Care proceedings - local authority seeking care order and order freeing for adoption - applications to be treated as separate and distinct

In re M (A Minor)(Care Order: Simultaneous Application for Freeing Order) [2003] EWCA Civ 1874: CA (Lords Justice Ward, Mantell and Carnwath): 18 December 2003

M, born in 2002, had lived with his foster parents since he was 17 days old.

The parents, separated and both suffering from fragile health, were unable to care for him.

The local authority's care plan for the child was approved by an adoption panel and care and freeing for adoption proceedings were commenced.

At the hearing the judge granted the father an adjournment for an assessment to be made of the fitness of a family member to assume responsibility for the child.

Both the child's guardian and the local authority appealed.

Oliver Wraight (instructed by Willson Letchford & Co, Nuneaton) for the child's guardian; David Hershman QC and Edward Kirkwood (instructed by Legal Services, Warwickshire County Council) for the local authority; Pamela Scriven QC and Sarah Gibbons (instructed by Jackson West, Stratford-upon-Avon) for the father; the mother did not appear and was not represented.

Held, allowing the appeal, that a judge dealing at a single hearing with applications for a care order and for a freeing order under section18 of the Adoption Act 1976 should treat them as separate and distinct applications requiring individual assessment; that common sense required the care issues be determined first and only if an order was made should the freeing application then be considered; that the judge, allowing the adoption issue to assume priority over the care issues, had erred in principle; and that the proper course was for the court to order M to be committed to the local authority's care and to be freed for adoption.