B v Birmingham City Council & Ors, Court of Appeal - Civil Division, April 28, 2004, [2004] 2 FCR 129,[2004] EWCA Civ 515,[2004] 3 WLR 1207,[2004] 2 FLR 337,[2004] Fam Law 560,[2005] Fam 105

Resolution Date:April 28, 2004
Issuing Organization:Civil Division
Actores:B v Birmingham City Council & Ors

Draft 11 May 2004 10:09 Page 2

Neutral Citation Number: [2004] EWCA Civ 515

Case No: B1/2003/2570 & 2570A






BMO1A 09526/9528/9529/9530

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 28/04/2004

Before :





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Between :

Mr A McFarlane QC & Miss A Chatterjee (instructed by Challinors Lyon & Clark) for the Applicant/Appellant

Mr R McCarthy QC& Miss M Corbett (instructed by Birmingham CC Legal Services) for the Local Authority

Mr A Hayden QC & Miss L Cavanagh (instructed by Fish & Co.,) for the 2nd Respondent

Mr M Keehan QC (instructed by Blair Allison) for the Guardian

Mr A Neaves (instructed by Anthony Collins & Co.,) for Mr & Mrs A

Hearing dates : 10th March 2004

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Lord Justice Thorpe :

  1. Mr Andrew McFarlane QC applies on behalf of Mrs B for permission to appeal an order of His Honour Judge Wood QC (now, of course, Roderick Wood J) sitting as a Deputy High Court Judge in this building on the 21st November 2003. Mr Anthony Hayden QC for the father seeks the same permission and an extension of time. Mr Roger McCarthy QC for the respondent local authority seeks permission to file a Respondent's Notice. Mr McFarlane's application was ordered to be listed with Appeal to follow if permission granted. Mr Hayden's application was subsequently ordered to be listed together with Mr McFarlane's, those orders being made on the 26th January and the 4th March 2004 respectively. Since the questions raised by these applications are fundamental and difficult, the hearing on 10th March was effectively treated as the hearing of an Appeal. Submissions of the highest quality were received from those Counsel as well as from Mr Michael Keehan QC for the Guardian ad litem.

    The Facts

  2. In barest outline, His Honour Judge Hamilton sitting in the Birmingham County Court made care orders in respect of four of the children of the parents, S born on the 31st December 1992, C born on the 14th November 1995, D born on the 11th June 1996, and T born on 30th July 1998. On the 20th December 2001 Judge Hamilton made orders freeing all four children for adoption. In the course of his reserved judgment Judge Hamilton carefully chronicled the disgraceful behaviour of the parents, during the course of which they traced their children in care and abducted them from school, inflicting violent injury on a foster carer. The parents have been punished for their crimes but it would be hard to find in the reports a public law case in which parents have resorted to such extremes of lawlessness and selfishness in attacking the intervention of a local authority and in reacting to child protection measures imposed by the Court.

  3. Accordingly, in concluding that the parents were unreasonably withholding their consent to the freeing applications, Judge Hamilton observed:-

    ``The evidence shows that Mr and Mrs B have already made mayhem of the lives of their elder children and are likely to make mayhem of the lives of all of their children if they are given the opportunity to do so.''

  4. In contemplating the consequences of the freeing orders Judge Hamilton stated:

    ``It is sometimes argued that a freeing order exposes a child to a dangerous state of limbo, in which drift and delay can occur, because it extinguishes all other parental responsibility and leaves the local authority with sole parental responsibility. In this case, however, I see that sole parental responsibility as a positive advantage for these children. Mr and Mrs B are dedicated to exercising their parental responsibility (and the rights they claim with it) to meet their own needs without regard to the significant harm which they do or may do to their children. In these circumstances, the sooner their role in the lives of their children is terminated, the better for the sake of the children's welfare.''

  5. Given the history of past pursuit and abduction it is not surprising that the local authority in seeking the freeing orders, contemplated a placement out of the jurisdiction. Indeed, one of the witnesses for the local authority referred to that option during the course of her evidence, and Mr Keehan tells us, on instructions from the guardian, that that plan was flagged up by counsel for the local submissions in her submissions. However, there is no doubt that it was the local authority's proposal and intention to place all four children together.

  6. Subsequent to the December hearing the local authority duly identified prospective adopters in another jurisdiction, whom we refer to as Mr and Mrs A. On the 17th June 2002 the Adoption Panel approved the placement of all four children out of the jurisdiction with Mr and Mrs A. On the 3rd July the local authority wrote to Judge Hamilton's clerk asking for an urgent listing of an application for permission to place the children out of the jurisdiction. The application in form C1, being an application under the Children Act 1989, was filed on the 4th July. The papers were put before Judge Hamilton and he perceived that the application lodged under Schedule 2, paragraph 19(1) of the Children Act 1989 was misconceived, since the children were not children in care but children freed for adoption. Judge Hamilton went to considerable trouble in preparing an erudite note drawing the local authority's attention to relevant provisions of the Adoption Act 1976 and of the Adoption Rules. He pointed out that Section 56 created a criminal offence in placing a child outside the United Kingdom with a view to adoption unless authority had previously been obtained from the Court under Section 55. Judge Hamilton directed that his typed note should be sent to the local authority's solicitor:

    ``On the strict understanding that:

    i) I do not guarantee its accuracy or applicability and

    ii) she is free either to challenge its accuracy or its applicability.''

  7. Seemingly the local authority's reaction was simply to consider its position internally and to advise itself that the provisions of Sections 55 and 56 did not apply to a local authority acting as an adoption agency after the making of a freeing order, and that, accordingly, the placement with Mr and Mrs A could be implemented without further reference to the Court.

  8. The placement was made on the 13th August 2002. Sadly it was only partially successful. S and D were removed on the 26th November 2002. In December 2002 D was placed with foster parents in the Birmingham area. In February 2003 S was also placed with foster carers in the Birmingham area. That left C and T with Mr and Mrs A, where they remain to this day. With skilful advocacy Mr McFarlane says that on the 26th of November the golden aim of the care plan (to keep the four together) was sacrificed. Thereafter, the local authority has abandoned the silver aim (to maintain long-term direct contact between the children if separately placed.)

  9. Although the effect of the range of orders made by Judge Hamilton was to terminate Mr and Mrs B's contact with the four children as well as their parental responsibility for the four children, the Adoption Act 1976 leaves them with what Mr McFarlane describes as ``a rump of remaining rights''. By that he means the parents' right to notification under Section 19 of the Adoption Act 1976 and their right to apply under Section 20 for the revocation of the freeing orders in certain defined events. That enables me to summarise the two principal questions of law raised by this appeal:-

    i) Was the placement with Mr and Mrs A on the 13th August 2002 an unlawful placement in breach of Section 56 of the Act?

    ii) If yes, are the circumstances defined by Section 20(i) of the Act satisfied to enable Mr and Mrs B to apply for the discharge of the freeing orders of 20th December 2001?

  10. During the course of the appeal we were informed by Mr McCarthy that notification under Section 19 of the Act was prepared by the local authority and sent to the parents on the 19th August 2002, some six days after the children arrived with Mr and Mrs A.

  11. On the 13th February 2003 the parents issued applications in the Birmingham County Court seeking the revocation of the orders of 21st December 2001 in reliance on Section 20 of the Act. The applications stated:-

    · ``The making of the order was made whilst the parents were in custody. The parents are now at home, and have a stable relationship and home.

    · The parents still believe the children have a close attachment to their natural parents and extended family network.

    · No information has been forthcoming from the local authority, and the parents are concerned about the well-being of the children.''

  12. In the end these applications were listed before His Honour Judge Wood and dismissed by him on 21st November 2003. In summary he concluded that Sections 55 and 56 of the Act did not apply to a local authority and that the placement of the children had been lawful under the terms of Schedule 2, paragraph 19(2) of the Children Act 1989. Accordingly he concluded that Mr and Mrs B had no right of application under Section 20(1) of the Adoption Act. However a different result was inevitable in relation to D and S, given the local authority had abandoned all attempts to place them for adoption and given that they are within the jurisdiction in foster care. Accordingly he directed that the discharge applications in relation to D and S should be listed before a Judge of the Division for trial. We were informed that that trial has been fixed for June 2004.

  13. Despite the outcome on the 21st November Mr and Mrs A applied for an order under Section 55 of the Adoption Act 1976 giving them parental responsibility for C and T. The application was granted by Judge...

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