A, Re (Adoption – notice requirements) [2025] EWFC 99 (B)

The draft judgment was handed down remotely at 2.00 p.m. on 6 March 2025 by circulation to the parties or their representatives by e-mail. The approved judgment was handed down remotely in the parties’ absence at 10.00 a.m. on 17 March 2025.This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.[2025] EWFC 99 (B)Re A (Adoption – notice requirements)
IN THE FAMILY COURT SITTING AT READING
Date 17 March 2025
IN THE MATTER OF THE ADOPTION AND CHILDREN ACT 2002
AND IN THE MATTER OF A (a boy)
Before: HHJ Vincent
Between
Prospective adopterApplicant
Martin Blount, instructed by Rootes & Alliott solicitors for applicant prospective adopterThe mother represented herself at the hearingAlexandra Conroy-Harris, instructed by the Joint Legal Team for County A CouncilPatrick Paisley, instructed by Invicta Law for County B CouncilHearing Hearing date: 7 February 2025
Approved Judgment

HHJ Vincent:

[1]A was born [in 2012], in County A. He has significant health and development needs. He has [a rare chromosome condition and] a number of associated diagnoses which include cardiac anomalies, eye problems, and a hearing deficit. When he was a baby he had multi-cystic kidneys. He continues to have growth issues, global developmental delay and epilepsy. His condition is understood to be life limiting, but the advice of health professionals is understood that with appropriate feeding, care and management, children with his condition can live into adulthood.[2]A was made subject to an interim care order to County A Council on 19 March 2013. Following a long stay in hospital, he was discharged to the care of the applicant and her husband on 18 September 2013. They lived in County B and this is where the applicant still lives.[3]A final care order was made to County A Council on 1 November 2013. A remained in the care of the Applicant and her husband as his long-term foster carers.[4]In 2019 the Applicant and her husband applied to the Family Court in County B to become A’s special guardians. On 10 March 2020 the Court made Special Guardianship Orders in their favour. The special guardianship support plan was drawn up by County A Council. In accordance with that plan, County A Council has continued to provide support to A and the Applicant to date.[5]The applicant’s husband died in February 2023.[6]On 20 September 2024 the applicant applied to the Court for adoption order. She says that A is much loved and cherished, a happy little boy in her care. She considers that adoption will secure A’s placement with her, and provide him stability and long-term security.[7]A’s care plan provides for his mother to see him six times a year, for two hours at a time. She has three younger children at home with her, and it is not easy to travel to see A. At the time of the hearing she had not seen A for over a year. She told me that she would like to get contact up and running again.[8]The applicant told me that she had always tried to make A’s contact with his mother and other members of his birth family as good experience for all as was possible. She said she is more than willing to continue with contact.[9]At the hearing A’s mother told me that she has no issues with the care that the Applicant has given to her son for all these years. However, she told me that she never agreed with A being placed away from her care, and she does not support the application for an adoption order.[10]A’s father does not have parental responsibility for him. He has not seen A nor had any contact with him since his first birthday. At the outset of the hearing I determined that all reasonable efforts have now been made to inform him of the application and no further steps are required to be taken towards that aim.

Facts giving rise to issue for Court to determine

[11]Before the Court may consider making an adoption order, it must consider a report the appropriate local authority is required to submit to the Court following an investigation into the circumstances, including the suitability of the prospective adopters (section 44(5) and (6) the Adoption and Children Act 2002 (the “2002 Act”). The first part of the report sets out the child’s history, the events that led to him not living with his birth parents, and his particular health, educational and emotional needs. The second part of the document contains information about the prospective adopter and examines their suitability to meet the child’s needs throughout his life.[12]To ensure that the report is prepared by the local authority that is best placed to carry out the investigation into the child’s and prospective adopter’s circumstances, and that it is done within a reasonable timescale, the 2002 Act contains provisions about the identity of the appropriate local authority, and the timescales within which the local authority should be notified in advance of making application for an adoption order.[13]Compliance with these notice requirements is essential. Section 44(2) (relevant to non-agency adoptions as in this case) provides that an adoption order may not be made unless the proposed adopters have given notice to the appropriate local authority.[14]The appropriate local authority is either a prescribed local authority (section 44(9)(a)), or the local authority for the area in which, at the time of giving the notice of intention to adopt, the prospective adopter has their home (section 44(9)(b)).[15]On the facts of this case, neither of the local authorities would be a ‘prescribed local authority’ within the meaning of the (Local Authority (Adoption)(Miscellaneous Provisions) Regulations 2005, (regulation 3). So section 44(9)(b) of the 2002 Act applies. The applicant lives in County B, so County B Council is the appropriate local authority.[16]A has lived in County B with the applicant since he was just over a year old. However, County A Council has remained fully involved in his life, and has been the local authority to provide support to the applicant, first as A’s foster carer, later through the drawing up and implementing of a special guardianship support plan. County A Council has also been responsible for supporting A to maintain links with his birth family, including arranging for contact between A and his mother and siblings.[17]In the circumstances, it is not surprising that when she came to consider making her application to adopt, the applicant discussed this with her contacts at County A Council, and that it was them she told of her intention to make her application to the Court.[18]The relevant chain of events starts on 25 September 2023 when the applicant sent an email to County A Council informing them of her intention to apply for an adoption[19]On 13 December 2023 County A Council sent an email to County B Council informing it that:
‘County A has accepted the notice of intention to adopt A despite him living in County B due to their continued involvement with A. They have requested that their Regional Adoption Agency undertake the adoption assessment of [the applicant] in these circumstances. Please confirm that you do not have any objection to County A accepting this notice and undertaking the adoption assessment in these circumstances.’
[20]On 14 December 2023 County B Council replied:
‘I can confirm that County B Council has no objection to County A undertaking the assessment for A given you continue to support the family through SGO services. NFA will be taken by County B Council.’
[21]On 14 March 2024 the Applicant submitted the section 44 notice of intention to adopt form to [County A Council].[22]On 20 September 2024 the Applicant filed her application for an adoption order to the Family Court at Reading.[23]The application was initially rejected on the basis that notice had been given to the wrong local authority.[24]After some correspondence, the application was referred to me. I listed a hearing at which I invited both County A Council and County B Council to attend. The issues for the Court to resolve are as follows:(i) Has the applicant given adequate notice under section 44 of the Adoption and Children Act 2002?(ii) If not, can and should the Court remedy any defect?(iii) Can County A Council assume, or County B Council delegate, responsibility for investigating and submitting a report to the court?

Legal route to decision

[25]At the hearing I was ably assisted by Mr Blount for the applicant, Mr Paisley for County B Council and Ms Conroy Harris for County A Council. I am grateful to them all for their knowledgeable and considered contributions.[26]Having considered their written and oral submissions, and the case law to which I was referred, in particular the case of Re A (a child: adoption time limits s44(3)) [2020] EWHC 3296, I granted permission for the adoption application to proceed, giving short reasons. I now set out the process by which I reached that decision. Has the applicant given adequate notice under section 44 of the Adoption and Children Act 2002?[27]The notice was submitted within the right time limits (section 44(3) of the 2002 Act), and in the right format.[28]But section 44(9) is clear; the appropriate local authority is the one in which the applicant is living at the time the application is made.[29]The applicant’s email on 25 September 2023 was to County A Council. It cannot be read as notification to the appropriate local authority within the meaning of the 2002 Act.[30]The email on 13 December 2023 from County A Council to County B Council resulted in them knowing that the applicant had an intention to adopt A, but it would be a stretch to suggest that it could be taken as notifying County B Council of the application within the meaning of section 44:• It is not from the applicant;• It does not ‘notify’, rather it tells County B Council that County A Council has accepted notification;• County A Council assumes responsibility for the investigation and reporting requirement, whereas an essential purpose of notification is to enable the appropriate local authority to commence the work the statute requires of it.[31]Section 44(7) of the 2002 Act provides that if a local authority receives notice of intention to adopt in respect of a child whom they know was (immediately before the notice was given) looked after by another local authority, they must, not more than seven days after receipt of the notice, inform the other local authority that they have received the notice.[32]I was asked to infer that section 44(7) allows local authorities to make their own arrangements between themselves for the preparation of the Annex A report, as happened in this case. Further, that the emails between County A Council and County B Council on 13 and 14 December 2023 could be interpreted as County A Council notifying County B Council in accordance with section 44(7), and the two local authorities appropriately making arrangements for the preparation of the Annex A report.[33]I considered that would be stretching interpretation of section 44(7) too far:(i) The notice was not within the seven days prescribed by section 44(7);(ii) Section 44(7) specifically applies to children in the care of a local authority. Since 2020 A has been subject to a special guardianship order, he is not a looked after child within the meaning of section 44(7);(iii) Section 44(7) does not say that the two local authorities may then make their own arrangements in respect of investigation and preparation of the report;(iv) To imply such an interpretation would cut across the clear provisions of section 44, which sets out clearly which is the appropriate local authority, and the obligations conferred upon it.[34]For all these reasons I find that the applicant did not give adequate notice under section 44 of the 2002 Act. Could or should the Court allow the applicant to proceed with the application for an adoption despite the notice requirement not having been complied with?[35]In Re A (a child: adoption time limits s44(3) [2020] EWHC 3296, Keehan J allowed an application for adoption to proceed notwithstanding the notice had not been given within the time limits prescribed by section 44(3). He determined that this could be done in two ways:(i) the court should take a purposive approach to the construction of section 44(2) and permit the application to proceed; and(ii) in the alternative, section 3 of the Human Rights Act 1998 requires the Court to read down section 44(2) so as to give effect to the Applicant’s and the child’s Article 8 rights to family life.

Purposive approach to construction of section 44

[36]Keehan J referred to the line of authorities which have developed the idea of a purposive approach to construction, including the case of Dharmaraj v Hounslow London Borough Council [2011] EWCA Civ 312, where Toulson LJ said (at paragraph 25) that:
‘The modern approach towards a breach of a statutory procedural requirement is to consider the underlying purpose of the requirement and whether it follows from consideration of that legislative purpose that any departure from the precise letter of the statute, however minor, should amount to the document being regarded as a nullity.’
[37]And in Newbold & Others v Coal Authority [2013] EWCA Civ 584, Sir Stanley Burton said:
‘In all cases, one must first construe the statutory .. requirement in question. It may require strict compliance with a requirement as a condition of its validity … Against that, on its true construction a statutory requirement may be satisfied by what is referred to as adequate compliance. Finally, it may be that even non-compliance with a requirement is not fatal. In all such cases, it is necessary to consider the words of the statute … in the light of its subject matter, the background, the purpose of the requirement, if that is known or determined, and the actual or possible effect of non-compliance on the parties. We assume that Parliament in the case of legislation .. would have intended a sensible … result.’
[38]I am to consider the underlying purpose of the requirement to give notice to the local authority, and the actual or possible effect of non-compliance. I must then determine whether in all the circumstances, the breach of the notice requirements should prevent the application for an adoption order proceeding. Alternatively, whether it may be regarded as a technical breach that has not interfered with the true purpose of the legislation, and which should not prevent the court from making an adoption order, in the event that the court determines that is what A’s welfare requires.

Section 3 Human Rights Act 1998 (the 1998 Act)

[39]Section 3 of the Human Rights Act 1998 concerns interpretation of legislation and provides, ‘so far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.’[40]In Re A, Keehan J said (paragraph 34 onwards):34. The effect of section 3 is that when considering the interpretation of legislation the court must have regard to not just the intention of Parliament but it should seek to adopt any possible construction which is compatible with and upholds convention rights (see R v A [20001] UKHL 25 para 44 and Ghaidan v Godin-Mendoza [2004] UKHL 30 at paragraph 41.)35. Article 8 of the Convention includes a positive obligation which requires the State to ensure that de facto relationships are recognised and protected by law Marckx v Belgium 2 EHRR 330 para 31. It requires the court to provide protection of the right of children which are real and effective and not theoretical and illusory.

Discussion and decision

[41]The purpose of the provisions of section 44 is to ensure that the Court receives in a timely manner, a report from the local authority to advise it in respect of the application. Section 44 is designed to ensure that the local authority that is best placed to carry out the investigation and prepare a report for the Court is notified of the application in good time to carry out that work, and that the report submitted to the court is up to date.[42]Considering first the level of involvement of each local authority with A.[43]It is perhaps unusual for a local authority to remain involved with a child to the extent County A Council has with A long after he moved from their area.[44]County A Council initially supported A as a looked after child; the applicant was his foster carer employed by them. From March 2020 onwards County A Council have continued to support the applicant as A’s special guardian. Regulation 5(3) of the Special Guardianship Regulations 2005 allows them to provide services outside their area. The support has continued beyond the three years provided for in regulation 5, in recognition of the high level of specialist support required by A. County A Council has a good existing working relationship with the applicant.[45]County A Council is committed to continuing to provide that support while the applicant remains A’s special guardian. In the event that an adoption order were to be made, County A Council says it is committed to continuing to provide support pursuant to section 7 of the Adoption Support Services Regulations 2005 for as long as needed.[46]County A Council holds a significant body of information about A’s medical history, educational development and needs.[47]County A Council is best placed to speak with the birth mother now, and holds information about her past due to the care proceedings that took place in 2013 and its subsequent involvement with her.[48]By contrast, apart from living in the county, the applicant does not receive any specific support from County B Council for A, and does not have any connection with County B Council in respect of him.[49]County B Council is more than happy for County A to carry out the investigation and submit the Annex A report. While County B Council could undertake the work itself, I have been informed that non-agency applications are currently taking up to eighteen months to investigate. The social workers carrying out the work would be heavily dependent on County A Council to give them the information needed. County B Council’s involvement would be adding an unnecessary layer of work which would cost additional time and effort. It would be much better for the social worker who knows A best to prepare the report about him.[50]Both local authorities are clearly acting in good faith and with only the best intentions; to try and ensure that the best information is provided to the court as soon as is reasonably practicable so that the application may be properly considered.[51]There can be no question that County A Council is better placed to advise the Court in all the circumstances. I turn now to consider other factors at play.[52]Notice was given within the correct time limits. County A Council has carried out most of the necessary work to enable the Annex A report to be filed with the Court. References and DBS checks have been undertaken and medicals have taken place for both A and the applicant.[53]The failure to notify the correct local authority has not caused prejudice to others.[54]A’s mother might prefer the application not to have been made in the first place, but the questions about A’s future now having been raised, it is right that they are properly aired in the Court. It would be unhelpful and contrary to everyone’s interests for the question to be left hanging in the air, unresolved indefinitely.[55]It is in A’s welfare for decisions about his future to be considered by the Court with the best available information before it. Again, following Keehan J, A’s welfare clearly outweighs any public policy argument in favour of adhering to a strict statutory construction (see also Re A and B (Children: Surrogacy: Parental Orders: Time Limits) [2015] EWHC 911.[56]Refusing permission and requiring the applicant to formally notify County B Council would cause delay, and would not achieve a different result, as County B Council will inevitably seek to delegate its responsibilities to County A Council, for the very good reasons already discussed.

Conclusion

[57]In the particular circumstances of this application, and consistent with the approach adopted by Keehan J, and other judges of the Family Division before him, I am persuaded that a purposive construction of the legislation should allow the application to proceed, notwithstanding the failure to comply with section 44.[58]The legislation should be construed in a way that is consistent with its purpose; to enable the local authority which is best placed to carry out the investigation and prepare a report for the court to do that work.[59]Further or in the alternative, I am satisfied that pursuant to section 3 of the 1998 Act, both A’s and the applicant’s article 8 rights to a family life require me to read down the provisions of section 44 of the 2002 Act so that the application satisfies the statutory requirements.[60]A has lived with the applicant since he was ten months old. She has been his parent for the eleven and a half years since. Her family has been his family. Both A’s and the applicant’s Article 8 rights to a family life are engaged.[61]If I did not read down the provisions in this way, I would be depriving A and the applicant of the opportunity of the court reviewing the circumstances and considering whether or not his welfare now requires that an adoption order is made.[62]After appropriate investigation and having given A’s mother the opportunity to set out her position to the court, if it transpires that the court considers an adoption order is required to secure A’s welfare, it would be perverse and absurd for the court not to be able to make such an order, because notice of the application was given to County A Council, rather than County B Council at the outset.[63]For all these reasons, the application for an adoption order should be allowed to proceed.

Delegation of functions

[64]Having decided that in all the circumstances of this case the legislation can be read so as to provide that County A Council may stand in the position of the appropriate local authority, I may not need to go further.[65]However, for the avoidance of doubt, the applicant, County A Council and County B Council are all agreed that section 101 of the Local Government Act 1972 gives County B Council the power to delegate its functions to County A Council.[66]County B Council has at the hearing confirmed the position it took in the email of 14 December 2023; it is content for County A Council to assume responsibility for investigation and reporting to the Court in respect of the application for an adoption order.[67]There is no further role for County B Council in these proceedings.

Next steps

[68]I have made directions for the applicant to file a statement in support of her application, and for the mother to file a statement in response. County A Council shall file the Annex A report by 21 March 2025.[69]A children’s guardian is to be appointed for A.[70]An agreed, limited, list of documents from the previous sets of proceedings are to be disclosed into these proceedings.[71]At the next hearing the court will consider all the evidence filed. If the application can be concluded at that stage it will be, otherwise the court will make directions for listing a contested final hearing. HHJ Joanna Vincent Family Court, Reading Draft judgment sent: 3 March 2025 Approved judgment sent: 17 March 2025

order

‘After much discussion with yourself on behalf of [County A Council]and after much thought and discussion with our family and friends support network, we would like to go forward with the full adoption order for A It was always something [Applicant’s husband] and I wanted to do as we feel as you and [County A Council]do that it is in A’s best interests and would help further safeguard his future.’