Ruth Cabeza represents successful local authority:  s35 Adoption and Children Act notice of returning child subject to placement order

October 21, 2020

Ruth Cabeza acted for the successful local authority in an application by the prospective adopters of 2 sisters: G aged 9 and M aged 7. The prospective adopters were seeking a mandatory injunction under sections 6 and 7 of the Human Rights Act 1998 that the local authority return M to their physical care.

Key issues in the case

  • As a matter of law, what is required to give effective ‘notice’ within the meaning of Section 35 of the Adoption and Children Act 2002? (The section deals with the voluntary return by a prospective adopter of an adoptive child to the adoption agency).
  • In the circumstances of this case, had the prospective adopters given notice of their wish to return their adoptive children in accordance with that provision?

Background to the case

On 6 March 2019 the Family Court granted a placement order in favour of the local authority. The care plan was for adoption. On 2 September 2019 the children were placed with the prospective adopters, a couple.

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 were 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 having to be called. That 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 have 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 their email on 21 July 2020 did not constitute notice of their wish to return the children and was not notice within the meaning of s.35 Adoption and Children Act. Accordingly the children remained placed for adoption with them, and they continued share parental responsibility under s.25(3) Adoption and Children Act.

They asserted that when the children were placed in foster care on 22 July 2020 it was under 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.

On 7 September, the prospective adopters filed an application for an adoption order with respect to M on the basis that they asserted that she remained placed for adoption with, continued to have her home with them and that the conditions of s.42(2) Adoption and Children Act were thus met.

If that were right, then any notice given to the adopters to return to the children to the local authority under s.35 could not be enforced without leave of the court.

Ruth’s arguments on behalf of the local authority

  • When a child is accommodated with respite foster carers while placed for adoption, they are not accommodated under s.20 of the Children Act 2020. Instead, it is simply that the local authority in carrying out its duty to accommodate a child under s.18(3)Adoption and Children Act.
  • The provisions of s.35 Adoption and Children Act should not be given a gloss and should be read to give effect to the normal meaning of the words used by Parliament.  It was accepted that the word ‘return’ implied and should be interpreted to mean ‘permanent return’, and not a request for support with day-to -day care.  It was suggested that a request for support by way of respite care to enable a carer to continue to look after their adoptive child would be a matter of fact in every case, but linguistic markers such as the identification of a start and end time of temporary respite support would be important to support a finding that the request was for temporary respite rather a notice to return the children.
  • When considering whether as a matter of fact the email of 21 July was a request for respite care or a request to return the children the court should have regard to the history behind the message and the repeated requests to return G, which had not been acceded to, as well as to the reasons given and the  particular wording the adopters had used in the message. Consequently, the message sent could only be read as a clear and unequivocal request to permanently return both children, albeit it was also clear that their preference would have been to only return G had this been permitted.
  • The effect of returning the children on 22 July 2020, brought to an end the adoptive placement.
  • The parental responsibility granted to the prospective adopters ‘while’ the children were placed with them, also came to an end when the children were returned.
  • The suggestion that the children were ever accommodated under s.20 was misconceived since the children were accommodated at all times following the making of the placement order in accordance with section 18(3) ACA.

Judgment

The court accepted these arguments on the law and the facts and found 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.

It rejected the proposition that the children had ever, or could ever have been accommodated under s.20 of the Children Act while a placement order was in force.  Therefore, it followed that at the date of their application for adoption of M, the prospective adopters did not have standing under s.42(2).

It dismissed the application for an injunction under the Human Rights Act 1998.