The correct test for an adoption placement order and issues of legal aid eligibility

Family analysis: Tony Cranfield, a barrister at Bank House Chambers in Sheffield and counsel for the appellant, considers the decision in F (a child) and highlights that a placement order has farreaching consequences for the parents if it is made prematurely.

Original news
F (a child) [2013] EWCA Civ 1277, [2013] All ER (D) 295 (Oct) In an appeal against the granting of a placement order in respect of a troubled child, the Court of Appeal (Civil Division) held that there had been insufficient evidence on the facts of the case to establish that the child required adoption and therefore it was wrong to have made the order. What were the key issues in the case, and what was the important point of principle identified by the Court of Appeal? The important point of principle, on which permission to make a second appeal was granted, was whether the Court of Appeal authorities of Re T (children: placement order) [2008] 1 FCR 633 and Re P (children: parental consent) [2008] EWCA Civ 535 prevent a court from facilitating a care plan which envisages adoption becoming a viable option at some, as yet unascertained, future date if therapy is effective.

The key issues on the appeal were: whether a placement order can be made where the evidence does not show that a child is, broadly speaking, in a condition to be adopted and is ready to be adopted at the time of the hearing at which the order is sought whether the evidence before the court in this case satisfied the above test and whether the court had dealt with that issue at all when reaching its decision where there is a long-term aim for adoption, and there are real disadvantages in a local authority not having a placement order, is it a valid reason for making the order, because without it, it would be more difficult to encourage potential adopters to come forward, giving rise to undesirable delay To what extent is the judgment helpful in clarifying the law in relation to the making of placement orders? The judgment makes it quite clear that: the time at which a childs suitability for adoption is to be decided is at the date of the hearing when the placement order is sought, and where (as in this case) there is uncertainty as to whether adoption is in the childs best interests and thus, when the answer to that question depends on the outcome of therapy

or some other process, a placement order cannot be madethe court cannot facilitate the care plan by the making of a placement order in such circumstances As Black LJ said at para [53] of her judgment: the fact that the proper interpretation of the law has inconvenient consequences does not justify adjusting that interpretation. Accordingly, the decision in this case affirms and follows the decision in Re T. She held that the courts below were wrong to distinguish the facts of this case from Re T. At para [51] of her judgment, Black LJ said: This was not a Re P case because the uncertainty in this case was not about (or not only about) whether adopters would be found [as in Re P], it was about whether adoption would turn out to be right for L or whether long term foster placement may be the more appropriate option. Are there any grey areas or unresolved issues remaining that practitioners should watch out for? The decision left no grey areas or unresolved issues. Effectively this was a one point appeal, and that point was dealt with clearly and comprehensively. What are the implications of the case, and what should family lawyers keep in mind when advising clients? As stated above, the decision makes it quite plain, that although there may be inconvenient or unfortunate consequences, where the law is clear it must be followed. It also affirms and underlines the need to distinguish between: evidence which establishes that adoption is in a childs best interests, even though a good deal of investigation and preparation is needed before the child can be placed, and where it is recognised that there may be real difficulty in finding an adoptive placement with the possibility that such a placement may not be found at all, and evidence that a certain exercise or process must be gone through or work done with a child, before one can say whether adoption as opposed to long-term fostering, is in the childs best interests, even though the long-term aim or hope is, or may be, for adoption Where the situation is as in the first scenario a placement order can and should be made. Whereas if the evidence is as in the second scenario the law does not permit the making of a placement order. How can lawyers operate under the current funding regime? During the course of submissions, I referred to the fact that one of the difficulties most parents would find with a stand-alone placement order application would be funding the cost of their legal representation. My understanding was that there was a real risk that public funding may not be made available to contest such an application. At the time of the appeal there was some confusion amongst the profession, as to whether adoption would be in scope under the new legal aid provisions or whether such an application would be considered private law, and thus out of scope. It is now clear that an application for a placement order would be in scope under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, Sch 1. When an application for a placement order is made as part of the care proceedings, legal aid is automatically available regardless of income or capital (non-means/non-merits). This is why the parents in this case were able to oppose the making of the order at the final hearing in the family proceedings court.

However, if an application for a placement order is subsequently made by a local authority after the care proceedings have been concluded, then parents must still pass the means test and their financial circumstances must be assessed. If they have capital of more than 8,000 or if there disposable monthly income is more than 733 they will not be eligible for legal aid. Even where clients are able to satisfy the means test they must also pass the merits test, with the Legal Aid Agency giving consideration to the merits of the parents case when deciding whether or not to grant legal aid. This is usually the most difficult aspect and good drafting of the APP3 form is required. The parents would in effect need to show a significant change in circumstances in order to obtain legal aid to oppose the making of an order. In practice, most parents will be unable to establish a sufficient change in circumstances and therefore are unlikely to be granted legal aid to oppose the making of a placement order in a stand-alone application. They would therefore be unrepresented throughout those proceedings. If the application is for the revocation of a placement order, leave of the court is required, and for this a parent must demonstrate a change in circumstances to the court. Here again, it would be a struggle to persuade the Legal Aid Agency, let alone the court, of such a change and thus obtain funding for representation. On the facts of this particular case, if the placement order had been allowed to stand then, as Black LJ pointed out when considering the need to establish a change in circumstances, I am not entirely sure whether they would be able to do so, given that it could be said that uncertainty over the plans for L had existed from the outset. In the present case, however, the father would probably obtain legal aid. He would clearly satisfy the means test and should qualify on the grounds of merits, because of the matters raised before the Court of Appeal and highlighted by Black LJ in her judgment when allowing the appeal. Legal aid should be non-means/non-merits tested for a stand-alone placement order application, as it is when linked to the care proceedings. The judicial view is set out succinctly in the last sentence of Black LJs judgment: I would view that as wholly unacceptable in proceedings which may lead to the permanent severance of the relationship of parent and child. Any final comments or observations you wish to add? Although in many cases, the application for a placement order can and usually should be made at the same time as the application for a final care order on a plan for adoption, one must not lose sight of the fact that they remain quite distinct and separate applications, subject to different statutory schemes. It does not follow as a matter of course, that because the evidence justifies the making of a care order, the same evidence will suffice for the making of a placement order. Further, and importantly, the decision of Black LJ makes it plain that while it may be more convenient to interpret the law in a certain way, that does not justify a departure from a proper interpretation of the law. The issue must not be fudged. If made prematurely, a placement order has far-reaching consequences for the parents. Black LJ accepted that significant safeguards would be lost. The court would have lost its role in determining what was in the childs best interests there is no obligation on the local authority to bring the matter back before the court in the event of a dispute over the progress and effect of any therapy, and whether adoption remained the best plan for the child. The Guardians involvement would also have ceased with the making of the placement order. The only way the parents could become involved would be by an application for leave to revoke the placement order. Not only would they face difficulties in obtaining leave by

demonstrating a change in circumstances, but also in obtaining public funding for their representation. Tony Cranfield has enjoyed a varied practice, undertaking work in the criminal, civil and family jurisdictions of the courts. Today, he practises almost exclusively in matrimonial and family law and undertakes both public law cases and private law work. Tony wishes to thank Amy Bertram of Harthills Solicitors for her assistance with the response to the question relating to the practical consequences of the changes to public funding. Also counsel for the mother, Lance Dodgson, who shared with him prior to the first appeal, his thoughts on some of the consequences where a placement order has been made prematurely, which Tony developed and used in argument on both appeals. Interviewed by Kate Beaumont. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.