A (Children), Re

A placement for adoption order cannot be made subject to conditions governing the local authority’s choice of prospective adopters. Once the order is made, that choice belongs to the authority, subject to the court’s limited statutory powers.

Parental consent may be dispensed with only where the child’s welfare requires adoption rather than a lesser measure. That question must be evaluated on the basis that the authority may choose any prospective adopters. Where adoption would serve the child’s welfare only if a bespoke placement could be found, while long-term fostering would otherwise suffice, the statutory requirement is not established. The court may instead leave the child under a care order while adopters are sought and determine a fresh placement application once suitable adopters have been identified.

Care proceedings concerned five brothers. The parents accepted care orders and long-term fostering for the three eldest. The contested issue was whether the two youngest boys should be placed together in long-term foster care or for adoption. Their strong relationships with each other and their older brothers, together with one boy’s behavioural and attachment difficulties, meant that adoption would benefit them only if adopters satisfying seven specific requirements could be found.

Manchester County Court made placement orders under section 21 of the Adoption and Children Act 2002. The orders recorded the required attributes as prerequisites which the local authority must observe. The authority appealed, principally contending that the court lacked jurisdiction to constrain its choice of adopters. The mother cross-appealed, seeking discharge of the placement orders if those constraints were removed.

The central questions were whether a placement order could be subject to such requirements and, if it could not, whether the statutory basis for dispensing with parental consent had been established.

1. The local authority’s appeal was allowed. A placement order under section 21 of the Adoption and Children Act 2002 cannot be made subject to conditions controlling the authority’s choice of prospective adopters. The statutory division of responsibility is the same in this respect as that governing final care orders under the Children Act 1989. The court decides whether to authorise placement for adoption. Thereafter, the authority chooses the prospective adopters, subject only to the court’s limited statutory powers to vary or revoke the placement order, determine contact and consider the eventual adoption application.

2. The legal effect of the county court’s structure depended on its substance, not whether its stipulations were called conditions, requirements, an invitation or a recording. The judgment and order made compliance with the entire list a prerequisite to adoption. They therefore crossed the statutory boundary and impermissibly sought to supervise implementation of the care plan. Recordings 2 and 3 had to be struck out.

3. The mother’s cross-appeal was also allowed. Under section 52(1), parental consent can be dispensed with only where the child’s welfare requires adoption rather than a measure short of adoption. That requirement must be assessed consistently with section 21(1), on the footing that placement may be with any prospective adopters chosen by the authority. The judge had found that long-term fostering would serve the boys’ welfare unless adopters meeting every stipulated attribute could be found. It was therefore impossible to conclude that adoption was required or that nothing else would do. The statutory ground for dispensing with consent was absent, so the court lacked jurisdiction to make the placement orders.

4. The placement orders were set aside, leaving the final care orders in force. The authority could continue searching for adopters under those care orders and apply afresh under section 21 if suitable adopters were identified. The court could then compare the boys’ current welfare requirements with the attributes of those identified adopters.

5. The appeal concerning contact under section 26 became academic when the placement orders were set aside. McFarlane LJ nevertheless considered that the judge had jurisdiction to order continuing inter-sibling contact during the currency of a placement order. An equivalent contact order under section 34 of the Children Act 1989 was required after the placement orders fell away.

Gloster and Laws LJJ agreed with McFarlane LJ.

1. Court of Appeal (Civil Division): In [2013] EWCA Civ 1611, unanimously allowed the local authority’s appeal against the conditions imposed on the placement orders, allowed the mother’s cross-appeal and set aside the placement orders. The final care orders remained in force.

2. Manchester County Court: HHJ Kushner QC made care orders and placement for adoption orders for the two youngest boys. The placement orders were granted on the recorded basis that the local authority would adhere to seven specified requirements when selecting adopters.