In assessing any procedural error, the court may consider the conduct of the parent or advisers, the child’s welfare, the stage reached in the placement process and any available alternative remedy.

The claimant sought judicial review of a local authority’s decision to place her daughter, J, for adoption. A placement order had been made on 15 September 2008. Following approval of prospective adopters and the matching decision, introductory meetings began on 17 August 2009. J moved permanently to the prospective adopters on 24 August.

The claimant’s solicitors faxed the authority on 21 August, stating an intention to seek leave to revoke the placement order. The fax was not seen by the relevant officers until after J had moved. The issues were when J had been placed for adoption, whether the decision to allow her move was lawful, and whether any error should lead to quashing.

1. Placement date. The claim was dismissed. A child is not automatically placed for adoption merely when the Matching Panel reaches its decision, because the agency decision-maker must approve the recommendation. Equally, placement does not await permanent physical residence with the prospective adopters.
2. Placement becomes legally fixed and certain when all relevant approvals have been completed. In this case that occurred on 17 August 2009. The introductory meetings beginning that day were the first step in the relationship between J and the prospective adopters after placement, rather than a preliminary stage before placement. The claimant’s fax of 21 August was therefore too late under section 24(2) of the Adoption and Children Act 2002.
3. Alternative public law analysis. Even if placement had occurred on 24 August, the authority had not abused its power or acted irrationally. The circumstances differed materially from Re F [2008] EWCA Civ 439, where the authority proceeded in knowledge of an extant revocation application. Here the authority was unaware of the fax, had kept the claimant informed, and the fax had not been marked urgent, had not sought an undertaking, and had been sent to an absent lawyer.
4. The delayed written notification did not breach regulation 33 of the Adoption Agencies Regulations 2005. The requirement to notify as soon as possible meant as soon as possible in all the circumstances, not within a fixed period. The authority’s policy of hand-delivering a sensitive letter through the social worker was appropriate, and no material prejudice was shown.
5. Even assuming an error of law, the court would not have exercised its discretion to quash the decision. J’s welfare, the substantially completed placement process, the disruption caused by delay, the claimant’s conduct and the availability of a later challenge under section 47(7) of the 2002 Act all favoured refusing relief.

not stated in the judgment.