How not to conduct a placement application (part 2)

Rebecca Cross looks at a Court of Appeal ruling in a case where the ADM [agency decision maker] failed to carry out their duties properly.

Readers may recall the article on Re A, the January 2020 decision of HHJ Lazarus, which appeared in spring 2020. It is available to re-read here.

In Re N [2021] EWCA Civ 785 the mother of the child M, aged 6, was successful in her application to appeal the making of the placement order (though not her appeal to the dismissal of the application for the discharge of the care order). M has an older brother T, aged 13, placed in a specialist residential placement pursuant to a care order. No application to appeal was made in relation to T.

The mother’s sole ground of appeal was that the trial Judge failed to demonstrate that adoption was the only option for M in circumstances where the mother had separated from the abusive father and where T, whose behaviour had been extremely challenging, was no longer at home. The local authority and Guardian contested that ground of appeal though agreed the placement order should be set aside for a procedural reason: non-compliance with the Adoption Agency Regulations 2005.

At the time the ADM [agency decision maker] made their decision, they did not have a health report as required by Regulation 15(2)(b), nor advice that no such report was required. Furthermore, the Child Permanence Report did not include a medical summary prepared by a medical adviser as required by Regulation 17(1)(b).

The local authority sought permission to withdraw its previous application for a placement order and present M’s case anew to the ADM, thereafter issuing a new application for a placement order if the plan for adoption was approved.

In allowing the appeal and setting aside the placement order, the Court of Appeal:

• Reminded the parties that granting the appeal is the gift of the court even when all parties are in agreement.
• Also reminded practitioners that not every breach of regulations will justify the upsetting of an ‘otherwise regular’ placement order.
• Identified that it was unlikely that this was the only case where breaches of the regulations had occurred.
• Further High Court guidance rulings about the consequences of breach are likely to follow.

The Court of Appeal declined to comment on the substantive merits of the mother’s ground of appeal. Even if her appeal was successful, the ‘best outcome that the mother could have hoped for is for the application to be remitted to the Family Court’.

Practitioners advising in cases where the care plan is one of adoption should ensure that the health report requirements are satisfied when providing their advice to the ADM. If the ADM does not properly carry out its duties prior to the application for a placement order, the process is fatally flawed, cannot be cured by the court, and the case should go back to the ADM.

Such breaches inevitably cause delay for the child.

Rebecca Cross is a barrister at St Ives Chambers.