Cheshire East Council

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Judge criticises Mackenzie Friend over timing of application to revoke adoption order

A disputed adoption case has highlighted the problems of reliance on a Mackenzie Friend rather than a solicitor in proceedings, a Family Division judge has suggested.

In A Mother v A Local Authority & Ors [2021] EWHC 2731 (Fam) (published recently on Bailii) Mrs Justice Lieven said that the Mackenzie Friend concerned had not made clear to the mother in the case that if she wanted to apply to revoke adoption orders she had to do so before there was any question of the children moving to the prospective adopters.

She said the Mackenzie Friend had not made the legal position adequately clear to the mother.

The case concerned an unnamed local authority and children A, B and C, aged seven, four and three respectively.

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They were made subject to a Child Protection Plan in August 2018 after emotional abuse and neglect while in the care of their parents.

In February 2020 a placement order was made and in October that year the local authority ratified the decision for the children to be matched to the identified prospective adopters.

Complications arose in the case because of court buildings being closed due to pandemic restrictions and the council received notification from the court that the mother had lodged an application against Child A’s adoption only a week after all three had moved to the adopters.

The judge said applications made for the younger children was clearly out of time but for A "fairness requires me to find that the application was made on 29 January.

“Although it was not issued until 9 February, this was in large part because of the Covid pandemic and the impact on working practices within the court. It would be deeply unfair on the mother to allow this to mean that the application was not made until 9 February.”

Lieven J said though that a local authority could place a child for adoption where, although an application for leave to revoke was made, leave had not yet been granted. “That is what has happened here,” she said. “The mother's application on 29 January can only have been an application for leave.”

This interpretation might be “harsh on the mother [but] accords with the Court of Appeal authorities which I am bound by.

"This is an issue of the court's jurisdiction, and not any judicial discretion, so ultimately the harshness or otherwise is not relevant.”

She said there was no question of the local authority placing the children with the prospective adopters to thwart the mother's rights or frustrate the statutory scheme.

The judge commended a social worker for the thoroughness of her witness statement, and her multiple attempts to keep the mother informed about what was happening. "The Mother had, for perfectly understandable reasons, equivocated in her attitude to the proposed adoption. The LA had advised her for weeks to seek legal advice. In fact, she made her application not just at the 11th hour, but beyond the 11th hour."

Turning to the role of Mackenzie Friend, Lieven J said: “It is extremely unfortunate that [the Mackenzie Friend], rather than chastising the local authority, had not made it entirely clear to the mother that if she did want to apply to revoke she had to do so before there was any question of the children moving to the prospective adopters.

“It is possible that this criticism of [Mackenzie Friend] is unfair, and I did not seek to inquire into the advice he gave. However, this case does highlight the problems of relying on a Mackenzie Friend rather than a solicitor who would be subject to professional codes of conduct, and assuming professional competence would have advised the mother that she must put her application in immediately.”

Mark Smulian

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