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ADOPTION: Re F (Placement Order) [2008] EWCA Civ 439

Date:1 MAY 2008

(Court of Appeal; Thorpe, Wall and Wilson LJJ; 1 May 2008)

The father, who had not been involved in the care proceedings, sought leave to apply for revocation of the placement order under Adoption and Children Act 2002, s 24(2). However, although the local authority adoption agency was aware of the father's application, it failed to respond to a letter from the father's solicitors, and chose to place the child with the prospective adopters without delay. At the hearing of the father's application for leave, the agency argued that, under s 24(2)(b), leave to apply could not be granted after the child had already been placed for adoption. The father appealed, arguing that s 24(5), which prohibited the placement of a child if there was an unresolved application for revocation of a placement order, applied to an application for leave to make an application for revocation.

By a majority, the court rejected the father's appeal: s 25(5) referred to an application for revocation of a placement order, not to an application for leave to apply for revocation of a placement order. However, the court was extremely critical of the actions of the local authority adoption agency; the agency's conduct had been disgraceful and demonstrated a profound if not total misunderstanding of the agency's functions under the 2002 Act. The agency had set out deliberately to prevent the father from being heard, which was an abuse of power and wholly unacceptable. The social workers had not been properly trained, had been inadequately managed and, even worse, did not appear to see the need for good management; the arrogance of the agency's behaviour was the most shocking aspect. In future, a parent in such a position should invite the adoption agency to give an undertaking not to place the child pending a hearing of the leave application, and should put the agency on notice that if such an undertaking was not forthcoming, an application without notice would be made to the county court for an order in those terms. Following best practice, the agency in this case ought to have replied promptly, explaining that its plans were about to be implemented; the agency could itself have applied to the court on short notice for leave to place the child. Local authorities and adoption agencies must understand that although they had to promote the best interests of the child, the ultimate arbiter of what was in the child's best interests was the court, which had been given the responsibility for making such decisions by Parliament; the courts were not a rubber stamp for local authority or agency actions. Any local authority falling below the standards of good practice and indulging in the shoddy behaviour demonstrated by East Sussex County Council in this case could expect not only severe judicial displeasure and applications for judicial review, but also orders for costs.