Child Team E-Bulletin

Somerset County Council v NHS Somerset Clinical Commissioning Group Respondent And Others [2022] EWFC 31

This is the second instalment of decisions in relation to failings on behalf of the Local Authority in Somerset in respect of adoption medicals. Whilst the LA in question was initially Somerset, the issues were not considered limited to their working practices.

To put the second stage of this case into context, it’s necessary to consider again the first. That case arose out of an appeal before Jackson LJ in the case of Re N Children 2021 EWCA Civ 785. This was an appeal against a placement order made a few months earlier. The LA did not oppose that appeal, though not on the grounds sought, but on the basis that it had been identified that, in that case, the child permanence report was not compliant with the appropriate regulations as it was apparent that no CP medical had been obtained and no report had been provided as part of the CPR. This brought into question the validity of making a placement order in that, and indeed, any other cases where the same procedure had been followed. Following this, it came to light that there may be systemic failings in the way that Somerset CC had historically dealt with such applications. In Somerset I as it is becoming known, the council sought declarations under Part 18 FPR to confirm that either their internal procedures were valid, or that the orders already made were lawful.

What was the problem?

As a result of ACA 2002, there are two ways through which a child can be placed for adoption: a) parental consent is given or b) a placement order is made. It is this second course with which we are concerned.

Section 22 of the Act sets out the circumstances in which a LA can make an application for a placement order, acting in their capacity as an adoption agency. This section is governed by Part 14.11 of FPR 2010 and PD14C. Rules 14.11 and 14.12 specify the types of reports which the LA must file before a placement order could be made. What the reports must cover is set out in PD 14C and D respectively. These PDs bring into effect the Adoption Agencies Regulations 2005. These regulations essentially deal with the administrative infrastructure (entitled Arrangements for Adoption work) of how adoption applications should work, particularly part 2. For the purposes of this talk, regulation 8 provides for an agency adviser to the adoption panel, regulation 9, the appointment of a medical adviser, regulation 15 “to obtain information about the child”, to include an examination by a registered medical practitioner who shall provide a written health report. Regulation 17 to complete a child permanence report which, along with the health report must be sent to the adoption panel.

Compliance with these regulations is understandably not optional. DFE statutory guidance makes the point that because of the permanence of adoption and the severing of the legal relationship with the child’s biological parent and creation of a new lifelong relationship with the child’s adoptive parent, the procedures MUST be followed to safeguard the child and the parents.

In Somerset I, Mrs Justice Roberts considered a number of cases in which the LA were concerned that proper compliance with the regulations had not taken place, the concern being that the CPRs had not complied with, in particular, regulations 15 and 17. In short, there had been a failure to obtain a medical report in respect of the children or to receive confirmation that such a report was not necessary, from a proper authorised person as specified in the regs.

In Somerset I, Mrs Justice Roberts found as follows:

  • There had been breaches of regulations 15 and 17; she could hardly not, they were admitted.
  • There had been a flawed decision-making process by the ADM in this regard.
  • The CPRs lacked input from the agency medical adviser.
  • These failings were systemic and happened over a long period of time. Whilst that case only considered ten placements, it became apparent that this involved a systemic failing on behalf of Somerset over an even longer time. It was feared that as many as 300 children could have been affected by this issue.
  • During this time, no one in a position of authority was aware of these failings, though this was not intentional.
  • Each identified child concerned had been “materially prejudiced” as a result of the delay caused by needing to resolve the matter in these proceedings which, given their ages was likely to have had a potentially detrimental effect on their welfare and their opportunity to achieve early permanence.

Notwithstanding these breaches, the overall view taken by Mrs Justice Roberts at para 227 was that SCC’s practices were materially compliant and the ADM decisions were based on the totality of the evidence available at the time, which was substantial and, in all other senses, sufficient.

Following this, the President of the Family Division invited all other local authorities to “review their policies, practices and procedures to ascertain whether there are systemic non-compliance issues which raise similar difficulties to those in the Somerset case and, if so, to begin the task of identifying affected children.” He also indicated that, until he could address the matter in March 2022, all non-urgent cases should wait.

This then brings us to Somerset II. Reviewing the facts of Somerset I, the President acknowledged that many LAs had realised that they too were likely to be acting in breach of some aspects of the Regulations of AAR 2005. Somerset II considered whether not, any and all such placement orders made in apparent breach of the Regulations should require separate declarations under Part 18 FPR 2010 as to their lawfulness or validity and/or what should be done about them.

The President considered that such an exercise was not necessary. He maintained the argument that “All court orders are valid and enforceable until a court sets them aside” unless revoked or appealed out of time. In other words, simply because a party knew or considered that the order had been made in any way erroneously was not able to disregard such an order, nor did the existence of such an error automatically invalidate a court order, unless and until reconsidered by a higher court. In this case, placement orders made previously remain valid and do not require further validation by way of a Part 18 declaration, if indeed such a declaration was possible.

The President also considered that, where the order permitting the LA to place a child for adoption was made erroneously, the next stage of the process, namely to make an adoption order, would be a stage removed from that and therefore not invalidated by the former. The errors such as they were, went to the validity of the LA’s application to place a child and not the court’s subsequent jurisdiction or order to do so.

Having made that point, the President went on to explain in more detail how someone wishing to challenge such a situation could do so. In respect of an appeal against the order, this would require permission to appeal and permission to do so out of time. Considering the relevance of the breach in the context of what I’ve just said, he takes the view that “it is difficult to contemplate a case where the circumstances surrounding a child’s health are so significant as to call into question the making of a placement order which was otherwise justified”. In other words, he couldn’t foresee a case where the child’s health issues, unknown as they were at the time of the application as a result of the absence of the health report, might now invalidate the order.

As to revocation, the ACA 2002 covers that, and I don’t intend to address it here in great detail. Again, the President found it difficult to foresee a situation in which concern over the child-in-question’s health, not known at the time of the application, would permit an application to revoke to satisfy the appropriate tests required. Revoking a placement order requires a change in circumstances and the applicant to demonstrate prospects of success, revoking an adoption order could only take place in “highly exceptional and very particular circumstances”.

Considering the precedent case of Re B (Placement order) [2008] EWCA 835  in which the Court of Appeal set aside a placement order on the basis of an adoption agencies failure to follow AAR 2005, the President drew the distinction that in that case, the court was aware of the failing at the time of the order being made and the appeal was against that decision, not the procedure which led to it. Additionally, in that case, the child in question had not yet been placed for adoption and the impact of delay or interference with that order was not the same as here and, finally, at the time of that case, there was a caveat as to the relevance of procedural failings left open by an earlier case, that was since closed.

The President also went on to consider the proper construction of Part 18 declarations and whether that Part was suitable for the purpose to which the LA was seeking to put it. In short, it was not. What the LA were seeking by way of general rulings to all Local Authorities, was not something which Part 18 was envisaged to cover. Part 18 does not establish its own jurisdiction to make orders or declarations- what is sought must be something which the court otherwise has jurisdiction to grant and, in any event, Part 18 is not available in cases where there are either no proceedings or, the proceedings have concluded.

Like Mrs Justice Roberts, the President was keen not for this to be considered a storm in a teacup, notwithstanding the conclusions he had drawn. He repeated the need for all Local Authorities to reconsider their practices and ensure that they adhere as required. If a case is identified which does not, it should be brought to the attention of the court which should, in most cases, ensure the issue is rectified before concluding. If to do so might prejudice a final hearing then the appropriate course is likely to be hear the case, but postpone the making of final orders unless and until the issue has been rectified, assuming that the apparent breach does not, at least on the face of it, appear something that is likely to materially affect the overall conclusion of the court.

James Cranfield

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