| ADOPTION — Arrangements for adoption — Placement order — Application for leave to seek revocation of order — No prospect of child returning to parental home in near future — Correct test to be applied when deciding whether to grant leave — Whether correct test that local authority required to act as reasonable parent — Adoption and Children Act 2002, s 24
S-H v Kingston upon Hull City Council and another [2008] EWCA Civ 493; [2008] WLR (D) 154
CA: Pill, Wilson LJJ and Charles J: 14 May 2008
When deciding whether to grant leave to a parent to apply for revocation of an order placing a child for adoption, the court should ask itself the question whether, in all the circumstances, including the parent’s prospect of success in securing revocation and the child’s interests, leave should be given.
The Court of Appeal so held when allowing an appeal by the mother, S-H, from the decision of Judge Jack, sitting as a High Court judge of the Family Division in the Hull district registry on 5 March 2008 when he refused her leave to apply to revoke a placement order made by the judge on 3 October 2007 in relation to her child T, now aged four years. The father, the second respondent, supported the mother’s application.
WILSON LJ said that it would occasionally be proper for the court to grant a parent leave to apply to revoke a placement order under s 24(2)(a) of the Adoption and Children Act 2002, notwithstanding the absence at the time of any real prospect that a court would find it to be in the child’s best interests to return to live with his parents. The judge below had erred in asking himself whether the local authority was failing to act as a reasonable parent. Moreover, it was hard to see how the judge could have “found” that the local authority’s current approach to the child’s future care was in his best interests, since he was conducting only a preliminary paper exercise into the appropriateness of further proceedings. Had the judge asked himself the correct question — whether leave should be given looking at all the circumstances including the mother’s prospect of success in securing revocation and the child’s interests — then he could have only reached one answer, namely that leave should be given. In the instant case, the mother had a real prospect of success in securing revocation of the placement order since circumstances had changed since the issuing of the order. The placement for adoption in relation to the child had been shelved and the adoption plan was no longer being pursued. Even the plan for a foster placement with a view to adoption had been abandoned. In those circumstances, the mother could be able to persuade the court that it was not currently appropriate for the placement order to remain in being. The necessary foundation for a placement order was that, broadly speaking, the child was presently in a condition and was ready to be adopted, even though in some cases the court had to countenance the possibility of substantial difficulty and thus delay in finding a suitable adoptive placement. Moreover, it was in the child’s interests that leave should be given since the hearing would provide an opportunity for the apparent change in his current suitability for adoption to be examined by the court. An application for revocation would provide an entirely appropriate vehicle in which the court could make a full inquiry into all the options available. The judge below had, accordingly, erred in not granting leave and the appeal would be allowed, with the result that leave to apply for revocation of the placement order would be given to the mother.
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Appearances: Judith Parker QC and Sally Collins (Williamsons, Hull) for the mother; Stephen Cobb QC and Taryn Lee (Solicitor, Hull City Council) for the local authority; Geoffrey Hunter (Stamps Family Solicitors, Hull) for the second respondent, father.
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