Top judge rules applications for declarations of validity of existing placement and adoption orders not necessary despite widespread failure to comply with health assessment requirements

Applications for a declaration as to the validity of existing placement orders or adoption orders are “neither appropriate nor required”, the President of the Family Division has concluded, despite the widespread ignorance of and failure to comply with the health assessment requirements in the Adoption Agencies Regulations 2005 (AAR 2005).

However, in Somerset County Council v NHS Somerset Clinical Commissioning Group & Ors [2022] EWFC 31 Sir Andrew McFarlane warned that local authorities could, from now on, expect courts to be vigilant in order to be satisfied that the medical requirements of the AAR 2005 have been complied with before any pending adoption application is decided. The judgment also sets out what the Family President considers needs to happen now.

The background to the Family President’s ruling was that in May 2021, in the course of proceedings before the Court of Appeal (Re N (Children) [2021] EWCA Civ 785), it became clear that there had been a breach of the AAR 2005 with respect to a decision made Somerset County Council, acting as an adoption agency, to apply for an order authorising a child's placement for adoption.

Sir Andrew said the breach involved a failure to obtain a report on the child's health, or have advice from the agency medical adviser that such a report was unnecessary, as required by AAR 2005, reg 15. In addition the 'child permanence report' did not include a medical summary written by the agency medical adviser, as required by AAR 2005, r 17(1)(b).

The Family President said that once it was understood that these breaches had occurred it became apparent that, rather than being a one-off, the circumstances in Re N were, in fact, indicative of a systemic failure by Somerset to adhere to the medical requirements of the AAR 2005 over the course of some years and involving adoption decisions made with respect to many children.

Following an extensive internal review, the county council identified some 12 children, who were each the subject of a placement for adoption order made under the Adoption and Children Act 2002, s 21 (ACA 2002), but whose further progress towards full adoption had been placed on hold pending clarification of their position, as a matter of law, because of an acknowledged breach of the medical elements of AAR 2005.

Somerset applied to the Family Division under Part 18 of the Family Procedure Rules 2010 (FPR 2010) seeking a declaration that 'the placement order made with respect to' each child 'was lawfully made'.

The application was heard by Mrs Justice Roberts, who, following an extensive judgment handed down on 10 November 2021 [Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor [2021] EWHC 3004 (Fam) [2021] EWHC 3004 (Fam)], granted the declarations that were sought with respect to ten of the children (two children having been removed from this 'primary cohort' prior to the hearing due to the failure of their prospective adoptive placement).

In addition to the primary cohort, Somerset identified 200 to 300 other children ('the wider cohort'), where similar breaches of the AAR 2005 had occurred, and where the children were either at an earlier stage in the adoption process, prior to the making of a placement order, or had actually been adopted.

The Family President said that Somerset intended to use the procedure under FPR 2010, Part 18 to seek a declaration from the court concerning the validity either of its internal decisions as to the child's suitability for adoption or, where adoption had already occurred, of the relevant adoption order.

Publication of Roberts J's judgment had, however, caused other local authorities to review their own position with the result that a number identified the same, or similar, breaches of the medical elements of the AAR 2005, Sir Andrew said.

He continued: “Whilst the prospect of the court, in the person of Roberts J, reviewing individual decisions made in up to 300 [Somerset] cases was itself a daunting one, the idea that this process might now need to be undertaken in courts up and down England and Wales for a large number of children, many of whom will have been in their adoptive homes for some years, led to the case being transferred to me, as President of the Family Division, for further consideration.”

The proceedings before the court remain those issued by Somerset.

Sir Andrew said: “By the time of the final hearing before this court on 4 March 2022, it had become clear that many, if not a majority, of local authorities in England had realised that they, too, were likely to have been acting in breach of some aspect of the medical requirements of AAR 2005. The number of children that are potentially affected by this unfortunate situation is therefore likely to be very significant indeed.”

Summarising his decision, the Family President said: “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. The outstanding FPR 2010, Part 18 applications for a declaration made by [Somerset] will be dismissed.

“There is no basis for other local authorities or adoption agencies to issue similar applications with respect to breaches of the medical requirements of AAR 2005 that may have been discovered in cases where placement orders or adoption orders have been made.”

Sir Andrew said that where, on the facts of any particular case, a party to the original proceedings is concerned that a breach of the AAR 2005 may go to the validity of a placement order or an adoption order, then the route to challenge that order is by application for permission to appeal out of time.

“It is, however, difficult to contemplate a case where a health issue is so significant that it may lead to a successful appeal, yet where that issue was not fully known to the court (notwithstanding any breach of the medical requirements of AAR 2005),” he said.

Later in his judgment, the Family President said: "These proceedings are now concluded and the Part 18 applications made by SCC will be dismissed. 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.

"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."

In a section about ‘What needs to happen now?’, the Family President said the fact that these proceedings had concluded with the dismissal of the local authority's application for declarations did not in any manner indicate that the problem which gave rise to that application had been resolved or was not important.

“The problem remains and it is now apparent that there has been widespread ignorance of, and non-compliance with, the health assessment requirements in AAR 2005. The court has not engaged at all with OFSTED, which has the responsibility for inspecting adoption agencies, but the extent of the apparent failure to abide by the regulations suggests that this is not an issue which has been picked up on inspection, amongst the many different requirements that OFSTED is responsible for regulating.”

The Family President said it was now a matter for each local authority and adoption agency to review its procedures and determine whether they have been operating in breach of the requirements of the AAR 2005.

“If breach of the regulations is identified in cases in which a decision to apply for a placement order has been made, but the application has not yet been made to the court, then the adoption agency will no doubt decide to retake the decision once the correct procedure has been undertaken,” he suggested.

“In cases where a breach is identified and an application for a placement order has been made but not determined, the local authority should consider itself under a duty to bring the breach to the notice of the court that is hearing the application. It will be for that court to make directions as to how matters should proceed, but, unless to do so would compromise the final hearing date, it is likely that the court will require the breach to be remedied before the final hearing so that all relevant information can be considered. To do otherwise would risk falling into the error of the recorder in Re B. Where a final hearing is imminent, it will be for the allocated judge to determine the way forward. In a case where no party, in particular the parents, is aware of any potential health issue that might conceivably impact upon the determination of the placement order application, it may be that the court will proceed with the final hearing but postpone making any final order pending receipt of the required medical information.”

Sir Andrew stressed that the decision in each case would be a matter for the individual judge, who would have the welfare of the child, the need to avoid delay and the need for a fair trial process "fully in focus".

The Family President said: “Where a placement order has been made and remains in force, that order, for the reasons that I have given, remains valid unless and until it is either revoked under the statutory scheme in ACA 2002, s 24 or otherwise set aside on appeal.

“An adoption agency continues to be under a duty to comply with AAR 2005 and, in particular, before a decision is taken to place a child with prospective adopters both the agency's adoption panel and the agency decision maker must consider the child's permanence report. Where, by that stage, an earlier breach of the regulations has been identified, plainly the permanence report must be updated to include the required medical information.”

He added that in the light of the judgment of Roberts J and of this judgment, local authorities “can, from now on, expect courts to be vigilant in order to be satisfied that the medical requirements of AAR 2005 have been complied with before any pending adoption application is decided”.