ADOPTION — Arrangements for adoption — Placement order — Application for revocation of placement order — Judge finding child to be with potential adopters — Whether correct approach — Adoption and Children Act 2002, s 18(5)

In re S (A Child); [2008] WLR (D) 308

CA: Thorpe and Keene LJJ and Hedley J: 7 October 2008

When considering whether to revoke a placement order placing a child for adoption with prospective adopters, it was wrong to focus on whether the carers were “potential” adopters.

The Court of Appeal so held when allowing an appeal by the applicant, the mother of a seven-year old boy, S, from an order of Judge Wade, sitting at Swindon County Court, by which he had dismissed her application for leave under s 24(2)(a) of the 2002 Act to revoke a placement order regarding S.

THORPE LJ said that the judge had found that the child was with a foster carer with a view to adoption. He had found that although the carer had not committed to adopting the child, she had not precluded it which meant that she was a potential adopter, and that meant that the child had been placed for adoption. That pragmatic approach was a reckless one. The judge had focussed on the wrong adjective. S 18(5) of the Adoption and Children Act 2002 required him to focus on a “prospective” adopter while he had chosen to focus on a “potential” adopter. Those two adjectives had distinctly different dictionary meanings. There were three necessary stages to the statutory placement of a child. First, the question was to be asked whether adoption was in the best interests of the child. If it was, the obligation was placed on the local authority to apply for a placement order. Once a placement order was granted, the respondent was to consider whether there were specific people who would be appropriate adopters. If the child matched to those appropriate adopters, he would then be placed with them. A child was not deemed to have been placed for adoption for the purposes of s 24 of the 2002 Act until all stages were accomplished. In this case only the first stage had been accomplished. The judge had reached the wrong conclusion on the law.

KEENE LJJ and HEDLEY J agreed.

Appearances: Stuart Leach (Bevirs Solicitors, Swindon) for the mother; Hayley Griffiths (Director of Law and Democratic Services, Swindon Borough Council) for the local authority.

Reported by: Ben Urdang, barrister