The President of the Family Division rules on the validity of existing placement and adoption orders, despite failure with adoption regulations.
The need for the President’s clarification starts with Re N (Children)  EWCA Civ 785- 21 May 2021
The mother of M (6 years) and T (13 years), were made subject to care orders in June 2020. The mother appealed to the Court of Appeal against the making of a placement order on the grounds that adoption was not the only option for her daughter M.
In these proceedings, it became clear that the Agency Decision Maker (ADM) had not had sight of the health report from the medical advisor or advice from the medical advisor that no report was required. This is a requirement further to Regulation 15 of the Adoption Agencies Regulations 2005 (AAR 2005). In addition, the child permanence report did not include a summary from the Agency Medical Advisor, which is a requirement by Regulation 17(1)(b) AAR 2005.
The mother’s appeal succeeded, and the local authority, Somerset County Council, agreed that the placement order could not stand. The local authority proposed to re present M’s case to the ADM with a fresh application for a placement order to the family court.
The court discharged the placement order.
Following the Re N case:
It became apparent that the breaches in Re N, rather than being a one off, were a possible systemic failure by Somerset County Council to adhere to the medical requirements of the AAR 2005 over the course of a number of years, involving adoption decisions made with respect to many children. As a result, Somerset County Council applied for a declaration under Part 18 of the Family Proceedings Rules 2010 that placement orders (PO) already made were lawful.
The local authority identified three cohorts of children:
- Children, where PO made but not placed for adoption.
- Children with PO placed for adoption but no adoption order not yet made.
- Children who have had adoption orders since 2016 (which is when the current process began, in that the ADM did not have advice from the medical advisor as required by the AAR 2005.)
In relation to cohort 1, 12 children were identified, the local authority made an application that the placement orders with respect to each child were lawfully made.
The judgement was handed down on 10 November 2021 [Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor  EWHC 3004 (Fam)  EWHC 3004 (Fam)]. The judge made declarations that for the 10 of the children in cohort 1, the placement orders were lawful, despite the breaches of the AAR 2005. The other two children were removed from cohort 1 due to a breakdown in their prospective adoptive placement.
Somerset County Council then made further applications in relation to cohort 2, children who were already placed in adoptive placements.
Following the publication of the Somerset judgement in November 2021, other local authorities began to review their own procedures in relation to the medical requirements as set out in the AAR 2005. A number of local authorities identified the same or similar breaches. This resulted in a risk that a significant number of children subject to placement or adoption orders could be potentially affected.
The President’s decision:
The President of the Family Division provided his decision on 13 April 2022, in
The President dismissed Somerset County Council’s applications and stated: “I have concluded that an application for a declaration as to the validity of existing placement orders or adoption orders is neither appropriate nor required. (para 6)
The President also clarified that no other local authorities would need to make applications if placement orders have been made. “I have determined that, despite such procedural errors that may have occurred in the preparation of reports and other steps prior to the adoption agency decision maker deciding that an application for a placement for adoption order should be made, or that a child should be placed with specific adopters, any existing placement orders or existing adoption orders made by a court are fully valid, unless and until they are set aside or revoked by a subsequent court order.” (para 60)
“For the reasons that I have given, and in the absence of some very significant evidence as to a child’s health, which was not otherwise known to the court, it is unlikely that an application to revoke a placement order will be justified solely on the basis that the medical elements of the AAR 2005 had been breached. Where an adoption has taken place, the established authorities indicate that it will only be in wholly exceptional circumstances that an existing adoption order will be set aside. It is difficult, if not impossible, to contemplate circumstances relating to a child’s health, which were not known to the court when the adoption order was made, being of sufficient weight to meet that very high test.” (para 61)
What happens now
- In light of these judgements, each local authority and adoption agency should review its procedures to determine whether they have been or are now operating in accordance with the requirements of the AAR 2005. That the medical assessments are undertaken by a registered doctor or the agency medical advisor confirms that any medical assessment undertaken is suitable and provides a medical summary in the child permanence report.
For Wales, the requirements are the same and are set out in the Adoption Agencies (Wales) Regulations 2005) as amended by the Adoption Agencies (Wales) (Amendment) Regulations 2020.
- If a breach has been identified in cases where a decision to apply for a placement order has been made, but the application has not yet been made, then the adoption agency should re present the updated child permanence report to the agency decision maker once the correct procedure is undertaken.
- If a breach has been identified, and the application for the placement order has been made, then the local authority should bring the breach to the notice of the court and then it will be for the court to make directions on how the matter should proceed. The court’s decision on how to proceed will take into account the child’s welfare, the need to avoid delay and the need for a fair trial process.
- Where a placement order or adoption order has been made, that order remains valid unless it is revoked.
- Where a placement order is made, the child can be placed with prospective adopters.
The adoption agency continues to be under a duty to comply with AAR 2005, therefore, if an earlier breach of the regulations has been identified, the child permanence report must be updated to include the required medical information before the child is matched with prospective adopters. If the child is already placed, then the child permanence report or the Annex A report must be updated before an adoption order can be made.
- In his judgment, the President identified that the apparent failure to abide by the regulations is not an issue that has been picked up on the OFSTED inspection.
Given the President’s expressed views in relation to OFSTED inspections, it may be that OFSTED, in their future inspection of the adoption agency, may wish to explore the process undertaken and compliance with the AAR regulations. It may be helpful to specifically record that the AAR medical requirements have been complied with and checked as part of the quality assurance process. Or, if they have not, what steps have been taken to remedy the breach.
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