Case No. FD21P00367

37.A placement for adoption order may be set aside on appeal. Any appeal would be against the decision of a lower court to make the placement order; it is not an appeal against the applicant local authority’s decision to make the application for that order. For the reasons that I have already explained, the challenge on appeal could not be on the basis that the court’s order was void as a result of a breach of the AAR 2005 by the local authority. At its highest, any breach would render the court’s order voidable and subject to bespoke scrutiny on the individual facts of each case (Re F (An Infant)). Any prospective appellant would not only have to obtain permission to appeal, but also permission to appeal out of time. Permission to appeal may only be given where [Civil Procedure Rules 1998, r 52.6(1)]:a)the court considers that the appeal would have a real prospect of success; or b)there is some other compelling reason for the appeal to be heard.An application for an extension of time to appeal would be considered under CPR 1998, r 3.9.38.In the context of the present proceedings, it is difficult to contemplate a case where circumstances surrounding a child’s health are so significant as to call into question the making of a placement order, which was otherwise justified, yet those health issues were not otherwise known of, and before the court, notwithstanding a local authority’s failure to comply with the AAR 2005 requirements.39.Separately, provision is made by ACA 2002, s 24 for the court to revoke a placement order. A person, other than the child or the relevant local authority, may only apply to revoke a placement order if granted leave to do so under s 24(2)(a) and if the child is not currently placed for adoption by the authority. Leave to apply to revoke will only be granted if there has been a ‘change of circumstances’ [s 24(3)] and the court considers that leave should be granted. In determining this latter question, the Court of Appeal in M v Warwickshire County Council [2007] EWCA Civ 1084 established that regard must be had to the prospects of success and to the welfare of the child, which will not be the paramount consideration in determining the leave application. The authority of M v Warwickshire County Court on this point was expressly accepted by the Court of Appeal in Re C (Revocation of Placement Orders) [2020] EWCA Civ 1598 (at paragraph 14). Where, later in the lead judgment in Re C, Baker LJ (paragraphs 16 to 24) appears to endorse the child’s welfare as the paramount consideration in determining an application for leave to apply to revoke a placement order, the assumption must be that the court in Re C was nevertheless not intending to reverse its previous decision in Re M and welfare therefore remains an important factor, but not the paramount consideration, in such cases.40.Again, it is difficult to contemplate a case where concern over a child’s health was sufficiently serious to justify reopening the placement order determination by permitting an application for revocation to proceed, yet the health issue was unknown to the court at the time that the placement order was made. In such a case, on its own facts, if the health issue becomes apparent and the child has not yet been placed for adoption, it will be open to a parent or those acting for the child to apply for leave to apply to revoke, or the local authority may do so of its own accord without leave.