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April 2, 2024

In J, Re (Care Plan for Adoption) [2024] EWCA Civ 265 the Court of Appeal (LJJs Lewison, Baker and Andrews) allowed an appeal against a care order where the judge had approved a care plan for adoption after applying the criteria in the Children Act 1989, instead of  considering the checklist of factors in the Adoption and Children Act 2002 and following the principles established in case law when evaluating the proportionality of a plan for adoption.


The case concerned an appeal by a mother against a care order made in respect of her 9 month old son, J. At a final hearing, the local authority sought care orders in respect of J and his four older siblings, supported by the guardian. The local authority had filed care plans in respect of all five children, the plan being long-term foster care in respect of J’s siblings and for J ‘to achieve permanency through adoption’. The local authority had prepared but not filed an application for a placement order in respect of J and it later transpired that this was because it didn’t have his birth certificate and couldn’t therefore issue the application or upload it to the online portal. It’s worth noting here that it is best practice for local authorities to obtain birth certificates and include them in the care bundle, even in cases where adoption isn’t the plan. This addresses any potential issues in respect of the correct spelling of names and also clearly demonstrates, when considering who holds parental responsibility, whether an unmarried father is on a birth certificate or not. The judge made care orders in respect of all five children and gave directions for the listing of the placement order application in respect of J later that month.


In her judgment, the judge was clear that she was not deciding the placement order application in respect of J and therefore not considering his welfare throughout his life in reaching her decision. However, the judge did approve a care plan for J which made provision for permanence outside the family. The judge said that she would consider the factors set out in both the 1989 Act and the 2002 Act when the application for a placement order was heard.

The Appeal

The mother appealed on the basis that, inter alia, the judge had erred in making a final care order in circumstances where the court did not have a complete care plan before it, and had adopted the wrong approach in the welfare and proportionality evaluation which was conducted with reference to the factors in the 1989 Act only, and not on the basis of the heightened test for adoption that ‘nothing else will do’ as summarised by Baroness Hale in Re B (A Child) (Care Proceedings: Threshold Criteria) UKSC 33.


The mother’s appeal was allowed. The judge had been asked to make a care order on the basis of a care plan for adoption but had not applied the correct criteria or principles established in case law when reaching her decision. The Court of Appeal held that where, in an application for a care order the plan is for adoption, the presence of adoption in the range of realistic options determines that section 1 of the 2002 Act is the relevant provision, even if no application for a placement order is before the court.

Under section 1(1)(a) of the 1989 Act, when a court determines any question with respect to the upbringing of a child, the child’s welfare ‘shall be the court’s paramount consideration’. Section 1(1) and (2) of the 2002 Act provide that ‘whenever a court or adoption agency is coming to a decision relating to the adoption of a child … the paramount consideration of the court or adoption agency must be the child’s welfare throughout his life’.

Both the 1989 Act and the 2002 Act contain checklists of factors which the court must take into account when making the welfare evaluation. The checklist in section 1(4) of the 2002 Act identifies the factors to which the court must have regard under section 1(1) when ‘coming to a decision relating to the adoption of a child’. The 2002 Act checklist contains two additional factors not found in that of the 1989 Act which reflect the requirement under section 1(2) that the court’s paramount consideration is the child’s welfare throughout his life: the likely effect on the child (throughout his life) of having ceased to be a member of the original family and become an adopted person: section 1(4)(c), and the relationship which the child has with relatives, any person who is a prospective adopter with whom the child is placed, and with any other person in relation to whom the court or agency considers the relationship to be relevant, including the likelihood of such relationships continuing: section 1(4)(f).

Clearly, the judge at first instance was ‘coming to a decision relating to the adoption of a child’ and that necessitated a consideration of the checklist factors in the 2002 Act and the attendant principles established in case law.  The Court of Appeal held that in failing to conduct this evaluation, the judge had taken a ‘fundamentally mistaken approach’. An interim care order was substituted, and the care and placement order applications were directed to be listed together for a further hearing. Although the Court of Appeal recognised that the judge had to deal with an extremely heavy court list on the day in question and was anxious to bring proceedings to an end as soon as possible, this case might serve as a useful reminder that more haste, in the end, could mean less speed.

Finally, a point in respect of public funding; in this case the Court of Appeal clarified that non-means tested public funding is now available to a parent seeking to oppose a free-standing placement order application by virtue of an amendment to the Civil Legal Aid (Merits Criteria) Regulations 2013 recently introduced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Legal Aid: Family and Domestic Abuse) (Miscellaneous Amendments) Order 2023; the merits based test however, remains.

Monisha Khandker

April 2024