Prospective Adopters v Sheffield City Council

Notice under section 35(1) of the Adoption and Children Act 2002 must be a clear and unequivocal statement that prospective adopters no longer wish to adopt and intend permanently to return the child. Legal knowledge is unnecessary, but ordinary-language withdrawal from the adoption plan is required. A crisis request for temporary or respite accommodation is not enough. If valid notice has not been given, the placement for adoption continues, even if the child is physically with the local authority. The authority may restrict prospective adopters’ parental responsibility under section 25(4), but notice under section 35(2), with its procedural safeguards, cannot be given tacitly.

Two children placed for adoption were moved from the prospective adopters’ care to separate foster placements after serious difficulties arose. The prospective adopters later sought the return of one child and issued an adoption application. Mostyn J dismissed their application under the Human Rights Act 1998 and struck out the adoption application, holding that an email had terminated the placement under section 35(1) of the Adoption and Children Act 2002. He alternatively held that the local authority had tacitly terminated the placement.

The prospective adopters appealed. The central issues were whether their communications amounted to statutory notice, whether the local authority could terminate the placement tacitly, and whether the adoption application required leave.

1. The appeal against the refusal of an immediate return order was no longer pursued and was dismissed. The appeal against striking out the adoption proceedings was allowed.
2. Placement for adoption creates a significant legal status, including parental responsibility for the prospective adopters. Under section 35(1) of the Adoption and Children Act 2002, notice must be a clear and unequivocal statement that the prospective adopters no longer wish to be regarded as such and wish permanently to return the child. They need not understand the statutory framework, but they must understand that they are withdrawing from the adoption plan.
3. The meaning of a purported notice depends on the prospective adopters’ actual intention and the communication’s context. A finding that their true intention was the opposite of what both parties understood at the time requires cogent explanation. Messages sent during a crisis should not be parsed in isolation. Any doubt should be resolved consistently with the importance of the placement and the prospective adopters’ and children’s Article 8 family-life rights.
4. The emails were requests for emergency respite or temporary accommodation and were understood by the local authority as such. The continuing involvement of the prospective adopters, the temporary nature of the foster placements, and the local authority’s continuing adoption plan reinforced that conclusion. The email was therefore not notice under section 35(1).
5. The local authority’s refusal to return the child amounted to a tacit determination under section 25(4) restricting the prospective adopters’ parental responsibility. That determination was lawful and could regulate the immediate position. It did not terminate the placement. Notice under section 35(2) has profound consequences, must be in writing, and cannot be given tacitly. If neither side gives valid notice, the placement continues.
6. The prospective adopters were consequently entitled to issue the adoption application without leave. The application was to be listed for early case management. The court did not determine the application of the ten-week condition in section 42, although the local authority accepted that it was satisfied.

• Court of Appeal (Civil Division): In [2020] EWCA Civ 1591, the appeal against the striking out of the adoption application was allowed. The appeal concerning immediate return was dismissed, and Ground 2(ii) was dismissed.
• High Court (Family Division): In 2020 EWHC 2783 (Fam), Mostyn J dismissed the Human Rights Act application and struck out the adoption application, holding that the prospective adopters had given notice under section 35(1), alternatively that the local authority had tacitly ended the placement.