T (A Child : Early Permanence Placement)

An early permanence placement under Children Act 1989 section 22C(9B)(c) remains a fostering placement. It does not give foster carers a special status in care proceedings or ordinarily justify their joinder to argue that they should adopt the child.

In care proceedings, the court considers adoption in principle, not the comparative merits of particular prospective adopters. Where the local authority does not seek a care plan for adoption, a placement order, or a non-consensual adoption order, the requirement to analyse realistic options does not require the prospective adopters’ participation.

A private-law adoption application by foster carers is generally premature until care proceedings have concluded and adoption has been found necessary. Non-consensual adoption remains a last resort: it requires that nothing else will do, not merely that adoption could offer a better upbringing.

T was placed at birth with approved adopters, Mr and Mrs X, as foster carers in an early permanence placement. After DNA testing established paternity, the paternal grandparents were assessed positively. The local authority changed its plan from adoption to placement with them under a special guardianship order.

Mr and Mrs X sought leave to apply for an adoption order and were joined as parties to the care proceedings. Judge Troy granted both applications so that the court could compare adoption by Mr and Mrs X with placement within T’s birth family.

The father appealed the joinder. The local authority appealed the grant of leave. The central issues were whether early permanence foster carers should participate as parties in care proceedings, and whether their private-law adoption application was premature.

Appeals allowed. The court set aside both the order joining Mr and Mrs X to the care proceedings and the order granting them leave to apply for an adoption order.

1. The established approach is that foster parents and prospective adopters should not ordinarily be joined to care proceedings. Exceptional cases may arise, but this was not one. An early permanence placement under Children Act 1989 section 22C(9B)(c) does not alter that position. The care court is concerned with adoption in principle, not with deciding the identity of the optimum adopters. The children’s guardian must scrutinise the local authority’s plan and can address the foster carers’ suitability if necessary.

2. Turning care proceedings into a contest between prospective adopters and the birth family risks asking which placement is better. That is the wrong inquiry. In a non-consensual adoption, whether public or private law, adoption is a last resort and requires nothing else will do. It is insufficient that a child might have a more beneficial upbringing elsewhere: see In re B [2013] UKSC 33 and Y v United Kingdom (2012) 55 EHRR 33.

3. The obligation to analyse all realistic options, explained in In re B-S [2013] EWCA Civ 1146, applies where the local authority seeks approval of a care plan for adoption, a placement order, or a non-consensual adoption order. It did not justify joining Mr and Mrs X where the local authority sought none of those outcomes.

4. The application for leave under Adoption and Children Act 2002 sections 42(4) and 44(4) was premature. It should generally be considered after care proceedings conclude and only if the court has determined that adoption is required. At this stage, the judge lacked the material needed to assess the application properly. The three-month notice period under sections 44(2) and 44(3) also sits uncomfortably beside the statutory timetable for care proceedings.

5. The care proceedings were to continue without Mr and Mrs X as parties. Setting aside leave did not prevent them from pursuing an adoption application, if appropriate, after the care proceedings concluded.

Finally, the court stated obiter that every early permanence placement requires complete frankness and a robust appraisal of the possibility that the placement will not result in adoption.

• Court of Appeal (Civil Division) Allowed the father’s appeal against joinder and the local authority’s appeal against leave to apply for adoption. It set aside both orders: [2015] EWCA Civ 983.
• Family Court, Leeds On 22 May 2015, Judge Troy granted Mr and Mrs X leave to apply for an adoption order and joined them as parties to T’s care proceedings. The lower-court citation was not stated in the judgment.