Prospective Adopters v Sheffield City Council

A notice under section 35 of the Adoption and Children Act 2002 must be in writing, but it has no prescribed form or substance. The giver must intend permanently to end the placement and return the child to the adoption agency. Whether a particular communication has that effect is a question of fact. In assessing communications sent during a crisis, the court should proceed cautiously and should not infer far-reaching consequences without clear intention. Where a child has already been returned to the local authority for respite care, the authority may decide to terminate the placement without first returning the child and serving a further notice. That decision may be challenged by judicial review or a freestanding human-rights claim. The child remains accommodated under the authority’s overarching parental responsibility, rather than being unlawfully retained.

The applicants were prospective adopters of two sisters placed with them under a care plan for adoption. Following a serious deterioration in the children’s relationship and conduct, the applicants asked the local authority to remove both children. The children were placed in separate foster homes.

The applicants later sought the return of one child, arguing that their earlier email had consented only to temporary respite care and that the local authority’s continued accommodation became unlawful when consent was withdrawn. They also applied for an adoption order. The central issues were whether the email was a notice under section 35 of the Adoption and Children Act 2002, and what legal consequences followed if it was not.

1. Primary decision. The application under sections 6 and 7 of the Human Rights Act 1998 was dismissed. The email of 21 July 2020 was a valid notice under section 35(1) of the Adoption and Children Act 2002 and permanently ended the placement of both children. The applicants therefore lacked standing to apply for an adoption order because the child had not lived with them for the required ten weeks under section 42. The adoption application was to be struck out.
2. Section 35 notice. The legislation imposes no requirements of form or substance beyond writing. The notice giver need not understand the legal detail, but must intend the consequence of permanent return to the local authority. A request for temporary respite care is insufficient. Whether a communication satisfies that legal test is a question of fact.
3. The email’s language, context and surrounding conduct showed permanence. The applicants had reached the end of their ability to care for both children, had rejected a temporary solution, and expressly asked the authority to collect the children. Later contact and involvement in decision-making did not undo the notice.
4. Alternative analysis. If the child is already with the local authority for respite care, the authority may terminate the placement by decision without first returning the child and giving a further seven-day notice. The decision is amenable to judicial review or a freestanding human-rights application. Interim relief may be sought, and emergency protection or interim care orders may be required where immediate removal is necessary for safety.
5. The local authority’s retention of the child after the applicants’ request for return was not unlawful. The applicants had lost parental responsibility when the authority tacitly decided to terminate the placement, and the later adoption application did not alter that position. In future, the termination decision should preferably be recorded in an explicit, fully reasoned letter.