Landmark decision on Injunctions in Adoption cases

11th July 2011



Coventry City Council v. PGO and Others [2011] EWCA CIV 729


Foster parents may, in restricted circumstances, obtain an injunction preventing a local authority from placing a child with prospective adopters even though they might not then and there be entitled to issue an adoption application.


The Court of Appeal (Lord Neuberger M.R., Lord Wilson and Dame Janet Smith) so held in this seminal case, in which the Local Authority were represented by Harcourt’s Frances Judd QC and Mark Higgins.


The case involved two very young children for whom the foster carers had been caring since 2009.  Since the conclusion of the care proceedings in 2010 the Local authority had sought ideal prospective adopters.  A match was found and the process of introductions began and progressed, to the point that it was all but complete.


The day before the children were to move to the prospective adopters the foster carers applied for an injunction to restrain the Local authority from moving them, issuing a concurrent adoption application and a further application for leave to revoke the Placement Orders.  His Honour Judge Bellamy dismissed the adoption application as it could not yet be issued, but granted the injunction and imported the test for leave to apply to adopt under s.42(6) of the Adoption and Children Act 2002.  This was notwithstanding the foster carers’ failure to give three months’ notice of intention to adopt, as they must do, prior to issuing the application.


The Court of Appeal had to consider whether the judge had jurisdiction to grant the injunction and, if so, what test should be applied.  Lord Wilson, in giving the main judgment, held that the County Court had jurisdiction.  It did not matter that the foster parents were not, on the day they applied for the injunction, entitled there and then to issue proceedings.  That entitlement was sufficiently crystallised by the three-month period of notice of intention to adopt, which is prescribed by s.44 of the 2002 Act.  He held, moreover, that as s.144 only requires that notice be given in writing, the purported issue of proceedings which could not at that time be issued nonetheless constituted valid notice of intention to adopt.


However, in emphasising that this injunction is one of a public law nature, Lord Wilson said that the judge had erred in not applying an approach more akin to that of the Administrative Court in reaching his decision.  This is where the judgment acquires its real importance.  Lord Wilson held that a judge should begin by asking whether the decision of a local authority to remove was irrational, illegal, procedurally improper or in breach of Article 8 of the convention.  If not, there ends the matter.  If so, however, other factors should be considered including the promptness of the application, the status quo, the effect of the injunction and any other residual aspect of the welfare of the children: (see paragraph 37).


Applying this test, Lord Wilson held that His Honour had been wrong to grant the injunction on the facts.  He further emphasised that cases where injunctions were successfully obtained in this scenario would be infrequent.


The case also settles the question of the meaning of “placed for adoption” under the act.  The conclusion was that a child is placed for adoption with prospective adopters only once he begins living with them or, if he is already living with them as foster carers, once he begins living with them in their fresh capacity as prospective adopters: (see paragraph 44).  In so holding, Lord Wilson departed from Coulson J.’s decision in r (W) v. Brent London Borough Council, decided in the Administrative Court in 2010, which had given a more extended meaning to the concept of placement.

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