DL & Anor v London Borough of Newham (Rev 1)

A local authority may decide whether a child placed for adoption should remain with prospective adopters until an adoption application is made. Section 35(2) of the Adoption and Children Act 2002 is not incompatible with Articles 6 or 8 merely because the authority may act unlawfully or unfairly. Judicial review and proceedings under sections 6 and 7 of the Human Rights Act 1998 can provide effective relief, including an interim stay of a section 35(2) notice. Procedural fairness ordinarily requires the reasons for removal to be raised with prospective adopters and their views obtained. Where urgent removal is required, an emergency protection order or interim care order should normally be sought. A decision-maker must consider material changes in circumstances, including a move which may have removed the risk relied upon.

The claimants were approved prospective adopters with whom K had lived for about 17 months under a placement order. The defendant local authority served notice under section 35(2) of the Adoption and Children Act 2002, requiring K’s return, after concerns about his welfare and information reported by an independent social worker. K was returned, the match was revoked, and the authority refused to return him.

The claimants sought judicial review, arguing that section 35(2) was incompatible with Articles 6 and 8 and that the decisions breached Convention and common-law procedural rights. The central issues were the statutory allocation of decision-making power, the availability of effective judicial remedies, and whether the authority had acted fairly and considered relevant circumstances.

1. Challenge to statutory compatibility. The claimants’ arguments under Articles 6 and 8 and section 3 of the Human Rights Act 1998 failed. The adoption agency was a public authority bound to apply the welfare principle in section 1 of the Adoption and Children Act 2002 and to comply with Convention rights. A possibility of unlawful action by the authority did not make the statutory scheme incompatible.
2. Judicial control and factual issues. Following Re S; Re W [2002] UKHL 10 and subsequent authority, the court decides whether Convention rights have been breached and may resolve relevant factual disputes where appropriate. The court could also grant effective relief for other civil rights engaged by the placement. Alternatively, the intensity of a Daly review would satisfy Article 6 in this context.
3. Interim relief. The court could stay the operation of a section 35(2) notice, including the obligation to return the child, so that effective final relief remained available. Urgent or without-notice removal should ordinarily be pursued through an emergency protection order or interim care order.
4. Procedural fairness. The authority acted in breach of Article 8’s procedural requirements and the common-law duty of fairness. It had not given the claimants a full and informed opportunity to address the allegations prompting removal, the other reasons relied upon, or the request for K’s return. The circumstances required a separate reconsideration after K’s return.
5. Relevant factors and relief. The authority had failed to consider the significance of the claimants’ move from Xtown to Ytown. The court did not determine whether there had been a substantive Article 8 breach because circumstances had changed and current information was insufficient. The notice, the refusal to return K and the revocation of the match were quashed. The original matching and placement decisions were stayed, and the authority was directed to reconsider whether K should be returned to the claimants under the existing placement order.

First-instance judicial review in the Administrative Court. The judgment does not state any appeal.