Placement orders: a rare sighting

A recent Court of Appeal judgment puts a spotlight on applications for the revocation of placement orders, writes Molly Gill.

Applications seeking permission to apply for the revocation of placement orders are common, yet they often fall short of passing the two-stage test necessary to then move onto substantively challenging the placement order remaining in force. It is rare to come across reported appeal cases of this type, so let’s take a moment to refresh our knowledge on placement orders using the case of Re N (Children: Revocation of Placement Orders) [2023] EWCA Civ 1352. After all, applications don’t necessarily stop when care and placement orders are made.

What are the facts?

In December 2021, placement orders were made for two children, and potential adopters were identified in October 2022 and subsequently introduced to the children. Following the introduction, the children maintained regular contact with the prospective adopters. In March 2023, the mother applied for leave to apply to revoke the placement order. When the application for leave to apply was heard in May 2023, it was unopposed as the mother had demonstrated significant positive changes in her life over the past two and a half years. The court ordered an assessment to evaluate the mother’s changes, her current circumstances, as well as the children’s circumstances and an analysis of their welfare.

In June 2023, the mother’s assessment was negative and the mother made a Part 25 application for an Independent Social Worker to undertake a new assessment. The application was heard in July during a Pre-Trial Review, where it was opposed from both the local authority and the Children's Guardian and was refused by the court.

At the substantive hearing in August, to determine whether the placement order should be revoked, the mother accepted that she was not able to immediately care for the children. While she did not assert that the court could definitively approve the children's return to her in the future, she argued the possibility warranted a further new assessment. She renewed her application for an Independent Social Worker and invited the Court to either revoke the placement order or adjourn for a new assessment.

The Recorder, now HHJ Newport, was tasked with a welfare determination: whether the prospects of a return to the mother's care justified abandoning a two-year plan of adoption. The Recorder placed considerable weight on the changes the mother made but found that they had not brought her to a point where she could meet her two children’s needs. The Recorder concluded that revoking the placement orders would not be in the children's best interests, dismissing the mother's application for revocation and her application for an Independent Social Worker. The mother appealed, and Lord Justice Peter Jackson upheld the Recorder's decision.

What is the legal framework?

Section 24(1) of the Adoption and Children Act 2002 (“ACA 2002”) enables the court to revoke a placement order on the application of ‘any person’. However, subsection (2) introduces a condition: a parent and any other person (except for the child and the local authority) need the court’s permission to apply, and the child should not be ‘placed’ for adoption already. In this article, I will discuss it from a parent’s perspective.

The first stage of the two-stage test for permission for leave to apply is seen at section 24(3): is the court satisfied that there has been a change in circumstances since the placement order was made? The change of the circumstances does not have to be significant but it must be of a nature and degree sufficient to open the door to consideration of whether leave to apply should be given (see: Re P (Adoption: Leave Provisions) [2007] 2 FLR 1069 which was within this year upheld as the correct principle in M (A Child: Leave to Oppose Adoption) [2023] EWCA Civ 404). A change does not have to be unexpected and unforeseen (Re M as above).

If the answer to the first stage of the test is ‘yes’, the second stage is, should leave to apply be granted? The question for the Court is whether in all of the circumstances, taking into account the parent’s ultimate prospects of success in securing a revocation of the placement order and the child’s interests, leave should be given? (NSH v Kingston upon Hull City Council and MC [2008] 2 FLR 918). An application for leave to apply is not covered by section 1(7) of the Adoption and Children Act 2002. Therefore, the child’s welfare is relevant but not paramount (M v Warwickshire County Council [2008] 1 FLR 1093).

If permission to apply to revoke a placement order is granted, then the decision becomes a welfare decision. Section 1 of the ACA 2002 will apply, which encompasses the paramountcy and no delay principle and the welfare checklist – which are the same principles to make the placement order in the first place. The court’s task is to carry out a welfare assessment and evaluation of whether it is in the child’s interests for the placement order to be revoked or to continue. In order to do this the court must compare each realistic option for the child. The burden of proof is on the person seeking to revoke the placement order and it is the civil standard of proof.

What do we learn from this case?

The key takeaway from this case is that the process isn’t a re-run of the public law proceedings, as finding about events which led to the making of a placement order have already been made. The focus of the hearing is for the parent to show that their life has changed since the placement order was made and the respondent local authority and the children’s guardian will have to show what a change of the adoptive plan would mean for the child. It is important to narrow down what is the child’s current situation? What has happened since the placement order was made? What are the parent’s current circumstances? Are the changes enough to satisfy the court that the placement order should be revoked? What are the competing options for the child? Which option is in the child’s best interests?

A key message from this decision is that the evidence before the Court at a revocation hearing will differ in quantity and focus but not quality from the evidence that was given in the proceedings that led to the making of a placement order. The decision to revoke a placement order is just as serious a decision as it was to make one in the first place.

In conclusion, a plan for adoption takes serious and careful deliberation to sever legal ties between a parent and a child. It cannot be undone lightly particularly in the face of a child who need certainty about their future.

Molly Gill is a barrister at Deans Court Chambers.