22 December 2017

November 2017 - Public Law

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Local Authority application for an adoption order in circumstances where the mother consented to the adoption but there were doubts as to her capacity to do so

S (Child as Parent – Adoption – Consent) [2017] EWHC 2729 (Fam)


This case concerned a child (‘C’) who was placed with foster-to-adopt carers directly from hospital with the mother’s (‘M’) consent under section 20 CA 1989.

M was herself a child being under 16 years of age and suffered from developmental delay and learning disabilities. M wanted nothing to do with C. She did not name C, did not wish to know the baby’s gender and did not see C after the birth.

The central issue was whether M had capacity to consent to an adoption order.

The associated issues were: by what test does the court assess generally the competence of a child as a decision-maker? Cobb J found that the Gillick test should be used to determine the competence of a child to make decisions with some relevant concepts borrowed from the MCA 2005. This test is set out at paragraphs 14-19 and at 62.

Can a child parent give consent to accommodation of their child under section 20, even if assessed to lack competence in other domains? There is no doubt that in practice that positive and informed consent for accommodation of a child under section 20 should be obtained. Cobb J found that M was able to consent to the accommodation of C but that did not mean she was able to consent to C’s adoption as capacity is decision specific.

What is the test for establishing the competence of a child to consent to the placement and/or adoption of their baby? The parent needs to demonstrate a sufficient understanding of the salient facts around adoption and should not need to be concerned with the peripheral details. However, it will be necessary for a parent to demonstrate a full understanding of the essential implications of adoption.

Should steps be taken to help the child parent to reach a competent decision? A court must be satisfied that all practicable steps have been taken to help the decision-maker make the decision. In this case it would be reasonable to give M age-appropriate information in an age-appropriate way which would enhance M’s right to exercise autonomous decision-making.

In what factual circumstances is the section 31 ‘threshold’ likely to be met in relation to a relinquished baby so as to found jurisdiction for the making of a placement order? Whether threshold is met will depend on the facts of the case. In this case M informed and co-operated with professionals from the moment she knew she was pregnant, made reasonable plans for C and attended medical appointments. Cobb J did not rule on this issue as the hearing was not set up to hear factual evidence but his provisional view was that the threshold would not be established in this case.

Where a placement order is refused and there is no valid consent to adoption how does the court proceed towards adoption for the baby? Cobb J set out that the mechanism to ensure C’s adoption would be via sections 42 and 44 ACA 2002.

An assessment was provided by a clinical psychologist which provided a general background about M’s functioning but Cobb J found it to be of minimal assistance in relation to the specific issue of whether M could consent to adoption. Cobb J required an urgent specific assessment to be carried out about M’s capacity to consent to adoption.

Another hearing on this matter would be listed after receiving this assessment.??


Hayden J considers revocation of placement order application in circumstances where an SGO could be made

?R (A Child – whether to revoke Placement Order) [2017] EWHC 2924 (Fam)


Hayden J considering an application from the Mother (‘M’) of R to revoke a Placement Order made following a 5 day hearing.

M contended that, on the facts, there might be a change of circumstances which might, if properly investigated, establish a clear basis for an application for leave to apply to revoke the Placement Order. This being on the basis that R might remain with his current carer under an SGO and being an option not available and thus not evaluated when the Court approved the LA plan of adoption.

The Judge considered R’s permanence report and was referred to Re SF [2017] EWCA Civ 964: ‘the evidential importance of…the permanence report is not to be underestimated’.

Following the judgment of the 5 day hearing, M had begun to explore with the foster carer whether she might be prepared to care long term and believed she had detected a positive response in relation to an SGO.

The social worker told the court that his preferred outcome was for R to remain with the foster carer under an Adoption Order and that R deserved no less than a ‘forever placement’.

Further that the FC needed time and space to consider whether she could make a lifelong commitment to R.

Moreover, the social worker did not discount the possibility of an SGO but the central question for him was whether it reflected a lifelong commitment, as R required.

The Judge determined that all of the information was already before the Court.

It is well established that the first point which a Court is required to consider is whether there has been a change in circumstances, pursuant to s24(3).

The second stage is to consider whether leave to revoke the Placement Order should be granted and requires a consideration of the prospects of success.

In conclusion, Hayden J found no grounds capable of amounting to a change in circumstances.


Appeal brought by the local authority and supported by the guardian seeks to challenge the overall fairness of a hearing concerning two young children

B (Children) [2017] EWCA Civ 1635


The two children lived with both parents until social work and police intervention, due to inadequacy and the abusive nature of the parenting, led to their removal in September 2016, thereafter they were in foster care.

At the fact finding hearing, both parents made substantial concessions as to the factual allegations. Subsequently findings were made in respect of: domestic violence between them, their abuse of alcohol to the extent they had failed to be available to parent the children, substantial drug use and occasions of physical abuse of the boy.

A foster parent assessment of the paternal grandmother concluded negatively on the basis that she failed to understand and accept the potential for future risk to the children from the parents and queried her ability to work openly and honestly with the LA. The Guardian identified significant concerns about the grandmother’s understanding and acceptance of the parents’ behaviour.

The decision at final hearing was between adoption and placement with the grandmother.

During the LA’s cross examination of grandmother there was robust judicial intervention and was characterised by the Guardian’s Counsel as ‘unnecessarily adversarial’ and that fell on the wrong side of robust case management.

The trial judge concluded his intervention by stating he would not make care or placement orders and indicated that at the most he would make a supervision order.

The LA thereafter changed tact and argued that a full care order should be made. The Judge remained of the view but would allow time for further assessment. The LA sought to appeal.

The LA appealed on the basis of fairness and criticises the judge’s early intervention and early announcement of his conclusion and further that he did so in such a way as to intimidate the LA advocate.

McFarlane LJ remarked that the process engaged in in this case failed properly to engage in an adequate way with the evidence that went to the central issues of future welfare of the child.

Particularly, the failure of those assessing the grandmother to gain any knowledge or understanding of her wider family.

Secondly, an inexplicable failure to take up the fruit of the fact-finding, namely the two pages of detailed admissions made by the parents and go through them with the grandmother.

The Judge accepted the criticism that the trial judge had made up his mind at an early stage and further at no point in his interventions did he raise concern about grandmother not having been taken through the detail or having her response to it.

Concluding, McFarlane LJ stated that the overall process was not acceptable. What was needed was a proper evaluation of what was in the child’s best interests.

Because of the way the case was conducted by the Judge and the preparation of the assessment work, the process was overall not a proper one and the only course is for it to be reheard.