Emily Boardman

Appeal, revoke or discharge? How to get your child back after care proceedings conclude.

Boardman, Hawkins & Osborne LLP

One of the most common enquiries we get is from birth parents who want to challenge a decision to remove their child permanently. They phrase it in many different ways but in essence they want to know how to stop their child being adopted or placed in long-term foster care.

So, what do we need to know to begin with?

Most people calling up have had care proceedings that have ended. We want to know when they ended and what orders were made. That will tell us whether we are looking at an appeal (generally within 21 days of the orders being made) or another application.

Most people use the word appeal but often that would not be the best way to go about it, for them.

An appeal

An appeal has to be done very quickly after a final decision is made and has to be done on the basis that the Judge got something wrong – for example, they got the law wrong, they didn’t balance the evidence correctly or they made a decision so weird that other Judges wouldn’t agree.

In order to get legal aid for an appeal a lawyer has to support your appeal and usually it is quickest if that is the lawyer that conducted the final hearing.

Many people calling up about an appeal no longer want to use the same lawyers so that can delay matters. It is very unlikely that we can get the papers, commit enough time to understanding them from scratch, write an advice supporting your appeal and get you legal aid within 21 days.

An application to discharge a care order or revoke a placement order

Many people are actually asking about an application to discharge final orders because there has been a change in their circumstances. The law requires a significant change in circumstances for birth parents to apply to discharge or revoke final orders made in care proceedings.

The legal aid for these applications is means and merits tested so we have to be able to tell the Legal Aid Agency that the application is justified – just to get legal aid. We will need to know what has changed.

If we did not do the original proceedings we will need to see the final orders, the care plans and the Judgment (if there was one) at the very least. We will ask you to tell us, in detail, what has changed.

If an expert recommended a certain period of therapy – you should have completed that. If the Judgment found you were addicted to drugs or alcohol – you should have been abstinent for 12 months or more. If you were a victim of domestic abuse – you must complete the Freedom Programme or other similar course. If your basic parenting was lacking – you need to have completed parenting courses….. and so on.

Go through the Judgment (or the threshold if there isn’t a Judgment) and tick off the criticisms – work out which changes you have evidence for and collect together the evidence.

Can you oppose, appeal or revoke an adoption order?

Most people who enquire about stopping an adoption actually want to make an application to prevent a placement with prospective adopters.

A placement order is made, usually, at the end of care proceedings alongside a care order, and it gives a Local Authority permission to place a child with prospective adopters. For some children that process is quick, for some it is not.

Once a child is with prospective adopters a birth parent cannot apply to appeal against or revoke the placement order so timing can be absolutely critical.

However, that’s not quite the end of the matter.

After a child has been with prospective adopters for a while they will apply for an adoption order. When that application is made birth parents with parental responsibility should be informed. They have an opportunity to ask the court to consider that they have made sufficient changes to prevent the adoption order being made.

Birth parents do not have an automatic right to oppose an adoption order – they have to ask permission to do so from the Judge. That permission is not often granted because the Judge has to first consider what changes have occurred.

The other problem with asking for permission to oppose is how to practically go about it. Usually a Judge will ask for a statement setting out the changes that the birth parents have made and what they want. I do not think it needs to be a lawyer who prepares that statement so agencies can help birth parents do it too. Is not easy to find lawyers to help with these statements or applications as legal aid is not straightforward (like it is in care proceedings).

If a Judge then gives a birth parent permission to oppose the application for an adoption order they should be able to make an application for means and merits tested legal aid.

Emily Boardman
Boardman, Hawkins & Osborne LLP

November 2022


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