Coventry City Council v PGO & Ors

A county court may grant an interim injunction restraining a local authority from removing a child whom it is authorised to place for adoption, including before an adoption application can formally be issued. That jurisdiction must, however, be exercised as a public law remedy. The applicant must first show a real prospect that the proposed exercise of the authority’s statutory powers is irrational, disproportionate, otherwise unlawful, or breaches Article 8 rights.

A late notice of intention to adopt does not itself curtail the local authority’s powers under the Adoption and Children Act 2002. A child is not placed for adoption merely because a match has been approved or introductions have begun. Ordinarily, placement occurs when the child begins to live with the prospective adopters.

Two young children had lived from infancy with short-term foster parents. The local authority held care and placement orders and selected prospective adopters. Following an agreed programme of introductions, the children were due to move to the adopters’ home.

On the previous day, the foster parents applied for adoption orders and for leave to seek revocation of the placement orders. The county court treated the invalid adoption applications as notices of intention to adopt, restrained removal until the foster parents could make valid adoption applications, and adjourned their application for leave to revoke.

The local authority appealed. The central issues were whether the county court had jurisdiction to grant the injunction, the principles governing its exercise, and whether the children had already been placed for adoption before their intended move.

Appeal allowed in part. Lord Wilson, with whom Dame Janet Smith and Lord Neuberger agreed, held that the injunction should be set aside. Permission to appeal the adjournment of the application for leave to revoke the placement orders was granted, but that appeal was dismissed.

1. Service of a notice of intention to adopt by local-authority foster parents did not remove the authority’s power to remove the child. Section 38 of the Adoption and Children Act 2002 expressly preserved that power, and a placement order under section 21 authorised the authority both to place the child and to choose the prospective adopters. The judge had wrongly restrained the exercise of those powers without addressing them.

2. The county court nevertheless had jurisdiction under section 38 of the County Courts Act 1984 to grant an injunction in aid of prospective adoption proceedings. The foster parents’ invalid adoption application was a valid written notice of intention to adopt. Its service, together with the urgency of the issue, was sufficient to support an injunction before a valid adoption application could be issued.

3. The injunction application was a public law challenge to the proposed exercise of statutory power. The first and decisive question was whether there was a real prospect that removal was irrational, disproportionate, otherwise unlawful, or incompatible with Article 8 rights. Only if that threshold were met would matters such as delay, duration, the proposed adopters’ position, the status quo and welfare require consideration. On the facts, the foster parents’ long failure to pursue adoption and their continuing concurrence in removal meant that no such prospect existed.

4. A child is not placed for adoption when the agency approves and ratifies a match, or when introductory meetings begin. In the usual case, placement occurs when the child begins to live with the prospective adopters. Where foster carers are to adopt a child already living with them, it occurs when the agency formally permits continued residence in their new capacity as prospective adopters. The contrary conclusion in R(W) v Brent LBC was overruled.

5. The court upheld the judge’s discretionary decision to adjourn, rather than effectively strike out, the foster parents’ application for leave to revoke the placement orders. Following the adopters’ withdrawal, the foster parents were free to make adoption applications, to be determined expeditiously.

• Court of Appeal (Civil Division): Allowed the local authority’s appeal against the injunction and set it aside: [2011] EWCA Civ 729. It granted permission to challenge the adjournment of the application for leave to revoke the placement orders, but dismissed that appeal.
• Coventry County Court: On 14 March 2011, His Honour Judge Bellamy granted an injunction restraining removal and adjourned the foster parents’ application for leave to apply to revoke the placement orders.