| Adoption and Children Act 2002 update | |||||
| Seminar Notes | |||||
 These notes were prepared by Gabrielle Jan Posner for the continuing education seminar "Care Law 2007 - Perfecting Practice in Public Law Proceedings" given by members of the 2 Gray's Inn Square Chambers Family Group (with guest speaker Penny Cooper) on 7th February 2007. |
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| Topics Covered:- | |||||
1. |
Practice and procedure | ||||
2. |
Considerations for the court and the adoption agency and the new welfare checklist | ||||
3. |
The extended family | ||||
4. |
The making of placement orders | ||||
5. |
Special guardianship orders | ||||
6. |
Children giving evidence in public law proceedings | ||||
7. |
Recent cases of interest to care practitioners | ||||
| (click on a topic to jump to relevant section) | |||||
| Practice and procedure | |||||
| - | President’s Guidance (Adoption: The New Law and Procedure) [2006] 1 FLR 1234 | ||||
| - | Re F (Adoption: Natural Parents) [2006] EWCA Civ 1345 | ||||
| Where an application is made under the Adoption and Children Act 2002 to adopt a child who has already been freed for adoption, the Adoption Act 1976 applies and there is no requirement to give notice to the natural parents. | |||||
| - | M-H (A Child) [2006] EWCA Civ 1864 | ||||
| Before making a final care order and placing the child for adoption, there should have been an assessment of the father of the child’s half-sibling. | |||||
| Considerations for the court and the adoption agency and the new welfare checklist | |||||
| - | Note: | ||||
| · | Section 1(2) The child’s welfare throughout his life is the paramount consideration of both the court and the adoption agency | ||||
| · | Section 1(4)(c) Consideration must be given to the impact of adoption | ||||
| · | Section 1(4)(f) The position of the extended family must be considered and there is a new emphasis on the importance of retaining links with the child’s natural family | ||||
| · | Section 1(5) The adoption agency, but not the court, is required to consider, but is not bound by, the child’s religion, race, culture etc. | ||||
| · | Section 1(6) The court must consider first whether to make any other order and then apply the no order principle | ||||
| · | Section 1(7) The considerations and the new welfare checklist apply to all substantive applications in relation to adoption and placement orders, but not to applications for leave. | ||||
| The extended family | |||||
| - | The importance of exploring at an early stage of care proceedings, the possibility of a child being placed with family members rather than in foster care cannot be over-emphasised. | ||||
| - | Paragraph 56 of the case management checklist, appendix A/3 of the Protocol, p48, asks whether consideration has been given to whether a family group conference can be held and if any directions would assist to facilitate this | ||||
| - | Family group conferences | ||||
| A valuable, but under-used resource. Can you compel the local authority to convene one? | |||||
| - | In the Inner London & City Family Proceedings Court there is a standard direction that the local authority should explore whether there are any family members willing to care for the child and to advise the court of the outcome of its enquiries. A direction may then be made that the local authority use its best endeavours to convene a family group conference and file and serve the minutes. | ||||
| - | There are two recent cases on placement within the extended family | ||||
| · | A London Borough Council v M and another [2006] EWHC 1907 | ||||
| · | C City Council v SH, RT and JT | ||||
| - | There is a useful article Placing Children with Family Members [2006] Fam Law 948, which explores the differences between placement under care, residence and special guardianship orders. | ||||
| - | What is the position regarding relatives who come forward following the making of a final care order where there is a pending application for a placement order? | ||||
| · | Argue that the court cannot make a placement order pending an assessment of the relative by virtue of s1(4)(f) | ||||
| · | Seek an assessment of the relative, preferably by an independent social worker, rather than a “viability assessment” by the permanency team | ||||
| · | Make an application for the relative to be joined as a party to the application for a placement order on a Form FP2 (application notice Part 9 of the Family Procedure (Adoption) Rules 2005) | ||||
| · | Make the application meaningful | ||||
| · | Will the court treat the application in the same way as an application to be joined as a party to care proceedings under Rule 4.7 of the Family Proceedings Rules 1991 / Rule 7 of the Family Proceedings Courts (Children Act 1989) Rules 1991? | ||||
| · | Rule 23(3) of the Family Procedure (Adoption) Rules 2005 simply states that the court may at any time direct that any person be made a respondent to the proceedings. R26(1)(c) states that at the first directions hearing the court will consider whether the child or any other person should be a party to the proceedings and, if so, give directions in accordance with r23(3) joining that person as a party. | ||||
| The making of placement orders | |||||
| See sections 18 to 35 of the Adoption and Children Act 2002 | |||||
| The Adoption Agencies Regulations 2005 | |||||
| - | Re P-B (Placement Order) [2006] EWCA Civ 1016 | ||||
| Before a local authority can apply for a placement order, it must have gone to the adoption panel and its decision must have been ratified by the agency decision maker (see s22 & reg 19) | |||||
| - | Re R (Care: Plan for Adoption: Best Interests) [2006] 1 FLR 483 | ||||
| It is not generally good practice where the care plan is for adoption for the court to make a final care order pending the case going to panel etc. Otherwise the danger is that the court will approve a care plan that may not be capable of being put into effect | |||||
| - | The Adoption Agencies Regulations 2005 deal with | ||||
| · | The establishment and composition of the new adoption panels (regs 3 -10) | ||||
| · | The duties of the adoption agency in relation to children being considered for adoption (regs 11 – 20) | ||||
| · | The duties of the adoption agency in relation to prospective adopters (regs 21 – 30) | ||||
| · | The duties of the adoption agency in relation to placement (regs 31 – 34) | ||||
| · | Placement and reviews (regs 35 – 38) | ||||
| · | Keeping of case records (regs 39 - 44) | ||||
| · | Information about the child to be included in the permanance report (sched 1, part 1) | ||||
| · | Information about the child’s family and others to be included in the permanence report (sched 1, part 3) | ||||
| · | Information to be included in the child’s health report (sched 1, part 2) | ||||
| · | Information relating to the health of the child’s natural parents and siblings (sched 1, part 4) | ||||
| - | Note | ||||
| · | The adoption panel makes a recommendation, the decision comes from the agency decision maker | ||||
| · | The leave of the court should be sought to disclose relevant documents (e.g. experts’ reports and the report of the children’s guardian) to the adoption panel; otherwise the panel will have before it only information provided by the social worker | ||||
| · | If any party is dissatisfied with the recommendation of the adoption panel, he / she should request the minutes of any discussion and the formal recommendation | ||||
| - | The giving and withdrawing of, and dispensing with, parental consent to the making of a placement order is dealt with in section 52 of the Adoption and Children Act 2002. | ||||
| The test in s52(1)(b) is that the welfare of the child requires the consent to be dispensed with. | |||||
| - | Contact is dealt with in sections 26 and 27 of the Adoption and Children Act 2002. | ||||
| Save that there is no presumption in favour of reasonable parental contact, the provisions are similar to section 34 of the Children Act 1989. | |||||
| - | S27(4) provides that before making a placement order the court must- | ||||
(a) |
consider the arrangements which the adoption agency has made, or proposes to make, for allowing any person contact with the child, and | ||||
(b) |
invite the parties to the proceedings to comment on those arrangements. | ||||
| - | Parental responsibility is dealt with in section 25 of the Adoption and Children Act 2002 | ||||
(1) |
This section applies while- | ||||
(a) |
a child is placed for adoption under section 19 or an adoption agency is authorised to place a child for adoption under that section, or | ||||
(b) |
a placement order is in force in respect of a child. | ||||
(2) |
Parental responsibility for the child is given to the agency concerned. | ||||
(3) |
While the child is placed with prospective adopters, parental responsibility is given to them. | ||||
(4) |
The agency may determine that the parental responsibility of any parent or guardian, or of prospective adopters, is to be restricted to the extent specified in the determination. | ||||
| Special guardianship orders | |||||
| - | Sections 14A to 14F of the Children Act 1989 are now in force | ||||
| - | A Local Authority v Y, Z and Others [2006] 2 FLR 41 | ||||
| The approach of the court to SGO’s where everyone is agreed that the children should remain living with their relatives | |||||
| - | S v B and Newport City Council; Re K | ||||
| An SGO considered to be more appropriate than an adoption order where the child was in a family placement | |||||
| - | Birmingham City Council v R [2006] EWCA Civ 1748 | ||||
| Confirms that a person not automatically entitled to apply for an SGO must have leave before a report can be ordered and a report is mandatory | |||||
(1) |
a person who requires the permission of the court to make an application for a special guardianship order cannot either make an application for such an order or give notice of his intention to do so unless and until he has obtained the court's permission to make the application. | ||||
(2) |
Section 14(A)8 is not triggered where a person who requires the court's permission to make an application but has not obtained it, purports to give notice of his intention to make an application for a special guardianship order; | ||||
(3) |
A judge should not invoke section 14A(9) to compel a local authority to perform its obligations under section 14A(8) at the instance of a person who needs but has not obtained permission to apply for a SGO unless section 14A(6)(b) applies. | ||||
(4) |
There is nothing in the Act or the regulations which permits the court to restrict the nature and scope of a report under section 14A(8). | ||||
| - | 14A Special guardianship orders | ||||
(1) |
A "special guardianship order" is an order appointing one or more individuals to be a child's "special guardian" (or special guardians). | ||||
(2) |
A special guardian— | ||||
(a) |
must be aged eighteen or over; and | ||||
(b) |
must not be a parent of the child in question. | ||||
(3) |
The court may make a special guardianship order with respect to any child on the application of an individual who— | ||||
(a) |
is entitled to make such an application with respect to the child; or | ||||
(b) |
has obtained the leave of the court to make the application, | ||||
| or on the joint application of more than one such individual. | |||||
(4) |
Section 9(3) applies in relation to an application for leave to apply for a special guardianship order as it applies in relation to an application for leave to apply for a section 8 order. | ||||
| NB Section 9(3), as amended, reads:- | |||||
| A person who is, or was at any time within the last six months, a local authority foster parent of a child may not apply for leave to apply for a section 8 order with respect to the child unless— | |||||
(a) |
he has the consent of the authority; | ||||
(b) |
he is a relative of the child; or | ||||
(c) |
the child has lived with him for at least one year preceding the application. | ||||
(5) |
The individuals who are entitled to apply for a special guardianship order with respect to a child are— | ||||
(a) |
any guardian of the child; | ||||
(b) |
any individual in whose favour a residence order is in force with respect to the child; | ||||
(c) |
any individual listed in subsection (5)(b) or (c) of section 10 (as read with subsection (10) of that section); | ||||
(d) |
a local authority foster parent with whom the child has lived for a period of at least one year immediately preceding the application. | ||||
(6) |
The court may also make a special guardianship order with respect to a child in any family proceedings in which a question arises with respect to the welfare of the child if— | ||||
(a) |
an application for the order has been made by an individual who falls within subsection (3)(a) or (b) (or more than one such individual jointly); or | ||||
(b) |
the court considers that a special guardianship order should be made even though no such application has been made. | ||||
(7) |
No individual may make an application under subsection (3) or (6)(a) unless, before the beginning of the period of three months ending with the date of the application, he has given written notice of his intention to make the application— | ||||
(a) |
if the child in question is being looked after by a local authority, to that local authority, or | ||||
(b) |
otherwise, to the local authority in whose area the individual is ordinarily resident. | ||||
(8) |
On receipt of such a notice, the local authority must investigate the matter and prepare a report for the court dealing with— | ||||
(a) |
the suitability of the applicant to be a special guardian; | ||||
(b) |
such matters (if any) as may be prescribed by the Secretary of State; and | ||||
(c) |
any other matter which the local authority consider to be relevant. | ||||
(9) |
The court may itself ask a local authority to conduct such an investigation and prepare such a report, and the local authority must do so. | ||||
(10) |
The local authority may make such arrangements as they see fit for any person to act on their behalf in connection with conducting an investigation or preparing a report referred to in subsection (8) or (9). | ||||
(11) |
The court may not make a special guardianship order unless it has received a report dealing with the matters referred to in subsection (8). | ||||
(12) |
Subsections (8) and (9) of section 10 apply in relation to special guardianship orders as they apply in relation to section 8 orders. | ||||
| NB The material parts of section 10(9) read:- | |||||
| Where the person applying for leave to make the application … is not the child concerned, the court shall, in deciding whether or not to grant leave, have particular regard to – | |||||
(a) |
the nature of the proposed application for the … order; | ||||
(b) |
the applicant's connection with the child; | ||||
(c) |
any risk there might be of that proposed application disrupting the child's life to such an extent that he would be harmed by it; and | ||||
(d) |
where the child is being looked after by a local authority | ||||
(i) |
the authority's plans for the child's future; and | ||||
(ii) |
the wishes and feelings of the child's parents. | ||||
| - | Note: | ||||
| · | The court can circumvent the 3 month notice period by requesting a report of its own motion, but the report is obligatory | ||||
| · | The matters to be dealt with in an SGO report are set out in the schedule to The Special Guardianship Regulations 2005. | ||||
| · | Although a report is required, that report does not have to be favourable in order for an SGO to be made | ||||
| · | However, this may mean that the local authority will not provide special guardianship support services and financial support (see further below) | ||||
| · | An SGO is a private law remedy and, if appropriate, s8 contact orders should be made (s14B(1)(a) | ||||
| · | On making an SGO the court must consider whether to vary or discharge any existing s8 order (s14B(1)(b) | ||||
| · | An SGO can be coupled with a supervision order | ||||
| · | An SGO can be varied or discharged unlike an adoption order | ||||
| · | The making of an SGO discharges a care order and a s34 order (see section 91(5A) of the Children Act 1989) | ||||
| · | An SGO does not automatically end upon the making of a care order | ||||
| - | Special guardianship support services & provision of financial support | ||||
| Subject to having proper assessment procedures in place, what assistance any local authority gives is largely a matter for its discretion | |||||
| Section 14F of the Children Act 1989 deals with special guardianship support services and the detailed provisions are contained within the Special Guardianship Regulations 2005. | |||||
| Of particular concern to people who would wish to apply for SGO’s and are eminently suitable for SGO’s to be made in their favour, is that the support and financial packages they are likely to receive are likely to be considerably less generous than if they were approved as local authority foster carers under a care order. It is only a matter of time before this becomes the subject of an application for judicial review; see, for example, the approach to funding issues taken by Munby J in Re X: Barnet London Borough Council v Y and X [2006] 2 FLR 998. | |||||
| Children giving evidence in public law proceedings | |||||
| - | B v A Council (the Torbay case) | ||||
| Suggests that young children should give live evidence where possible | |||||
| - | LM (By her Guardian) v Medway Council, RM and YM [2007] EWCA Civ 9 | ||||
| Suggests that young children should not ordinarily give live evidence. This should happen only in exceptional circumstances | |||||
| If the child does give evidence, this will largely obviate the need for a psychiatrist / psychologist to view the ABE interviews etc. and advise the court regarding the child’s veracity / credibility | |||||
| Recent cases of interest to care practitioners | |||||
| Section 37 investigation | |||||
| - | Re F (Family Proceedings: Section 37 Investigation) [2006] 1 FLR 1122; [2005] EWHC 2935 | ||||
| Emergency Protection Orders | |||||
| - | Re X (Emergency Protection Orders) [2006] 2 FLR 701; [2006] EWHC 510 | ||||
| Split hearing | |||||
| - | CL v East Riding Yorkshire Council, MB and BL [2006] 2 FLR 24; [2006] EWCA Civ 49 | ||||
| - | Re A (Children: Split hearing) [2006] EWCA Civ 714 | ||||
| Threshold criteria | |||||
| - | Re L (Care Proceedings: Significant Harm) [2006] EWCA Civ 1282 | ||||
| Findings of fact | |||||
| - | Re K (Care: Threshold Criteria) [2006] 2 FLR 868; [2005] EWCA Civ 1226 | ||||
| - | Birmingham City Council v H | ||||
| - | Re R (Care: Rehabilitation in Context of Domestic Violence) [2006] EWCA Civ | ||||
| Evidence | |||||
| - | Re B (Allegation of Sexual Abuse: Child’s Evidence) [2006 2 FLR 1071; [2006] EWCA Civ 773 | ||||
| - | Re B (Non-Accidental Injury: Cogency of Evidence) [2006] EWCA Civ 1186 | ||||
| - | Re Z, I and C (Sexual Abuse Evidence) | ||||
| - | D v B (Flawed Sexual Abuse Enquiry) [2006] EWHC 2987 | ||||
| Instruction of experts | |||||
| - | Re S (Children) [2006] EWCA Civ 981 | ||||
| Residential assessment | |||||
| - | Sheffield City Council v V (Legal Services Commission Intervening) [2006] EWHC 1861 | ||||
| Disclosure by police | |||||
| - | Lambeth London Borough v S, C and others [2006] EWHC 326 | ||||
| Practice and Procedure | |||||
| - | B Borough Council v S and S (by the Official Solicitor) [2006] EWHC 2584 | ||||
| - | Re U (Care Proceedings: Criminal Conviction: Refusal to Give Evidence) [2006] 2 FLR 690; [2006] EWHC 372 | ||||
| - | Re F (Contact: Lack of Reasons) [2006] EWHCA Civ 792 | ||||
| - | Haringey London Borough Council v S [2006] EWHC 2001 | ||||
| - | Re Webster; Norfolk Countuy Council v Webster, BBC, Associated Newspapers Ltd and Archant Group [2006] EWHC 2733 | ||||
| - | Re Webster; Norfolk County Council v Webster [2006] EWHC 289 | ||||
| - | H (Children) [2006] EWCA Civ 1875 | ||||
| Local authority obligations | |||||
| - | Re C (Responsible Authority) [2006] 1 FLR 919; [2005] EWHC 2939 | ||||
| - | Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998 | ||||
| - | Re C (Care: Consultation with Parent not in Child’s Best Interests) [2006] 2 FLR 787; [2005] EWHC 3390 | ||||
| - | R (LH) v Lambeth London Borough Council [2006] EWHC 1190 | ||||
| - | B & B v A County Council [2006] EWCA Civ 1388 | ||||
| Section 91(14) orders | |||||
| - | Re C-J | ||||
| - | Re S (Permission to Seek Relief); Re E (Permission to Seek Relief) [2006] EWCA Civ 1190 | ||||
| Human Rights | |||||
| - | Re C (A Child) [2007] EWCA Civ 2 | ||||
| - | Birmingham City Council v S [2006] EWHC 3065 | ||||
| Special Guardianship Orders | |||||
| On 6/2/07 the Court of Appeal ruled on 3 important cases concerning special guardianship orders: | |||||
| - | Re S (A Child) [2007] EWCA Civ 54 | ||||
| CA (Civ Div) (Thorpe LJ, Tuckey LJ, Wall LJ) 6/2/2007 | |||||
| In the circumstances the judge had been entitled to conclude that a child's welfare was better served by a special guardianship order than by an adoption order. The Court of Appeal considered the underlying principles to be applied in making one or other of those two orders and gave guidance on the proper approach in such cases. | |||||
| - | Re AJ (A Child) [2007] EWCA Civ 55 | ||||
| CA (Civ Div) (Scott Baker LJ, Wall LJ) 6/2/2007 | |||||
| Special guardianship orders under the Children Act 1989 s.14A(6)(b) did not effectively replace adoption orders in cases where children were to be placed permanently within their wider families; whether a special guardianship order was appropriate had to be decided on what was in the best interests of the particular child on the particular facts of the case. A judge had been entitled to make an order dispensing with parental consent to an adoption where consent was unreasonably withheld and the adoption order would not unduly distort the family dynamic. | |||||
| - | Re MJ (A Child) [2007] EWCA Civ 56 | ||||
| CA (Civ Div) (Thorpe LJ, Carnwath LJ, Wall LJ) 6/2/2007 | |||||
| An order for adoption was upheld in circumstances where a special guardianship order would be insufficient to ensure the long-term security and stability of a child's placement with a family member and an adoption order best met that child's particular welfare needs. | |||||