J (Care Plan for Adoption), Re

A court deciding whether to make a care order on a local authority care plan for adoption is making a decision relating to adoption. It must therefore apply section 1 of the Adoption and Children Act 2002, even if no placement-order application is before it.

The court must evaluate the adoption plan under the enhanced lifelong-welfare checklist and undertake the strict proportionality assessment required where adoption is a realistic option. It must also scrutinise the statutory permanence provisions of the care plan. A final care order made by applying only section 1 of the Children Act 1989, without that analysis, is unlawful and cannot be upheld as safe.

The mother appealed against a final care order for her nine-month-old son. The local authority’s care plan proposed adoption, but its placement-order application had not been filed when the Family Court heard the care proceedings.

The judge made a final care order, endorsed a plan for permanent placement outside the family, and directed a later hearing of the placement-order application. She expressly applied the welfare provisions of the Children Act 1989 rather than those of the Adoption and Children Act 2002, and did not undertake the adoption proportionality evaluation.

The principal issue was whether that order could stand where the care plan was for adoption but no placement-order application was before the court.

1. Appeal allowed. The final care order was set aside and replaced by an interim care order. The applications for a care order and a placement order were remitted for urgent case management and hearing before another judge.

2. Where a care-order application is advanced on a plan for adoption, adoption is within the realistic options. The court is therefore coming to a decision relating to adoption. Section 1 of the Adoption and Children Act 2002, not section 1 of the Children Act 1989, governs the welfare evaluation, even if no placement-order application has been issued. The judge had expressly applied the wrong statutory regime and had excluded lifelong welfare from her evaluation.

3. The court must apply the enhanced adoption checklist, including the effect throughout life of leaving the original family and the child’s relationships with relatives. It must carry out the strict proportionality exercise for adoption, evaluating each realistic option sufficiently and comparing the options side by side. The judge had expressly declined to decide whether nothing else would do.

4. Under sections 31(3A) and 31(3B) of the Children Act 1989, the court had to scrutinise the permanence provisions of the actual plan, which included adoption, the child’s current and future needs, and how adoption would meet them. Calling the plan one of general permanence could not avoid that duty. The absence of the required statutory and proportionality analysis made the final order unlawful, regardless of whether the parents had suffered procedural unfairness.

5. The Court of Appeal declined to substitute a North Yorkshire finding. Such findings remain permissible but require caution and were unsuitable given the judge’s mistaken approach and her express decision not to make one. The remaining grounds were not determined; the mother could renew her request for further assessment before the new judge.

• Court of Appeal (Civil Division): Allowed the mother’s appeal, set aside the final care order, substituted an interim care order, and remitted the care-order and placement-order applications for urgent case management before another judge: [2024] EWCA Civ 265.
• Family Court at Luton: HH Judge Kushner made a final care order on 2–3 November 2023, endorsed a care plan for permanent placement outside the family, and directed a later hearing of the unfiled placement-order application.