| ADOPTION — Arrangements for adoption — Placement order — Application for leave to seek revocation of order — Whether applicant parent protected from date of application for filing for leave — Adoption and Children Act 2002, s24(5)
C v East Sussex County Council [2008] EWCA Civ 439; [2008] WLR (D) 136
CA: Thorpe, Wall and Wilson LJJ: 1 May 2008
S 24(5) of the Adoption and Children Act 2002 could not be interpreted to include the application for leave to make the application.
The Court of Appeal so held (Thorpe LJ dissenting) when dismissing an appeal brought by the father, C, against the decision of Judge Coates at Brighton County Court on 30 January 2008 when she refused him leave to revoke a placement order made on 17 August 2008 with respect to his child, J-L, by the adoption agency of East Sussex County Council.
The child was born on 11 June 2006 following her parents’ casual relationship. The local authority issued care proceedings on 22 November 2006 which were not served on the father. He was initially unaware of them until January 2008 when he learned that adoption plans were well advanced. On 11 January he lodged an application for leave to apply to revoke the placement order. Due to staff shortages in the county court the application was not fully processed until 21 January when notices of a hearing on 30 January were sent to the parties. Despite the father’s emerging challenge, on 14 January, the council decision maker ratified the panel’s decision of 9 January and on 15 January the potential adopters met the child for the first time.
S 24(5) of the Adoption and Children Act 2002 provides: “ Where - (a) an application for the revocation of a placement order has been made and has not been disposed of, and (b) the child is not placed for adoption by the authority, the child may not without the court’s leave be placed for adoption under the order”
WALL LJ said that he had read the judgment of Thorpe LJ , which concluded that it was open to the court, in reliance on s 3 of the Human Rights Act 1998, to read into s 24(5) of the 2002 Act words which had the effect of protecting the applicant parent from the date of the filing of the leave application rather than from the date of the filing of the revocation application following the grant of leave. In his Lordship’s judgment such as exercise was impermissible. The words of the section were clear and unambiguous and capable of only one meaning. “An application for the revocation of a placement order” meant just that. What had happened in this case was that there had been a travesty of good practice. The answer was not to allow the appeal but for the Court of Appeal to ensure, in so far as it could, that the conduct of this agency was not repeated elsewhere. That conduct demonstrated a profound, if not total, misunderstanding of its functions under the 2002 Act. Social workers had to remember that, charged as they were under the Children Act 1989 and the 2002 Act with promoting the best interests of the children, the ultimate arbiter of what was in the child’s best interests was the court. The agency quite deliberately set out to prevent the father from being heard. The fact that its workers might have genuinely believed that in so doing they were acting in the best interests of the child concerned was at best irrelevant and at worst dangerous. Copies of the their Lordships’ judgments would be sent to the President of the Family Division and to all the designated family judges for onward transmission to the members of the judiciary who heard adoption proceedings and the British Agency for Adoption and Fostering (BAAF) and to every adoption agency in England and Wales. In his Lordship’s judgment, M v Warwickshire County Council [2007] EWCA Civ 1084 accurately stated the law. Once it was accepted that s 24(2) of the 2002 Act was compliant of the Human Rights Act 1998, it was evident that Parliament had drawn a very clear line between an application for leave to apply for the revocation of a placement order, and the substantive application to revoke. It was thus with reluctance that his Lordship dismissed the appeal. The father had done a public service by exposing the local authority’s disgraceful conduct to the public gaze.
THORPE LJ delivered a dissenting judgment; and WILSON LJ delivered a judgment concurring with WALL LJ.
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