Introduction

The Court of Appeal of England and Wales delivered a significant judgment on June 15, 2021, in the case titled R (Care Proceedings Joinder of Foster Carers) [2021] EWCA Civ 875. This case revolves around the appropriateness and legality of joining foster carers as parties in care proceedings, especially when these carers express an intention to adopt the child in their care. The core issue examined was whether the trial judge erred in joining Mr. and Mrs. A, the foster carers, as parties to the proceedings concerning the child, R.

Summary of the Judgment

The judgment focused on the legal propriety of joining foster carers to care proceedings when they aspire to adopt the child. Mr. and Mrs. A had been caring for R, a child aged 14 months, since he was a few days old and expressed a desire to adopt him. The local authority sought a care order and later pursued placement orders under the Adoption and Children Act 2002, intending to place R with a different prospective adopter, Ms. G, a cousin of R's mother.

The trial judge joined Mr. and Mrs. A as parties to the care proceedings, allowing them to actively participate in the decision-making process regarding the child's placement and potential adoption. The local authority appealed this decision, arguing that such joinder was neither appropriate nor lawful, as it contravened established case law and statutory frameworks.

The Court of Appeal upheld the local authority's appeal, deeming the trial judge's decision to join the foster carers as parties to be both wrong in principle and in law. The appellate court emphasized that care proceedings are primarily concerned with the child's welfare and should not be forums for individual adoption disputes between prospective adopters and the local authority.

Analysis

Precedents Cited

The judgment extensively referenced several key cases and statutory provisions that shape the landscape of care and adoption proceedings:

• Re B (Care Proceedings: Appeal) [2013] UKSC 13: Established that adoption orders should be a last resort, emphasizing the preservation of family ties unless circumstances are exceptionally unfit.
• Re B-S [2013] EWCA Civ 1146: Reinforced the need for a robust analysis of all realistic options for a child, ensuring that the child's best interests remain paramount.
• Re T (A Child) (Early Permanence Placement) [2015] EWCA Civ 983: Asserted that foster carers should generally not be joined as parties in care proceedings.
• Re G (Minors) (Interim Care Order) [1993] 2 FLR 839: An early case where joinder of foster carers was contemplated but deemed exceptional.
• Re A; Coventry County Council v CC and A [2007] EWCA Civ 1383: Highlighted the inappropriateness of foster carers joining care proceedings for individual adoption merits.
• Re RP (A Child) (Foster Carer's Appeal) 2019 EWCA Civ 525: Allowed a foster carer to appeal as a non-party, emphasizing exceptional circumstances.
• Children Act 1989 & Adoption and Children Act 2002: Provided the statutory framework governing care and adoption proceedings, delineating responsibilities between courts and local authorities.

Legal Reasoning

The Court of Appeal delved into the statutory obligations and case law to assess the trial judge's decision. Key points in the legal reasoning included:

• Separation of Care and Adoption Proceedings: Emphasized that care proceedings are distinct from adoption processes. The former should focus on the child's immediate safety and welfare, while the latter concerns long-term permanency.
• Role of the Children's Guardian: Asserted that the guardian is responsible for scrutinizing the care plan and advocating for the child's best interests, without necessitating the formal participation of foster carers.
• Preservation of Family Ties: Reinforced the principle from Re B and related cases that family relationships should be preserved unless irreparably unfit.
• Statutory Framework Compliance: Highlighted that the foster carers' joinder was an attempt to circumvent the statutory process, as outlined in sections 22C, 31A, and 42 of the Children Act and Adoption and Children Act.
• Proportionality and Judicial Discretion: Acknowledged the trial judge's intention to expedite proceedings but determined that the approach was disproportionate and violated established legal principles.

Impact

This judgment has profound implications for future care and adoption proceedings:

• Clarification on Joinder: Reinforces the precedent that foster carers should not be joined as parties in care proceedings, maintaining a clear boundary between care and adoption processes.
• Procedural Integrity: Ensures that the statutory pathways for care orders and adoption orders are followed without interference from individual applications by foster carers.
• Protection of Confidentiality: Underscores the importance of maintaining confidentiality in adoption assessments, preventing potential conflicts of interest or breaches of trust.
• Guidance for Judges: Provides clear guidance on case management in complex cases where foster carers express an intention to adopt, highlighting the need to adhere to legal frameworks and avoid overstepping judicial discretion.
• Best Interests of the Child: Reiterates that all decisions must center around the child's welfare, ensuring that legal processes do not inadvertently disadvantage or complicate the child's placement and permanency.

Complex Concepts Simplified

Joinder of Parties

Joinder refers to the legal process of adding additional parties to existing proceedings. In the context of care proceedings, this would mean formally including foster carers or prospective adopters as participants in the legal case.

Care Proceedings vs. Adoption Proceedings

Care Proceedings are legal steps taken to safeguard and promote the welfare of children who are at risk of harm. These proceedings determine whether a child should be placed under the care of a local authority and outline their care arrangements.

Adoption Proceedings focus on permanently transferring parental responsibilities from the child's biological parents to adoptive parents. These are separate processes aimed at providing long-term stability and permanency for the child.

Section 31A Plan

A Section 31A plan is a comprehensive care plan prepared by the local authority outlining the future care arrangements for a child before a care order is made. It includes "permanence provisions" that detail long-term care options such as living with family members or adoption.

Placement Order

A Placement Order under the Adoption and Children Act 2002 authorizes the local authority to place a child with a prospective adopter. This order is a critical step towards establishing a permanent adoptive placement for the child.

Conclusion

The Court of Appeal's decision in R (Care Proceedings Joinder of Foster Carers) [2021] EWCA Civ 875 reaffirms the established legal principle that foster carers should not be formally joined as parties in care proceedings. This judgment upholds the integrity of the statutory frameworks governing care and adoption, ensuring that each process remains distinct and focused on the child's best interests.

By declining to join Mr. and Mrs. A as parties, the court prevented a potential conflict of interest and maintained the procedural separation necessary for fair and unbiased decision-making in the child's welfare and permanency arrangements. This decision serves as a crucial reference for future cases, emphasizing the importance of adhering to legal precedents and statutory obligations to protect the interests and welfare of children involved in such sensitive proceedings.