The father sought to revoke a freeing order. He said that the social workers had conspired to exclude him from the process. The child was born of a casual relationship, and at first he was unaware of the proceedings. On learning of them he sought to revoke the placement order. Aware that they were doing so on the eve of the hearing of the father’s application for leave to apply to revoke the placement order, East Sussex CC exercised their power to place the child for adoption and thereby defeated his application by virtue of s.24(2) of the Act of 2002.
Held: His appeal failed. However, the county court would have had jurisdiction to restrain the placement by injunction.
Wilson J said: ‘I consider that jurisdiction is conferred upon the county court by s 38 of the County Courts Act 1984 (and upon the High Court by s 37 of the Supreme Court Act 1981) to enjoin a local authority from placing a child for adoption even if authorised to do so by a subsisting placement order; that such an injunction can be sought, no doubt on a very temporary basis, even without notice to the local authority; and that it can be sought at any time after issue of the application for leave or even prior to its issue provided that an undertaking is given to issue it immediately.’
and ‘if this kind of disgraceful conduct is repeated in another case, the likelihood is that the agency’s decision to place the child would be the subject of an application for judicial review. Speaking for myself, I can see no reason why the Administrative Court should not declare unlawful a decision such as that taken by the agency in the instant case. If it did so, it would quash the decision to place the child for adoption. It could then give directions for the hearing of the father’s application under s 24(2) in the county court, and restrain the agency, by injunction, from placing the child for adoption pending the determination of that application.’
Thorpe LJ (dissenting) would allow the appeal said that the authority had been determined to achieve its aims ‘by means more foul than fair.’ The 2002 Act should be read so as to comply with the Human Rights of the father, which would require his application for leave to be joined in the proceedings to serve.
Wall LJ said that he words of the section were clear and precise and it was not possible to read them in such a way as to allow the suspension of proceedings while the father applied for leave to be joined. Nevertheless: ‘speaking for myself, the behaviour of the agency in the instant case is about the worst I have ever encountered in a career now spanning nearly 40 years. ‘
Judges:
Thorpe, Wall, Wilson LJJ
Citations:
[2008] EWCA Civ 439, Times 09-May-2008, [2008] 2 FLR 550, [2008] Fam Law 715, [2008] 2 FCR 93
Links:
Statutes:
Adoption and Children Act 2002 24(5), Human Rights Act 1998 3
Jurisdiction:
England and Wales
Citing:
Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .
Cited – Regina v Derbyshire County Council, ex parte T CA 1990
The court upheld the decision of Swinton Thomas J to grant certiorari to quash the decision of a local authority to move a child to prospective adopters without informing the child’s parents and in an attempt to prevent them making an application to . .
Cited – In Re B (Minors) (Contact) CA 3-Feb-1993
The Judge had a discretion to look again at the natural mother’s case before making an adoption order. In order to minimise delay in any case, and to facilitate efficient decision-making, the court could, exercising its wide judicial discretion, . .
Cited – Norfolk County Council v Webster and others FD 17-Nov-2006
There had been care proceedings following allegations of physical child abuse. There had been a residential assessment. The professionals accepted the parents’ commitment to their son, but also found that they were unreliable. It was recommended . .
Cited – Re L and H (Residential Assessment); CT and Another v Bristol City Council and others CA 14-Mar-2007
Application for leave to appeal against refusal to order residential assessment under section 38(6). ECHR Articles 6 and 8, and the underlying philosophy of the 1989 Act, required that a case be fully investigated and that all the relevant evidence . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Re F and H (Children) CA 24-Aug-2007
The father sought leave to appeal a care order and an order releasing his child for adoption.
Held: The court applied Re W as to the extent of the duty of the appellate court in such matters. The appeal would stand no reasonable prospect of . .
Cited – Warwickshire County Council v M and others CA 1-Nov-2007
The judge had granted the mother leave to apply for revocation of placement orders. The authority appealed. The mother argued that once a change of circumstances was shown, the court was obliged to give leave to apply.
Held: The judge was not . .
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited by:
Cited – Coventry City Council v PGO and Others CA 22-Jun-2011
The children had been placed with short term fosterers. On adopters being found, the fosterers themselves applied to adopt the children. The court was asked whether a county court judge had power to injunct the authority not to remove the children . .
Lists of cited by and citing cases may be incomplete.
Adoption, Local Government, Human Rights
Updated: 27 November 2022; Ref: scu.267387