In the recent case of C (A Child) a grandmother has been granted the right to appeal against a Placement Order which was made in respect of her grandson. Placement Orders can be made under section 21 of the Adoption and Children Act 2002; allowing a Local Authority to place a child with prospective adopters. The Court does not always have to consider the consent of the birth parents. Their consent can be disregarded if the parent cannot be found or is deemed incapable of giving consent or, the welfare of the child requires the consent to be disregarded.
In this recent case, the grandmother applied for a Special Guardianship Order (SGO) in respect of her grandson, this application was supported by the child’s parents. A Special Guardianship order is a more secure order for the child than a residence order as the parents cannot seek to discharge it without leave of the court. The parents’ parental responsibility is reduced in certain aspects, but it is not as final as an adoption order as their legal relationship with the child is maintained. During the proceedings the Local Authority, London Borough of Sutton, pushed for the child to be adopted and this was supported by his children’s guardian. The Judge ruled in favour of the Local Authority and thus a Placement Order was granted in respect of the child. The grandmother appealed against this decision.
The Supreme Court made it very clear that when granting a placement order the Courts are required to give significant consideration to human rights (in particular – Article 8 – ‘the right to family life’) and the necessity to permanently remove the child from the biological parents.
When considering C (A Child), Lord Justice McFarlane found that the decision made in the first instance had a number of flaws.
The first point of issue was that the Judge in the first instance had not properly clarified why her ruling, the granting of a Placement Order, was ‘necessary’. It has been made clear in Re B (A Child) that children must only be permanently removed from their biological parents when it is ‘necessary’ to do so. Lord Justice McFarlane failed to find any significant justification in the original Judge’s ruling surrounding this point.
Lord Justice McFarlane also felt that the Judge had failed to adequately explain why she felt it was in the child’s best interests to ignore the wishes of his biological parents, who were in support of the grandmother’s SGO application but not the Placement Order. He stated;
“‘¦ Parliament and case law stress that a judge must be satisfied that the parents’ consent to adoption should be dispensed with because the child’s welfare ‘requires’ that.’
Finally, it was considered that the Judge had not investigated the support that could be made available to the grandmother or properly weighed up the benefits of adoption against the ‘detriments’.
Lord Justice McFarlane has placed the Care and Placement Orders made in respect of the child on hold until the outcome of the full appeal has been heard. It was confirmed that due to the nature of the proceedings and the impact that delay may have on the child, the outcome of the appeal must be determined as soon as possible.
Farleys Solicitors has a leading team of family law solicitors who can advise you in relation to any aspect of the law in relation to children. For more information or to arrange to speak to one of our experienced family lawyers, please do not hesitate to contact us.