Ruth Cabeza represents local authority in Court of Appeal case on s35(1) Adoption and Children Act notice

November 27, 2020

Ruth Cabeza acted for the local authority in an appeal by prospective adopters against the dismissal of their application for injunctive relief under the Human Rights Act 1998 and the striking out of their adoption proceedings concerning a girl, M, aged 7.

This was the first reported decision on the meaning of section 35(1) of the Adoption and Children Act 2002. The Court of Appeal dealt with:

  • the approach a judge should take when determining whether a written communication is a notice pursuant to s.35(1) if there is dispute between parties as to the legal effect of the written communication.
  • the extent to which an adoptive parent who has agreed to the adoptive child being cared for in a foster placement before notice under s.35 is given (by them or the local authority), can compel a local authority to return the child to their care
  • the extent to which a local authority that has accommodated a child with foster carers with the agreement of an adoptive parent who has not given notice under s.35(1) is entitled to give notice under s.35(2) while the child remains in foster care, and the effect of such notice if given
  • whether a local authority’s refusal to return to an adoptive parent a child who has been accommodated in foster care by agreement can be construed as tacit s.35(2) notice with the effect of bringing the adoptive placement to an end.

The Court of Appeal’s findings

  • The judge at first instance had directed himself correctly on the approach to be taken when deciding whether an email was notice under s.35(1).
  • Having identified the correct test to apply, he had erred in its application with the result that his finding that an email sent on 21 July 2020 was notice under s.35(1) was wrong. Thus the adoptive placement continued to subsist unless valid notice under s.35(2) had been given.
  • A local authority wishing to give notice under s.35(2) must do so expressly. A simple refusal to return a child to a parent could not be construed as tacit notice under s.35(2).
  • The decision to strike out the adoption application on the basis that the adopters did not meet the requirements of s.42 of the Adoption and Children Act 2002 -the appeal against that order was upheld.
  • Having requested that the children be received into foster care, the adopters were not entitled to compel the return of either child since the parental responsibility conferred by s.25(3) was lawfully restricted by the local authority under s.25(4) and the local authority was therefore entitled to continue to accommodate the children in foster care under s.22C of the Children Act 1989 if it was satisfied that immediate return to the adoptive parents was contrary to their welfare. The application under the Human Rights Act 1998 asserting that the children were initially accommodated with foster carers under s.20 of the Children Act 1989 such that when the accommodation was opposed by the adopters the continued retention was unlawful, was therefore misconceived and the appeal against the judge’s decision to dismiss the application for injunctive relief was dismissed.

Background to the case

In March 2019 the Family Court had granted a placement order in favour of the local authority relating to 2 sisters: G, aged 9 and M, aged 7. The care plan was for adoption. In September 2019 the children were placed with the prospective adopters.

The placement was unsettled from the start and deteriorated further when the country went into lockdown in March 2020.  After a series of incidents, the prospective adopters asked for G to be accommodated separately. They were clear that G was repeatedly targeting M and that they could not keep G safe from herself or M safe from G even with a high level of supervision.

The local authority was unwilling to separate the children without further assessment – as they had been placed for adoption as a sibling group. In particular, the local authority was concerned about the impact of permanently separating the siblings and was in the process of instructing a psychologist to assess the children.

On 21 July 2020, G’s state deteriorated and an episode that lasted several hours led to an ambulance being called. The next day the prospective adopters emailed the professionals involved with the children at the local authority and an associated agency.

”… you are leaving M to live with her abuser and face further harm, and G destroying herself and everyone around her. If you cannot protect us all now at the worst of times, I’m afraid that is it. … Please come and get the girls. And wherever you place them I beg you separate M from G. We are no longer able to continue. … “

In accordance with their request, the following day the children were collected by social services and placed into foster care in separate homes. The children continued to have contact with one another and to have direct contact with the prospective adopters. The prospective adopters continued to be involved in meetings where decisions were made about the children.

On 14 August (and multiple times since) the prospective adopters asked the local authority that M be returned to their physical care. The local authority did not agree to do so as the sibling assessments were being conducted and it did not want to change their placements until it was clear what would be in the best interests of the children long-term.

Legal arguments

The prospective adopters argued that the children were placed in foster care on 22 July 2020 according to s.20 of the Children Act 1989. They claimed that when they opposed M remaining accommodated under s.20, the local authority was obliged to return M to their care.  They asserted that the refusal to return M was unlawful on that basis.

The local authority asserted that when a child is subject to a placement order, s.18(3) of the Adoption and Children Act 2002 confirms that they are accommodated by the local authority.  This accommodation is provide under s.22C of the Children Act 1989.  During the course of the arguments, the adopters accepted this position and did not pursue their appeal on that ground.

The prospective adopters argued that when reaching his decision that the email of the 21 July 2020 was notice under s.35(1) the judge had failed to give adequate or any consideration of the actions and communications of the parties before and after that email, and that in a wider context his finding was perverse.

The local authority sought to persuade the court that the judgment demonstrated that the judge had carefully considered all of the evidence and that his determination on the factual matrix was coherent and consistent with the evidence, reminding the court that the test for upholding an appeal on the facts was not whether the Appeal Court agreed with the judge’s decision, but rather whether the decision of the judge below wrong, in that it was a decision that was unsustainable on any reasonable analysis of the facts.

The local authority did not assert that it had given express notice under s.35(2). Its case in the court below and in the Court of Appeal was that it had acted (and was entitled to do so) on the understanding that notice had been given under s.35(1) and therefore notice under s.35(2) was not required.  It did not seek to uphold the determination of the judge below, that as a matter of law a decision of a local authority to refuse to return a child accommodated in foster care to their adoptive parent was tacit and effective notice under s.35(2).

The local authority accepted that if as a matter of fact neither the adoptive parents or the local authority had given notice under s.35 of the Adoption and Children Act 2002, the adoptive placement would continue to subsist, and having regard to the wide interpretation of the meaning ‘home’ given by the courts when this term has fallen for construction within both adoption and surrogacy cases, it did not seek to argue that the adopters would lack locus under s.42(2) of the Adoption and Children Act 2002 when the prospective adopters filed an application for an adoption order with respect to M.


The Court of Appeal rejected the previous judge’s findings that the email of 21 July constituted notice under section 35 of the Adoption and Children Act, and that when the children were collected on the 22 July 2020 the adoptive placement came to an end.

However, the court found that the local authority’s refusal to return M following the request on 14 August was lawful because it amounted to a determination restricting the prospective adopters’ parental responsibility under section 25(4) of the Adoption and Children Act 2002.

Read the judgment in Prospective Adopters v Sheffield City Council [2020] EWCA Civ 1591