EL, R (On the Application Of) v Essex County Council

A local authority deciding whether to place a child for adoption under a placement order must act fairly. Procedural fairness is fact- and context-sensitive and may require the authority to provide both legal and factual information. A parent must have a fair opportunity to understand the available route of challenge, the urgency of taking it, and when placement is likely to occur.

The duty is not confined to cases involving deliberate concealment, nor is it displaced by the authority’s view that adoption promotes the child’s welfare or that a challenge is unlikely to succeed. A local authority must not create a race between placement and an under-informed parent’s application under the Adoption and Children Act 2002.

The claimant, the mother of two children, challenged Essex County Council’s decision to place her six-year-old daughter for adoption. The Family Court had made care and placement orders, and permission to appeal had been refused. The child was placed with prospective adopters on 5 October 2016, before the claimant’s application for leave to apply to revoke the placement order had been determined.

The claimant relied on Re F (Placement Order), arguing that the local authority had acted procedurally unfairly by failing to explain the route and urgency of challenging the placement plan and by accelerating placement. She also claimed damages for breach of article 6. The central issue was whether the decision to place was lawful and, if not, what relief should follow.

1. Procedural fairness. The claim succeeded. Applying Re F (Placement Order), procedural fairness in this context required the local authority to consider what information should be given to the claimant about both the legal route under section 24 of the Adoption and Children Act 2002 and the factual timing of the placement plan.
2. The duty was not limited to deliberate withholding of factual information or to the particular circumstances in Re F (Placement Order). The question was whether the claimant had been kept in the dark and thereby prevented or hindered from making an application under section 24. The authority’s welfare assessment, and its view that the claimant’s challenge was unlikely to succeed, did not remove the requirement for a fair process.
3. By 29 September 2016 the authority knew that the claimant was attempting to issue an application under section 24. It could have delayed the placement, disclosed the timetable, or made an urgent application to the Family Court. Instead, it advanced the placement date partly to avoid court intervention. That course was procedurally unfair and unlawful.
4. The court rejected the argument that later proceedings under section 47 provided an adequate substitute. The section 24 leave test was materially wider because welfare throughout the child’s life was a factor rather than the paramount consideration. Relief could therefore restore, so far as possible, the opportunity lost through the unlawful conduct.
5. The decision to place was quashed. The court declared that the child had not been lawfully placed for adoption and granted, subject to undertakings and further order, injunctive relief preventing placement without the Family Court’s leave pending disposal of the claimant’s section 24 application. The article 6 claim was stayed with liberty to restore because damages and further procedural questions required more information.

First-instance judicial review in the High Court (Administrative Court). The judgment does not state a subsequent appellate decision.