Court of Appeal grants mother leave to apply to revoke placement orders

An unnamed mother should be granted leave to apply to revoke the placement orders made for her two children, the Court of Appeal has said.

In a case involving an unnamed London borough, Lord Justice Baker said in D, Re (Leave to Apply to Revoke Placement Orders) [2022] EWCA Civ 299: “The change in the mother's circumstances is sufficient to open the door to the exercise of the discretion”, compared with what was described at the original court hearing.

The mother had been refused leave in January under s.24(2)(a) of the Adoption and Children Act 2002 to apply to revoke the placement orders made in February 2021 authorising the local authority to place her two children for adoption. The children are a girl aged 6 and a boy aged 4.

In January 2019, the local authority instigated care proceedings because of domestic abuse in the parents' relationship and the mother's excessive consumption of alcohol.

Following a psychiatric assessment the children, who had been removed under interim care orders, were returned to their mother.

Despite assurances the mother resumed drinking and in October 2019 tested positive for chronic alcohol use, and in January 2020 she was found heavily intoxicated on a park bench with the children with her “in a state of considerable distress and neglect”.

In November 2020, District Judge Jabbitt found that the threshold conditions under s.31 of the Children Act 1989 were satisfied in that the children had suffered neglect and emotional harm and had been at risk of suffering physical harm due to the mother's alcohol abuse and said: “I am firmly of the view that these children should have the opportunity to develop over time a significant and deep attachment with adoptive parents, free from the label of cared for children.”

The mother in October 2021 applied to discharge the care order and revoke the placement order and produced evidence that she had remained abstinent from alcohol since October 2020. She also produced evidence that she had attended cognitive behaviour therapy and had undergone several courses about autism to better understand her son’s condition.

She concluded: “I am not the person I was at the beginning of the last set of care proceedings. I have focused on looking after myself and making sure that I am [the] best version of myself for my children.”

In a statement filed on behalf of the local authority, the children's social worker applauded the mother’s efforts, but noted that she struggled to maintain abstinence and engage with interventions and support over the long term, and the local authority remained concerned that the children would be at risk of future harm if returned to her care.

Baker LJ, with whom Lord Justice Moylan and Lady Justice Whipple agreed, said: “This court is always cautious about interfering with the discretionary decisions of judges at first instance. In this case, the recorder approached his task carefully and with the correct legal principles in mind. Nevertheless, I have come to the conclusion that his reasoning on both limbs of the test was flawed.”

He said the recorder had adopted DJ Jabbitt’s conclusion that the “weight of evidence is that [the mother] will return to using alcohol, particularly when not under scrutiny, and when subject to stress” which was based on his assessment of the totality of the evidence at that stage.

Baker LJ said: “But the validity of that assessment did not necessarily continue indefinitely.

“On the contrary, the evidence of [a doctor] set out in his report but not cited in DJ Jabbitt's judgment, was that the longer the mother remained abstinent, the better her chances of staying so in future and that it would be reasonable to assess her prospects of sustained progress after six to twelve months of abstinence.”

A conclusion that "the weight of professional opinion was that she cannot provide safe care for her children" again did not consider that this might not continue indefinitely.

Mark Smulian