Court of Appeal

Published May 9, 2008

C v East Sussex County Council (Adoption)

Before Lord Justice Thorpe, Lord Justice Wall and Lord Justice Wilson

Judgment May 1, 2005

While Parliament had given social workers wide powers, which they must not abuse, they had to remember that the court was the ultimate arbiter of what was in the best interests of a child.

Section 24(5) of the Adoption and Children Act 2002 could not be interpreted to include in an application to revoke, an application for leave to make the application.

The Court of Appeal so held by majority (Lord Justice Thorpe dissenting) when dismissing an appeal brought by the father, C, against the refusal by Judge Coates at Brighton County Court on January 30, 2008, of leave to revoke a placement order made, on August 17, 2008, with respect to his child, J-L, by the adoption agency of East Sussex County Council.

The child was born on June 11, 2006, following her parents’ casual relationship. East Sussex County Council issued care proceedings on November 22, 2006. The father was not served with those proceedings and was initially unaware of them.

In January 2008, he learnt that adoption plans were well advanced. He lodged an application for leave to apply to revoke the placement order on January 11, 2008.

Because of staff shortages in the county court the application was not fully processed until January 21, when notices of a hearing on January 30 were sent to the parties.

Despite the father’s emerging challenge, on January 14, the council decision-maker ratified the panel’s decision of January 9 and on January 15 the potential adopters met the child for the first time.

Section 24 of the 2002 Act provides: “(5) Where - (a) an application for the revocation of a placement order has been made and has not been disposed of, and (b) the child is not placed for adoption by the authority, the child may not without the court’s leave be placed for adoption under the order".

Mr Stephen Cobb, QC and Miss Maria Hancock for the father; Miss Joanne Briggs for the council; Miss Geraldine Buckley for the mother.

LORD JUSTICE THORPE, allowing the appeal, said that the placement on the eve of the hearing gave rise to the clearest inference that the council was out to gain its ends by means more foul than fair.

There were many who asserted that councils had a secret agenda to establish a high score of children that they had placed for adoption.

When such suspicions were rife, a history such as this only served to fuel public distrust in the good faith of public authority.

His Lordship accepted the submission for the father that section 3 of the Human Rights Act 1998 required the court to read and give effect to primary legislation in a manner which was compatible, so far as possible to do so, with the European Convention on Human Rights.

To do otherwise would be to deprive the claimant of his article 6 right to a fair trial of his application for leave. The right to a fair hearing was not confined to the purely judicial part of the proceedings and the right was absolute.

LORD JUSTICE WALL, dissenting, said that Lord Justice Thorpe concluded that it was open to the court, in reliance on section 3 of the 1998 Act, to read into section 24(5) of the 2002 Act words which had the effect of protecting the applicant parent from the date of filing of the application for leave rather than from the date of the filing of the revocation application, following the grant of leave.

In his Lordship’s judgment, such an exercise was impermissible. The words of the section were clear, unambiguous and capable of only one meaning. “An application for the revocation of a placement order" meant just that.

What had happened in this case was that there had been a travesty of good practice. The answer was not to allow the appeal but for the Court of Appeal to ensure, in so far as it could, that the conduct of this agency was not repeated elsewhere. His Lordship was of the view that the conduct of the agency was disgraceful.

The conduct of the agency demonstrated a profound, if not total, misunderstanding of its functions under the 2002 Act. Moreover, it provided useful ammunition for those who criticised the family justice system for administering secret justice and who attacked social workers as a group for their arrogance and the manner in which they abused their functions by both removing children from their parents unlawfully, and by stifling legitimate parental responses.

Parliament had given social workers wide powers. They must not abuse them.

Social workers had to remember that, charged as they were under the Children Act 1989 and the 2002 Act with promoting the best interests of the children, the ultimate arbiter of what was in the best interests of the child was the court.

His Lordship was satisfied that the agency quite deliberately set out to prevent the father from being heard. The fact that its workers might have genuinely believed that in so doing they were acting in the best interests of the child concerned was at best irrelevant and at worst dangerous.

Copies of their Lordships’ judgments would be sent to the President of the Family Division and to all the designated family judges for onward transmission to the members of the judiciary who heard adoption proceedings and the British Agency for Adoption and Fostering and to every adoption agency in England and Wales.

In his Lordship’s judgment, M v Warwickshire County Council (The Times December 21, 2007) accurately stated the law.

Once it was accepted that section 24 of the 2002 Act was compliant with the 1998 Act, it was evident that Parliament had drawn a very clear line between an application for leave to apply for the revocation of a placement order, and the substantive application to revoke.

It was with reluctance that his Lordship dismissed the appeal. The father had done a public service by exposing the council’s disgraceful conduct to the public gaze.

Lord Justice Wilson delivered a judgment concurring with Lord Justice Wall.

Solicitors: Lawson Lewis & Co, Eastbourne; Mrs Angela Reid, Lewes; Hillman Smart & Spicer, Eastbourne.

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