Family Briefing - Revocation of a placement order

By Valerie Sterling

May 2024

By section 24 (1) of the Adoption and Children Act 2002 the family court may revoke a placement order on the application of ‘any person’ but an application – see subsection 2 - may not be made by a person ‘other than the child or the LA authorised by the order to place the child for adoption’ unless (a) the court has given leave to apply and (b) the child is not placed for adoption by the LA.

Crucially the court cannot give leave under subsection (2) (a) unless satisfied that ‘there has been a change in circumstances since the order was made’.

What does the phrase ‘a change in circumstances’ mean?

In the recent Court of Appeal case of Re N (Children: Revocation of Placement Order) (2023) EWCA Civ 1352 summarised in the February 2024 edition of Family Law at page 159, Lord Justice Peter Jackson notes at the outset of his judgment that such proceedings are ‘unusual’ and that although applications to revoke a placement order are not uncommon there are ‘apparently only two reported cases where the change of circumstances was sufficient to result in revocation being in the child’s best interests’ – and the case of Re N was no exception.

Revocation of placement orders must be in the children’s best interests: see section 1 (1) (a) of the Children Act 1989 ie when a court determines any question with respect to the upbringing of a child the child’s welfare shall be the court’s paramount consideration.

See in this respect the case of Re C (Revocation of Placement Order) (2020) EWCA Civ 1598 Court of Appeal when after care proceedings in relation to the family of three children and concerns for several years of domestic abuse, substance misuse and poor home conditions care and placement orders were granted on the basis of a number of findings of fact which met the section 31 threshold criteria. The children were placed in a short term foster placement while an adoptive placement was found. After the end of proceedings, the mother separated from the father, formed a new relationship, and made a ‘transformation’ to her life. Her new partner had three children who stayed with them for significant periods. The mother sought leave to apply to revoke the care and placement orders under s 24 of the Adoption and Children Act 2002. Final contacts took place between the mother and children, and they were matched with prospective adopters.

The mother disclosed that she was pregnant with a fourth child and a pre birth assessment recorded the positive changes she had made and concluded that the baby should remain in her care.

Considering the positive assessment both the guardian and the LA altered their positions and supported the mother’s leave to apply application.

However, an independent social work assessment found that even with support the children could not be safely returned to the mother’s care. The 7-year-old child had emotional needs which presented a serious risk of her regressing and enduring ‘further trauma’. The guardian and LA were in favour of the children being adopted. The mother’s application for leave to revoke the care and placement orders was dismissed in September 2020 with the court concluding that the children needed to move to a permanent nonfamily placement rather than return to the mother, notwithstanding the progress she had made in taking control of her life. The mother was granted permission to appeal to the Court of Appeal on all grounds with the September 2020 order stayed and the placement of the children with the prospective adopters paused pending determination of the appeal. The appeal was dismissed. The judge’s conclusion was ‘that rehabilitation with the mother was not a realistic option for these children’ (per Baker LJ at para 51). There must be ‘a balancing exercise in which each option is evaluated to the degree of detail necessary’ (see McFarlane LJ in Re G (Care Proceedings: Welfare Evaluation) (2013) EWCA Civ 965, (2014) 1 FLR 670).

Part of such a welfare assessment includes the question of delay. See section 1 (2) of the CA 1989 ‘In any proceedings in which any question with respect to the upbringing of a child arises, the court shall have regard to the general principle that any delay in determining the question is likely to prejudice the welfare of the child.’ In the case of Re N the two children had been ‘in limbo’ for 2 ? years and ‘their childhoods are slipping away’. LJ Peter Jackson concluded that ‘they cannot wait any longer’.

Delay

The key point in the recent case of Re H (Children: Placement Orders) (2023) EWCA Civ 25 October 2023 (case report January 2024 Family Law pp 27 – 28) was delay and uncertainty. In Re H three young children, boys of 3 & 4 and a one-year-old girl were the youngest of M’s 7 children. The family were well known to the LA. Father No 1 was the father of the boys; Father No 2 was the father of the little girl.

In 2021 5 of the children were placed in foster care because of M’s neglect, repeated shop lifting and domestic violence. An ISW assessment of M was negative. The guardian supported the application for care orders for the two boys with a plan of adoption; in December 2021 care and placement orders were made.

M was then caught shop lifting again and sentenced to an 18-month community order and upon conviction she engaged with professionals re substance abuse and domestic abuse.

In July 2022 potential adopters were identified for the two boys; in August 2022 the girl G was born, and the LA began care proceedings. An interim supervision order was made with undertakings from M that she would have no contact with either father. Meanwhile F2 and M were inter alia caught shoplifting again, but the judge refused the LA’s renewed application for an ICO; in Jan 2023 M was granted permission to revoke the placement orders for the two boys.

At final hearing in May 2023, the LA supported the baby girl staying in M’s care but not the boys; the guardian having serious concerns re M’s ability to prioritise/protect the baby girl and supporting removal also for adoption.

The trial judge preferred the reasoning of the LA to the G and concluded that the baby girl G should remain in M’s care under a supervision order and that the placement orders for the two boys be revoked but care orders remain. The guardian appealed to the Court of Appeal on the primary grounds that the judge had erred in his analysis of the ‘risk of future harm’ and had failed to conduct a balanced assessment of the welfare options.

The G’s appeal re the baby girl was dismissed but the G’s appeal re the boys was allowed. Rehabilitation of the two boys would need to be comprehensively tested and any care plan would be dependent on delay and uncertainty - its success being only speculative. The guardian advised that any rehabilitation of the two boys would ‘take time given the need to test it very carefully and gradually.

LJ Peter Jackson drew attention to his earlier judgment in the Court of Appeal of Re F (A Child) (Placement Order: Proportionality) EWCA Civ 2761 in which the trial judge had made care and placement orders against which the mother appealed. The appeal was allowed remitting the case to a different judge. It was held that ‘the court should be slow to interfere with the evaluation of a specialist judge whose conclusions emerged from the crucible of a trial. However, it had not been shown that the evidence in this case met the exacting standard necessary for orders leading to adoption.’

There must be a proportionality analysis, taking account of the nature and likelihood of the risks and their possible consequences; and a genuine comparison between the advantages and disadvantages of adoption and placement at home, whether with reference to the checklist in the Adoption and Children Act 2002 or otherwise. This was the first ground of appeal which was made out – ie that it had not been shown that the evidence in Re F met the exacting standard necessary for orders leading to adoption.

Conclusion

The court when considering a care plan of adoption should focus on the children’s welfare as being paramount; compare the overall welfare advantages and disadvantages of rehabilitation; and ask itself whether adoption is ultimately necessary and proportionate.

Read the PDF version here.