![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> B v Birmingham City Council & Ors [2004] EWCA Civ 515 (28 April 2004) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2004/515.html Cite as: [2004] 3 WLR 1207, [2005] Fam 105, [2004] EWCA Civ 515, [2004] 2 FCR 129, [2004] 2 FLR 337, [2004] Fam Law 560 |
[New search]
[Context]
[View without highlighting]
[Printable RTF version]
[Buy ICLR report: [2004] 3 WLR 1207]
[Buy ICLR report: [2005] Fam 105]
[Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
FAMILY DIVISION
HIS HONOUR JUDGE RODERICK WOOD QC
BMO1A 09526/9528/9529/9530
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE NEUBERGER
and
MR JUSTICE GAGE
____________________
SAMANTHA B |
Applicant |
|
- and - |
||
BIRMINGHAM CITY COUNCIL JASON B B (CHILDREN) Mr & Mrs "A" |
1st Resp. 2ndResp. 3rd/4th Resp. 5th Resp. |
____________________
Mr R McCarthy QC& Miss M Corbett (instructed by Birmingham CC Legal Services) for the Local Authority
Mr A Hayden QC & Miss L Cavanagh (instructed by Fish & Co.,) for the 2nd Respondent
Mr M Keehan QC (instructed by Blair Allison) for the Guardian
Mr A Neaves (instructed by Anthony Collins & Co.,) for Mr & Mrs A
Hearing dates : 10th March 2004
____________________
Crown Copyright ©
Lord Justice Thorpe :
The Facts
"The evidence shows that Mr and Mrs B have already made mayhem of the lives of their elder children and are likely to make mayhem of the lives of all of their children if they are given the opportunity to do so."
"It is sometimes argued that a freeing order exposes a child to a dangerous state of limbo, in which drift and delay can occur, because it extinguishes all other parental responsibility and leaves the local authority with sole parental responsibility. In this case, however, I see that sole parental responsibility as a positive advantage for these children. Mr and Mrs B are dedicated to exercising their parental responsibility (and the rights they claim with it) to meet their own needs without regard to the significant harm which they do or may do to their children. In these circumstances, the sooner their role in the lives of their children is terminated, the better for the sake of the children's welfare."
"On the strict understanding that:
i) I do not guarantee its accuracy or applicability andii) she is free either to challenge its accuracy or its applicability."
i) Was the placement with Mr and Mrs A on the 13th August 2002 an unlawful placement in breach of Section 56 of the Act?ii) If yes, are the circumstances defined by Section 20(i) of the Act satisfied to enable Mr and Mrs B to apply for the discharge of the freeing orders of 20th December 2001?
- "The making of the order was made whilst the parents were in custody. The parents are now at home, and have a stable relationship and home.
- The parents still believe the children have a close attachment to their natural parents and extended family network.
- No information has been forthcoming from the local authority, and the parents are concerned about the well-being of the children."
"20(1) The former parent, at any time more than 12 months after the making of the order under S18 when -
(a) no adoption order has been made in respect of the child, and
(b) the child does not have his home with a person with whom he has been placed for adoption,
may apply to the court which made the order for a further order revoking it on the ground that he wishes to resume parental responsibility."
Mr McFarlane contends that his client's right to apply for parental responsibility matured on 20th December 2002 since by that date C and T had not been adopted or lawfully placed for adoption.
Mr McFarlane contends that S20 (1)(b) is to be construed as though the word "lawfully" had been written in before the word "placed".
"56(1) Except under the authority of an order under S55 . . . it shall not be lawful for any person to take or send a child who is a British subject . . . out of Great Britain to any place outside the United Kingdom, the Channel Islands and the Isle of Man with a view to the adoption of the child by any person not being a parent, guardian or relative of the child; and any person who takes or sends a child out of Great Britain to any place in contravention of this sub-section, or makes or takes part in any arrangements for placing a child with any person for that purpose, shall be guilty of an offence and liable on summary conviction to imprisonment not exceeding three months or to a fine not exceeding level 5 on the standard scale or to both."
"19(1) A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.
(2) A local authority may, with the approval of every person who has parental responsibility for the child, arrange for or assist in arranging for, any other child looked after by them to live outside England and Wales.
(6) Section 56 of the Adoption Act 1976 (which requires authority for the taking or sending abroad for adoption of a child who is a British subject) shall not apply in the case of any child who is to live outside England and Wales with the approval of the court given under this paragraph."
Lord Justice Neuberger:
Introduction
"The evidence shows that Mr and Mrs B have already made mayhem of the lives of their elder children and are likely to make mayhem of the lives of all of their children if they are given the opportunity to do so."
He concluded that "the sooner [the parents'] role in the lives of their children is terminated, the better for the sake of the children's welfare".
The legal framework
"In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
"A person other than an adoption agency shall not make arrangements for the adoption of a child, or place a child for adoption, unless-
(a) the proposed adopter is a relative of the child, or
(b) he is acting in pursuance of an order of the High Court."
Section 11(3) provides that anyone who contravenes s11(1) "shall be guilty of an offence" and liable on conviction to a prison term of up to three months and/or a fine.
i) the child is "free for adoption" under s18 of the 1976 Act, andii) the consent of each parent or guardian of the child is either freely given or dispensed with by the court on one or more of the grounds specified in s16(2).
"On the making of an order under this section, parental responsibility for the child is given to the adoption agency and subsections (2) to (4) of section 12 apply as if the order were an adoption order and the agency were the adopters."
Section 18(6) entitles any parent or guardian of the child to declare that he or she wishes to have no further involvement "in future questions concerning the adoption of the child". Sections 19 and 20 apply to a parent or guardian who does not so declare; such a person is referred to as a "former parent": see s19(1).
"(a) whether an adoption order has been made in respect of the child and (if not)
(b) whether the child had his home with a person with whom he has been placed for adoption."
In a case where the notice states that s19(2)(a) is not satisfied but s19(2)(b) is satisfied, s19(3) requires the adoption agency concerned to give further notice to the parent if and when any adoption order is made or if and when the child ceases to have his home with the person with whom he has been placed for adoption.
"(i) The former parent, at any time more than 12 months after the making of the [freeing] order when-
(a) no adoption order has been made in respect of the child, and
(b) the child does not have his home with a person with whom he has been placed for adoption
may apply to the court which made the order for a further order revoking it on the ground that he wishes to resume parental responsibility."
"While the application is pending the adoption agency having parental responsibility shall not place the child for adoption without the leave of the court."
Section 20(3) provides that the revocation of a freeing order extinguishes the parental responsibility given to an adoption agency pursuant to s18(5) and returns such responsibility for the child to its mother (and, if she was married to him at the time of the child's birth, to the father).
"The court shall not make an adoption order in relation to a child unless it is satisfied that the applicants have not, as respects the child, contravened section 57."
"… [A]t any time after a child has been placed with any person in pursuance of arrangements made by an adoption agency for the adoption of the child by that person, and before an adoption order has been made on the application of that person in respect of the child -
(a) that person may give notice to the agency of his intention not to give the child a home; or
(b) the agency may cause notice to be given to that person of their intention not to allow the child to remain in his home."
In that event, by virtue of s30(3) the person referred to must, within seven days of that notice "cause the child to be returned to the agency, who shall receive the child".
"Where on an application made in relation to a child by a person who is not domiciled in England or Wales or Scotland or Northern Ireland an authorised court is satisfied that he intends to adopt the child under the law of or within the country in which the applicant is domiciled, the court may, subject to the following provisions of this section, make an order giving him parental responsibility for the child."
Subsection (2) applies many of the provisions of Part II in relation to such a order. In particular, it applies s13(1), subject to an increase in the period from 13 weeks to 26 weeks.
"Except under the authority of an order under s55 … it shall not be lawful for any person to take or send a child who is a British subject … out of Great Britain to any place outside the United Kingdom, the Channel Islands and the Isle of Man with a view to the adoption of the child by any person …; and any person who takes or sends a child out of Great Britain to any place in contravention of this section, or makes or takes part in any arrangement for placing a child with any person for that person, shall be guilty of an offence and liable on summary conviction to imprisonment for a term not exceeding three months, or to a fine … or to both."
"(1) A local authority may only arrange for, or assist in arranging for, any child in their care to live outside England and Wales with the approval of the court.
(2) A local authority may, with the approval of every person who has parental responsibility for the child, arrange for, or assist in arranging for, any other child looked after by them to live outside England and Wales.
(3) The court shall not give its approval under subparagraph (1) unless it is satisfied that-
(a) living outside England & Wales would be in the child's best interests;
(b) suitable arrangements have been, or will be, made for his reception and welfare …
(c) the child has consented to living in that country;
(d) every person who has parental responsibility for that child has consented to his living in that country.
(4) [This enables the court to disregard subparagraph (3)(c) in certain circumstances]
(5) [This enables the court to over-ride subparagraph (3)(d) in certain circumstances]
(6) Section 56 of the Adoption Act 1976 … shall not apply in the case of any child who is to live outside England & Wales with the approval of the court given under this paragraph."
Subparagraphs (7) and (8) are concerned with the effect of an appeal against an order made under paragraph 19(1).
The issues
i) "no adoption order [had] been made in respect of [either] child", andii) "[Neither] child [had] his [or her] home with the person with whom he [or she] has been placed for adoption".
i) the wide words of s56(1) mean that the council acted unlawfully when, without the authority or an order under s55, they placed C and T for adoption with Mr and Mrs A outside the United Kingdom; and
ii) an unlawful placing for adoption is outside the ambit of s20(1)(b).
The first issue: did s56 render the placing of the children abroad unlawful?
"The purpose of s52 is plain. It is to prohibit absolutely the removal of a child who is a British subject from the British Islands with a view to its adoption, except under the authority of a provisional adoption order under s53 …. [T]he court cannot properly, whatever the merits of the case from the point of view of the child's welfare, give the leave for removal which is sought, because to do so in the present state of affairs would involve a breach of s52 of the Act."
i) the arrangement has "the approval of every person who has parental responsibility for the child"; andii) the child is "looked after by" the local authority.
Given that parental responsibility for a "freed" child rests solely with the adoption agency in light of s18(5), this would mean that s56 would be disapplied in the case of virtually every "freed" child.
"(a) in their care; or
(b) provided with accommodation by the authority in the exercise of any function (in particular those under this Act) which are social services functions within the meaning of the Local Authority Social Services Act 1970 …" - see s22(1) of the 1989 Act.
i) it is an anomaly which is more generally inherent in the 1976 Act;ii) it was an anomaly under the 1958 Act, to which attention had been drawn in Re M;
iii) the contrary conclusion would itself result in other anomalies.
The second issue: is s20(1)(b) satisfied as the placements were unlawful?
"[T]he court hearing an adoption application where there had been a proved breach of s11 was not prohibited from making an order notwithstanding the absence of a statutory dispensing and retrospective power. It must take the breach into account in considering whether public policy required that the order should be refused because of the applicants' criminal conduct …."
Balcombe LJ went to observe that the head note "accurately represents the decision of Douglas Brown J in what was a very careful and reserved judgment with which I wholly agree". Accordingly, the court is not precluded from making an adoption order notwithstanding that the arrangements for the proposed adoption, or the placing of the child for the proposed adoption, was in breach of s11 which, like s56 provides for criminal sanction in the event of its breach (For recent confirmation, see Re C (Adoption: Legality) [1999] 1 FLR 370 at 382 per Johnson J). I am far from suggesting that it follows from this as a matter of inexorable logic, that the parents' contention that s20(1)(b) is satisfied must be wrong, but it does appear to me that the reasoning in Re G and the similarities between ss11 and 56 tend to support the case of the local authority and the guardian on this issue.
The third issue: the effect of the s55 order
Conclusion
i) The placing for adoption by the council of the two children with Mr and Mrs A outside the United Kingdom contravened s56, notwithstanding the freeing orders, and the provisions of paragraph 19(2).ii) Such a placing of the children was nonetheless an effective placing for adoption as a matter of fact for the purposes of s20(1)(b);
iii) if that is wrong, then the s20 application must nonetheless fail in light of the s55 order made on 5th December 2003.
Mr Justice Gage :