June 15
When the child, R, was born, the local authority applied for care orders and were granted an interim care order under section 31 of the Children Act 1989. On R’s discharge from hospital he was placed with foster carers, with whom he remained. The mother failed to engage with subsequent plans for assessment and the matter was listed for a final hearing. The local authority decided that R should be placed for adoption and applied for a placement order under section 21 of the Adoption and Children Act 2002. The foster carers indicated that they would like to be considered as adopters. However, the local authority identified a cousin of the mother, G, and her partner as possible adopters and the mother indicated that she would not oppose R being placed with G if she was unable to resume caring for him herself. Shortly before a hearing in the care proceedings, the foster parents purported to make an application for adoption order under section 42 of the Adoption and Children Act 2002. At the hearing, the local authority contended that the identification of suitable prospective adopters for R was a matter for the local authority and that the court should therefore list the proceedings for a final hearing of the applications for a care and placement order as soon as possible. The judge determined that further evidence in relation to both placement options for R was required before the court could determine the proceedings and that both options should be assessed in parallel to each other. She ordered that an assessment of the suitability of the foster carers as prospective adopters was to progress, that the foster parents were to be joined as parties to the proceedings to allow them to put before the court their case to be assessed as a carer for R as there was no one else to do this, and that G and her partner were entitled to apply to also be joined as parties. The local authority appealed, contending that joinder of the foster carers to the care proceedings was wrong in law and principle.
On the appeal—
Held, appeal allowed. It was clear on the authorities that, save in exceptional circumstances, foster carers and prospective adopters should not be joined as parties to care proceedings. The judge in the care proceedings was concerned at most with consideration of adoption in principle, not with evaluating the merits of the particular proposed adopters. The fact that it might be necessary for the court to consider the credentials of proposed adopters when deciding whether to approve a care plan for adoption did not mean that the care proceedings were the appropriate forum for resolving a dispute as to the merits of a a proposed adoption. Since, in the present case, no such exceptional circumstances had been shown to exist, the decision of the judge to joint the foster carer’s to the care proceedings was wrong in principle and in law. However, the fact that the judge had been wrong to join the foster care’s at this stage, did not mean that their proposed application to adopt, which could not be said to be an impermissible attempt to circumvent the statutory scheme, was irrelevant to the court’s decision whether to make care and placement orders. A court evaluating the local authority plan in order to decide what order to make at the conclusion of care proceedings had to have regard, amongst other things, to the likely effect on the child of any change of circumstances (section 1(3)(c) of the Children Act 1989). Where a child now aged 15 months had been placed with foster carers since he was three days’ old, any change of circumstances would inevitably be very significant. Furthermore, when his carers were offering to look after him permanently and had given notice and intention to apply for an adoption order, it was incumbent on the court deciding what order to make at the conclusion of care proceedings to consider how capable the foster carers were of meeting the child’s needs (section 1(3)(f) of the 1989 Act). Accordingly, the order joining the foster carers to the care proceedings was set aside (paras 62–70, 7378, 79).
Deirdre Fottrell QC and Louise MacLynn (instructed by Local Authority Joint Legal Team) for the local authority.
Denise Gilling QC and Lucy Maxwell (instructed by Albin & Co, Reading) for the mother.
Piers Pressdee QC and Joanne Porter (instructed by Griffiths Robertson, Reading) for the child, by his children’s guardian.
The foster carers appeared in person