(Court of Appeal; Ward, Moore-Bick and Wilson LJJ; 21 December 2007)
The foster mother sought leave to apply for an adoption order in relation to the 9 month old child, who had been placed in the foster mother's care at 6 days old. The judge refused leave, placing great emphasis on the magistrates' approval of the final care plan, notwithstanding that the guardian supported the foster mother's application.
In what might be the first decision referable to grant of leave to apply under Adoption and Children Act 2002, s 42(6), the court held that the legal principles relevant to the exercise of the discretion whether to grant leave pursuant to each of the s 42 subsections were identical, so that the principles identified in Re M and L; Warwickshire v M  EWCA Civ 1084 as relevant to the grant of leave to apply for revocation of a placement order under s 42(2) could be applied. The welfare of the child was therefore a relevant, but not paramount consideration; the application's prospect of success was also a relevant consideration. The judge had been wrong to describe the magistrates as having reached a decision that the child's placement should not be with the foster mother. A care plan served to explain how a local authority would exercise the powers invested in it by a care order, but the proper forum for consideration of the identity of the optimum adopter or adopters was not the court making the care and placement orders; that issue was best ventilated in an application for an adoption order, such as the foster mother sought to make.