In another article that aims to provide information for prospective adopters Emily Boardman sets out the challenges for a family when safeguarding concerns arise prior to the making of the adoption order.
This article is about the removal of a child who has been placed with prospective adopters (PAs) before an adoption order is made. I deal first with temporary removal and then with permanent removal. This is not an article about cases where the prospective adopters have requested removal.
I should say at the start of this article that not all lawyers agree on the correct process that a LA should follow in these situations, and that disagreement has been the central issue in a number of cases I have done.
This is the kind of situation I am talking about: a safeguarding referral is made about a child placed with PAs and the LA decides to remove the child while they investigate.
Clearly the referral has to be serious (in my experience it usually relates to an alleged injury to a child) and it is right that a LA investigates that, but where should the child live meanwhile, what should happen to the adoption application (if one has been made) and should the LA make a separate application to court?
The thorny issue of consent
A LA may ask the PAs if they consent (or agree) to the child living somewhere else while they investigate. The social worker might make it sound like that could be very short term, overnight say; or make it sound like they really have no say in it, so it’s just a question of involving them in the decision.
It’s often not short term. The PAs do have a say in it, and it is a decision on which they really should take legal advice.
The other issue about consent is that these situations are often being dealt with as an emergency so consent might be sought from one of the PAs in a situation where they are shocked by what’s going on and they are unsupported.
Perhaps the child has just had a medical examination and a doctor has advised the LA that the injury might be ‘non-accidental’ – these conversations will follow on very shortly after that. The police might be present, together with social workers the PAs don’t know; the conversation might happen in a car or a hospital hallway. It may not feel significant. But it is.
[There are circumstances in which the police can remove a child to protect them but this article is not about that.]
Even if the PAs do agree to removal (or temporary accommodation elsewhere) it is important to consider various aspects of that agreement – would a family placement be possible (with the PAs’ parents or other family members that the children know well) or could family members move in with the PAs and children to supervise their care, to reassure the LA? If not, how much contact time will the children have with the PAs, and who will arrange and supervise it?
Remember these are all arrangements for the interim – while the LA investigate the safeguarding referral.
Removal without consent
It is my view that if the LA wish to remove the child while they investigate the allegation, without the consent of the PAs, they must make an application to court. This is what other lawyers do not agree with (especially LA lawyers) and of course the right process might depend on the specific facts of the case.
Once a child is placed with prospective adopters in an adoptive placement the PAs have parental responsibility for that child. It can be limited by the LA (for example they can say that the PAs cannot travel abroad until the adoption order is made) but it cannot be removed by the LA unilaterally.
Without the approval of the court (or consent of the PAs) any LA removing a child in these circumstances is doing so illegally and they can be challenged.
If a LA removes a child illegally it is all well and good writing to them to tell them this is what they have done, but what can be done to get the child back?
In the first instance I would tell the LA that I believe they need the court to approve removal and ask them to make an application to court. But what if they won’t?
The onus falls on the PAs to take steps to get the court involved. If an adoption application has already been made, we can ask the court to list a hearing, within the adoption proceedings, to consider removal, but this is not usually sufficient.
I would apply for an injunction that requires the LA to return the child and prevents them from removing the child again. This needs to be dealt with by a High Court judge (and the adoption proceedings are probably not in the High Court) and I would also seek damages and costs from the LA.
Why costs? Because one of the most fundamental issues for prospective adopters in this situation is that they will have to find the money for lawyers in order to make these applications, and not everyone can.
[There may be circumstances in which PAs are eligible for legal aid to make this application but it will always be means tested. See our article here about eligibility for legal aid.]
Its likely that the Judge will feel that the allegation that prompted removal needs some investigating and one of the questions for the court at that early stage is what is the right format for the proceedings – should the investigation be dealt with within the adoption proceedings, or should it be done within care proceedings? I would say it should be within care proceedings.
The very significant benefit of care proceedings is that PAs would get legal aid. There are down sides and complexities to the case being dealt with in care proceedings but those are for another article.
If the LA decide that they wish to remove a child permanently from prospective adopters the law is much clearer. They must give the PAs notice of their intention to remove and then the PAs should return the child within seven days.
If the PAs do not agree to return the child they need legal advice within those seven days.
Whether the proposed removal is in response to an emergency or it has been the subject of discussion with the PAs for some time, it will probably be a very difficult time for the family. Whatever else has gone wrong the child has been placed with what s/he has been told is their ‘forever family’ so moving them again is likely to be very traumatic.
A child, and the PAs, should be well supported through this process and provided with therapeutic support as soon as possible.
Emily Boardman is a family solicitor, founding partner at Boardman, Hawkins & Osborne LLP. She specialises in representing birth families in complex care proceedings and prospective adopters in adoption applications. For more information visit www.bholegal.co.uk