Law Report: Adopted child's welfare primary: Re C (a minor: adoption): Court of Appeal (Lord Justice Butler Sloss, Lord Justice Peter Gibson and Sir John Megaw) 17 June 1994

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A court was required to give first consideration to the welfare of the child when deciding whether to grant an adoption agency leave to serve notice of their intention not to allow the child to remain in the care of the foster parent seeking to adopt it.

The Court of Appeal allowed an appeal by the foster mother and would-be adopter of a two-year-old boy, against the decision of Mr Justice Kirkwood, on 6 May 1994, to grant Greenwich London Borough Council leave to serve notice under section 30(2) of the Adoption Act 1976 enabling them to remove the child from her care, with a view to its possible adoption by another couple.

Mark Everall QC, and Jacqueline Marks (J W Saunders & Co) for the foster mother; Clive Newton (Thomas Boyd White) for the guardian ad litem; James Munby QC (Greenwich LBC) for the local authority; Elizabeth Brann (H E Thomas & Co) for the alternative adopters.

LORD JUSTICE BUTLER SLOSS said that the foster mother had made an adoption application in proper form in accordance with section 22 of the Adoption Act, as she was entitled to do.

Part III of the Adoption Act, headed 'Care and protection of children awaiting adoption', provided the framework for restrictions on removal of a child pending an adoption application by the person with whom the child was living. Generally, the child could not be moved without leave of the court. Since the child in this case was placed with the foster mother by the local authority under its Children Act powers, and not in its other guise as an adoption agency, sections 30(2) and 31 applied.

Section 30 was headed 'Return of children placed for adoption by adoption agencies'. Section 30(1) related to (a) a notice by a proposed adopter of his intention not to give a home to the child, or (b) a notice by the adoption agency of their intention not to allow the child to remain in the applicant's home.

By section 30(2): 'No notice under paragraph (b) of subsection (1) shall be given in respect of a child in relation to whom an application has been made for an adoption order except with leave of the court to which the application has been made.' By section 31(1): 'Where a person gives notice in pursuance of section 22(1) to the local authority . . . of his intention to apply for an adoption order in respect of a child . . . (b) who was placed with that person otherwise than in pursuance of such arrangements as are mentioned in section 30(1), that section shall apply as if the child had been placed in pursuance of such arrangements except that, where the application is refused by the court or withdrawn, the child need not be returned to the local authority in whose care he is unless that authority so require.'

There were no guidelines in any of these sections as to the court's correct approach on an application by a local authority for leave to remove a child placed in accordance with section 31. The primary issue was whether the welfare test in section 6 of the Adoption Act, which required the court or adoption agency when 'reaching any decision relating to the adoption of a child' to give 'first consideration' to 'the need to safeguard and promote the welfare of the child throughout childhood', applied to applications for leave under Part III of the Act and, in particular, under section 30(2).

In her Ladyship's judgment, it did. The local authority's application was to obtain leave, not to initiate new proceedings, but to take an immediate and decisive step in the life of the child concerned, ie physically to remove him permanently from his present home. If successful, it would have the further intended effect of bringing the adoption proceedings to an end and preventing his present carer from applying to adopt him. Those matters were of direct relevance to the present and long-term welfare of the child.

The questions which the court should ask included the following: Was the application a serious one or was it an abuse of the process of the court? If serious, did the prospective adopter have a real prospect of success or was it a vain hope by, for instance, a devoted foster mother who could not let go but could not be regarded as a suitable adopter? Was the local authority's care plan of such strength that, for instance, the prospective adopters proposed by them would be obviously better for the child than the existing carer(s)? Was there evidence that the family chosen by the local authority were not prepared to wait? If appointed, did the guardian ad litem (provision for whose role was made by rule 47(8) of the Adoption Rules 1984) support the current carer's application?

Those questions were not exhaustive, but the answers to them might well indicate that leave to the local authority should be granted, even if the adoption applicant satisfied the statutory criteria for applying. In the present case, however, the foster mother's application should be heard and the local authority's application should be dismissed.