I had always thought that, once the court had awarded a placement order to a local authority, that was effectively game over so far as proceedings were concerned. Quite wrong, apparently, as is made clear in Coventry CC v PGO  EWCA Civ 729.
This is a case where the children were living with foster parents in the aftermath of a placement order having been made, and the local authority was planning to place the children for adoption. The local authority had initially asked the foster parents if they wanted to adopt the children, but they had declined. It was only when the local authority were in the process of placing the children with their proposed adopters that the foster parents had a change of heart. They decided to apply for an adoption order themselves, as well as a revocation of the local authority’s placement order. However they needed to apply for leave to make both such applications and prior to that, they applied for an interim injunction preventing the local authority from removing the children from their care until their application for leave could be heard.
In his judgement, Lord Justice Wilson highlights the fact that under rules 20.2 and 20.3 of the Family Procedure Rules 2010, an order for an injunction can be made at any time, including before proceedings are started. However the court can only grant an injunction prior to an application being made if the matter is urgent, or if it is desirable to do so in the interests of justice.
Lord Wilson also laid down proposed guidelines for the court when considering whether to grant the kind of application being made by the foster parents.
Firstly a judge should put an initial question to himself:
a) Is there a real prospect of proving that the local authority placing the child for adoption is irrational, disproportionate or otherwise unlawful, or is in breach of the applicant’s rights, or the adopter’s, or those of the children under Article 8 ECHR?
If the answer is negative, then the judge should refuse to grant the injunction. If the answer is affirmative, then the court should consider the following further questions:
b) Has the applicant brought the proceedings with reasonable promptness, and if not, how does their delay affect whether an injunction would now serve the interests of the children?
c) Although in form an application only for an interim injunction, might any injunction be likely to continue (or be continued) for a substantial period of time and, if so, with what likely consequences?
d) Might any injunction jeopardise the candidacy of the proposed adopters?
e) Would the consequences of a refusal of an injunction be to disable the foster parents from applying to adopt the children?
f) Is the status quo in the present case that the children are living with the foster parents or is it that they are virtually at the end of an agreed programme of removal into the home of the adopters and so would an injunction therefore more properly be regarded as preserving, or as disrupting, the status quo?
g) Does the issue of whether to grant the injunction affect any aspect of the welfare of the children not addressed by answers to the above questions?
The case appears specific to foster parents who wish to adopt the children they are caring for, and Lord Justice Wilson, at the end of his judgment, recommends that a copy of the judgment be sent to the Children in Safeguarding Proceedings committee of the Family Justice Council, so that they can consider whether local authorities should be suggesting to foster parents, particularly short-term foster parents, the possibility that they might become the eventual adopters of the children they are caring for. However the principles contained within the judgment could equally apply to any potential 11th-hour carers for children who are subjects of a placement order, and who are as yet to be placed with adopters.
A subsidiary issue that the judgment addressed was at what stage was a child deemed to have been ‘placed’ for adoption? Was it when the adoption agency ratified the match between a child and prospective adopters and when thereafter he met them, or was he ‘placed’ for adoption only when he subsequently began to live with them? Lord Justice Wilson concluded it was the latter, thus overruling the decision of J Coulson in R(W) v Brent LBC (2010) 1 FLR 1914.