Local authorities and freeing orders

Hayley Waine looks at the key issues for local authorities in relation to freeing orders, following a key High Court ruling last year.

On 9 July 2012, Tim Loughton MP, Parliamentary Under Secretary of State for Children and Families wrote to all local authorities following the Lancashire County Council case to advise local authorities to review all children’s cases whose legal status is “freed for adoption” or who are subject to a Placement Order but whose plan has changed from adoption to ensure that their care plan and legal status is correct and up-to-date.

The case of A and S (Children) v Lancashire County Council concerned two children whose legal status was “freed for adoption” but for whom adoption was no longer the plan and no appropriate care plans were in place.

The Judge hearing the case called for a nationwide review of cases where children remain under unsuccessful Freeing Orders or Placement Orders after concluding that Lancashire County Council breached the human rights of these two teenagers.

Mr Justice Peter Jackson said a review of identified cases was necessary “to ensure that such children are not being disadvantaged as a result of their incorrect legal status” and that “there was a pressing need for the independent reviewing system to work more effectively than it did for the boys in the case before him” and that the boys had suffered “real, lifelong damage” and “irreparable harm” reflected in the declarations he would make under the Human Rights Act 1998.

He added “Over the years, the Local Authority defaulted on its duties towards the children and its independent reviewing system did not call it to account. The matter was never returned to Court as it should have been and as a result the Local Authority’s actions did not come under independent scrutiny” and “the Local Authority failed to react when the destination changed from adoption to long-term fostering”.

He concluded that as a result of a catalogue of failings, Lancashire had breached the boys’ rights under the following Articles of the European Convention on Human Rights: 8 (the right to respect for private and family life), 6 (the right to a fair hearing) and 3 (no one shall be subjected to torture or to inhuman or degrading treatment or punishment).

The Independent Reviewing Officer had also breached Articles 8 and 6, he said. This was because he had failed to identify that their human rights had been and were being infringed, take effective action to ensure that Lancashire acted upon the recommendations of Looked After Children reviews and failed to refer the circumstances of A and S to Cafcass Legal.

A copy of the Judgment was to be sent to the Children’s Commissioner so that she could see whether any action was needed to protect the situation of other children.

The points below are intended to be a quick reference for the salient issues when a child is freed for adoption, these are:

1. A Freeing Order is made under Section 18 of the Adoption Act 1976. The Care Order is revoked by the making of a Freeing Order unlike a Placement Order is in force where a Care Order is suspended.
2. The parental responsibility of the parents is extinguished by the making of a Freeing Order and so it is the adoption agency which holds sole parental responsibility. In practice an agency decision-maker in this position could usefully delegate the exercise of parental responsibility to the service manager of the Children in Care team.
3. The IRO will continue to review the child as a Looked After Child when they are not placed for adoption because a child freed for adoption but not placed for adoption is provided with accommodation under Section 21 of the Children Act 1989.
4. The IRO cannot invite the birth parents to the Looked After Children review as parents because they are former parents by virtue of the extinguishment of their parental responsibility. A possible solution is to consider whether the birth parents are “significant others” to enable them to take part in the Looked After Children review if this fits the circumstances of a particular case.
5. Hence the reference that is being made to a child in these circumstances being an “statutory orphan”.
6. If the Local Authority considers that the parents should resume parental responsibility and the care of a particular child then the Local Authority can apply to the High Court under the inherent jurisdiction to discharge the Freeing Order.
7. If the Local Authority considers that the child should remain looked after with a care plan of long-term fostering it will be necessary for the Local Authority to make application to the High Court under the inherent jurisdiction to discharge the Freeing Order. Schedule 4, paragraph 7(2) of the Transitional Provisions under the Adoption & Children Act 2002 inserts an update into Section 20(2)(c) of the Adoption Act 1976. Section 20 of the 1976 Act deals with the revocation of a Section 18 Order (a Freeing Order). The update states that the revocation of a Freeing Order operates to “revise any care order within the meaning of that Act”.

In effect, this means that when an application is made to discharge the Freeing Order the Care Order is automatically revived. This will also mean that the “former parents” whose parental responsibility was extinguished by the granting of a Freeing Order will once again acquire parental responsibility and will become part of the statutory reviewing process. Any contact issues will need to be picked up with a Section 34(4) Order under the Children Act 1989.

Hayley Waine is a Legal Executive in the People Department at Essex Legal Services. She can be contacted on 01245 506620 or by This email address is being protected from spambots. You need JavaScript enabled to view it..