| ADOPTION — Arrangements for adoption — Placement order — Test for dispensing with parental consent to placement order — Whether proper exercise of local authority’s duty where dual plan approach for either adoption or fostering — Adoption and Children Act 2002, s 52(1)(b)
SB v A County Council [2008] EWCA Civ 535; [2008] WLR (D) 160
CA: Thorpe, Wall LJJ and Munby J: 20 May 2008
A judge considering dispensing with parental consent to adoption had to focus on the child’s welfare “throughout his life”, to emphasise that adoption, unlike other forms of order, was something with lifelong implications.
The Court of Appeal so held in dismissing an appeal brought by the mother, SB, against the decision of a county court judge on 12 October 2007 to dispense with her consent and make placement orders in respect of two of her children, S and D.
SB was 24 and had five children. Two of the children were freed for adoption in January 2006 and had been adopted by a couple and had no contact with their other siblings. The youngest child was born in September 2006 and had remained in his mother’s care, under a supervision order in favour of the local authority. S and D were seriously damaged children. In January 2007 the local authority’s adoption and permanence panel (APP) recommended that there should be a dual plan of adoption and fostering for S. The same psychiatrist advised both that contact between D and her parents should cease, and that placement orders under the 2002 Act should be sought. Accordingly, the local authority applied for placement orders in relation to both children and it was those applications which fell to be decided by the judge in October 2007.
WALL LJ, delivering the judgment of the court, said that the case raised in a clear and straightforward way two points of considerable importance for the future development of the law and practice of adoption. The first was a pure point of law: what was the proper test for dispensing with parental agreement to the making of a placement order under s 52(1)(b) of the Adoption and Children Act 2002? The second was a mixed question of policy and practice: was it a proper exercise of the power under s 52(1)(b) to dispense with parental consent to the making of a placement order, when the adoption agency in question proposed to conduct a search for both fostering and adoptive placements (a dual approach). The answer to the question what was meant by welfare in s 52(1)(b) was to be found in s 1 of the 2002 Act. S 1(1) plainly applied when the court was deciding whether or not to dispense with parental consent to a placement order. Such a decision was manifestly “a decision relating to the adoption of a child”. In those circumstances, s 1(2) of the 2002 Act required the court to treat “the child’s welfare throughout his life” as its “paramount consideration”. S 52(1)(b) was concerned with adoption and what had to be shown was that the child’s welfare required adoption as opposed to something short of adoption. A child’s circumstances might require statutory intervention, but that was not to say that the same circumstances would necessarily require the child to be adopted. That did not mean, however, that there was some enhanced welfare test to be applied in cases of adoption. The difference was simply between s 1 of the Children Act 1989 and s 1 of the 2002 Act. S 1(2) of the 2002 Act, in contrast to s 1(1) of the 1989 Act, required a judge considering dispensing with parental consent in accordance with s 52(1)(b) to focus on the child’s welfare “throughout his life”. That emphasised that adoption, unlike other forms of order made under the 1989 Act, was something with lifelong implications. The judge in the instant case did exactly what was required of him when dispensing with SB’s consent. His directions to himself were immaculate. Their Lordships had found the policy of the local authority to have a dual approach more difficult. However, they had reached the conclusion that a combination of the tests in s 1(1) and 1(6) of the 2002 Act in particular justified the local authority’s pragmatic approach. A local authority could be “satisfied that the child ought to be placed for adoption” within the meaning of s 22(1)(d) of the 2002 Act even though it recognised the reality that a search for adoptive parents might be unsuccessful and that, if it was, the alternative plan would have to be for long-term fostering.
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