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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> F (A Child) [2008] EWCA Civ 439 (01 May 2008) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2008/439.html Cite as: [2008] 2 FCR 93, [2008] 2 FLR 550, [2008] Fam Law 715, [2008] EWCA Civ 439 |
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COURT OF
JUDICATURE
COURT OF APPEAL
(CIVIL DIVISION)
ON APPEAL
FROM THE BRIGHTON COUNTY
COURT
HER HONOUR JUDGE COATES
HB07Z00163
![]() ![]() Strand, London, WC2A 2LL |
||
![]() ![]() |
B e f o r e :
LORD JUSTICE WALL
and
LORD JUSTICE WILSON
____________________
IN THE MATTER ![]() ![]() |
____________________
Miss J Briggs (instructed by East Sussex CC Legal Services) for the Local Authority
Miss G Buckley (instructed by Hillman Smart & Spicer) for the Mother.
Hearing dates: 19th March 2008
____________________
OF
JUDGMENT
Crown Copyright ©
Lord Justice Thorpe:
"BY URGENT FAX: 01273 481900
URGENT ATTENTIONOF
![]()
Dear Sirs
J-L F D.O.B.11
.06.06
We are instructed by M C, J-L's father.
We understand a Placement Order was made in the Brighton CountyCourt
on 17 August 2007. We have been instructed by Mr C to apply to the
Court
for leave to revoke the Placement Order on the basis that his circumstances have changed since the Order was made.
We have checked with theCourt
who inform us that the application has now been issued but, due to the fact that the Adoption clerk is away,
may
not be served until Monday. We have requested permission to abridge time for service
of
the Application.
In the meantime, we refer you to the Adoption and Children Act 2002 s24(5) and would you please confirm by returnof
fax that J-L has not yet been placed since we understand she went to Matching Panel early last week.
Yours faithfully"
"(1
) The
court may
revoke a placement order on the application
of
any person.
(2) But an applicationmay
not be made by a person other than the child or the local authority authorised by the order to place the child for adoption unless—
(a) thecourt
has given leave to apply, and
(b) the child is not placed for adoption by the authority.
(3) Thecourt
cannot give leave under (2)(a) unless satisfied that there has been a change in circumstances since the order was made.
(4) If thecourt
determines, on an application for an adoption order, not to make the order, it
may
revoke any placement order in respect
of
the child.
(5) Where—
(a) an application for the revocationof
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 childmay
not without the
court
's leave be placed for adoption under the order."
"Section 24(5)of
the Act provides that, where an application for the revocation
of
a placement order has been made and has not been disposed
of
, the child
may
not be placed for adoption without the
court
's leave. Notwithstanding submissions on behalf
of
the mother to the contrary, the judge held that there was nothing, whether in that or elsewhere, which precluded a placement without leave while an application for leave to apply for revocation was pending. I agree with the judge; and in this
court
the mother does not argue to the contrary."
"where- (a) an application for the revocationof
a placement order or an application for leave to apply has been made and has not been disposed
of
,"
or words to that effect.
"The judge went on to observe, however, that, were an application for leave to have been issued but not to have been disposedof
, it would normally be good practice for a local authority either to agree not to place the child until its disposal or at least to agree to give notice, say
of
14 days, to the applicant
of
any proposed placement. In this regard I also agree with him. Given such notice, the applicant might perhaps be able either to take steps to challenge the lawfulness
of
the decision to place at that juncture or, probably more easily, to seek an expedited hearing
of
the application for leave, from which might flow, in the fine, developing tradition
of
collaboration between local authorities and
courts
, a short further agreed moratorium on placement until the hearing."
Lord Justice Wall:
Introduction
The conduct of
the local authority / adoption agency in this case
The argument for the appellant
"(1
) whether the wording in section 24(5)
of
the 2002 Act, namely: "an application for the revocation
of
a placement order has been made" can be interpreted to include the application for leave to make the application;
(2) whether the wordingof
section 24(5) should be interpreted in this way so as to give effect to the Convention Rights
of
the applicant to a fair hearing, and to family life; and
(3) if not, whether section 24(5) is incompatible with the ECHR, and if so, whether a declaration to that effect should be made."
"Section 24(5)of
the Act provides that, where an application for the revocation
of
a placement order has been made and has not been disposed
of
, the child
may
not be placed for adoption without the
court
's leave. Notwithstanding submissions on behalf
of
the mother to the contrary, the judge held that there was nothing, whether in that subsection or elsewhere, which precluded a placement without leave while an application for leave to apply for revocation was pending. I agree with the judge; and in this
court
the mother does not argue to the contrary. The judge went on to observe, however, that, were an application for leave to have been issued but not to have been disposed
of
, it would normally be good practice for a local authority either to agree not to place the child until its disposal or at least to agree to give notice, say
of
14 days, to the applicant
of
any proposed placement. In this regard I also agree with him. Given such notice, the applicant might perhaps be able either to take steps to challenge the lawfulness
of
the decision to place at that juncture or, probably more easily, to seek an expedited hearing
of
the application for leave, from which might flow, in the fine, developing tradition
of
collaboration between local authorities and
courts
, a short further agreed moratorium on placement until the hearing."
"I approach the taskof
construing section 139(2), therefore, on the basis that Parliament, by enacting the procedural requirement to obtain leave, did not intend the result to be that a claimant might be deprived
of
access to the
courts
, unless there is express language or necessary implication to the contrary. If there is no express language, there will be no necessary implication unless the legislative purpose cannot be achieved in any other way. Procedural requirements are there to serve the ends
of
justice, not to defeat them. It does not serve the ends
of
justice for a claimant to be deprived
of
a meritorious claim because
of
a procedural failure which does no substantial injustice to the defendant."
"…In other words, the statutory phrase "if ….. the welfareof
the child requires it", should be read as a non-exhaustive expression
of
the terms on which the discretion can be exercised, so that the power is exercisable not merely if the welfare for the child requires it, but wherever it was required to give effect, as required by the Convention, to the rights
of
others. This is a process
of
construction which in my judgment comfortably satisfies the criteria identified in Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557, and which is therefore required by section 3."
Discussion
Good practice
"BY URGENT FAX (number given)
URGENT ATTENTIONOF
(named individual)
Dear Sirs,
(Child's name and dateof
birth given)
We are instructed by (the father's name) (the child's) father.
We understand a placement order was made in the (named) CountyCourt
on 17 August 2007. We have been instructed by (the father) to apply to the
court
for leave to revoke the placement order on the basis that his circumstances have changed since the order was made.
We have checked with thecourt
who inform us that the application has now been issued but, due to the fact that the Adoption clerk is away,
may
not be served until Monday (21 January). We have requested permission to abridge time for service
of
the application.
In the meantime, we refer you to the Adoption and Children Act 2002. section 24(5) and would you please confirm by returnof
fax that (the child) has not yet been placed since we understand she went to Matching Panel early last week."
"It was agreed at this review that everything was going extremely well and therefore (the child) would move to the prospective adopters as proposed at the Introduction Meeting held on 15 January2008
."
What should have happened in the instant case.
"We invite you to give an undertaking that you will take no steps to place (the child) with prospective adopters pending the hearingof
our client's application. If that undertaking is not received by 10.00 am on 18 January, we shall apply without notice in the first instance to the county
court
for an order in those terms."
Lord Justice Wilson:
"Certainly, the rightof
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 according to the needs and resources
of
the community and
of
individuals … Nonetheless, the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence
of
the right is impaired."
The essence of
the appellant's entitlement to a fair hearing in relation to the child's placement for adoption was that he should have had, as he did, a full opportunity to participate in the proceedings which led to the making
of
the placement order on 17 August 2007. Thereafter and until placement the law furnished him with the right to seek leave to apply for its revocation; and I cannot accept that the law's failure to provide that a prohibition against placement without leave should be an automatic consequence
of
the issue
of
his application for leave (as opposed to its provision to him
of
an opportunity to apply for such prohibition) was other than a permissible limitation upon his right
of
access to the
court
at that stage. The application for leave made by this appellant, however poor its prospects, was made bona fide out
of
concern to offer the child a home with a biological parent and
of
a sensation that such was action which a responsible father should take. Applications for leave by other parents might however be made mala fide, in order simply to thwart the plan for adoption made by the local authority and endorsed by the
court
. If the automatic consequence
of
the mere issue
of
their applications for leave were to be a prohibition against placement without leave, they would be able to arrest, at any rate temporarily, a long-arranged placement for which the children had been fully prepared and which should in their interests proceed without hitch. Thus, while in the present case East Sussex have misused the law, as it stands, in order to thwart the appellant's proper approach to the
court
, an applicant could misuse the law, if it stood otherwise, in order to thwart a local authority's proper plans for the child.