I want to give all you busy practitioners a quick 3 minute read to explain what the word ‘Somerset’ will now mean to you. I promise you, by the end of this week you will have heard it several times.
In the last 48 hours or so I have been involved in 3 cases, in the Family Court, Liverpool, that have fallen victim to the Somerset decision. In short this a decision that has triggered the exposure of local authorities (plural) breaching the Adoption Agency Regulations 2005 [‘AAR’] to the extent that it fatally compromises the basis upon which placement applications and consequently orders have been made.
The President of the Family Division issued urgent guidance. The President is to hand down further guidance in March 2022 about how this can be remedied in a lawful and proportionate way.
However, as I have experienced last week this leaves lots of cases in limbo. There are many, many cases that have recently concluded with placement orders or where between now and March the court is being asked to determine whether such an order should be made. What happens to those cases?
The guidance tells us that unless it is ‘exceptional’ we must await the guidance due in March 2022. Exceptional appears to mean those category of cases where placement orders have already been made and children are transitioning onto their adoptive home.
I was told on Friday was there is to be discussion between our Designated Family Judge, His Honour Judge Parker and our Family Division Liaison Judge, The Honourable Mr Justice Macdonald. I am sure we will receive further guidance.
So, I thought it useful to circulate a short summary telling you all what you need to know about this issue that we are all going to encounter.
How does a local authority issue a Placement Application?
Since the advent of the Adoption and Children Act 2002 there is now a statutory framework which regulates the circumstances in which a child can be placed for adoption. The only two routes in which a local authority / adoption agency can secure authorisation to place a child for adoption are (a) parental consent or (b) obtaining a placement order .
Section 22 of the 2002 Act makes specific provision for how an application for a placement order is to be made by a local authority acting as an adoption agency. It is governed by Part 14 of the FPR 2010. R14.11 make provision for reports to be provided in a form prescribed by PD14C which builds in the provisions of the AAR.
Adoption and Agency Regulations 2005
The regulations mandates the formation of an administrative infrastructure which includes the appointment of key individuals who have important functions within that infrastructure. One such important role is the appointment of a medical adviser. The information obtained from the medical adviser must be included in the child’s permanency report [‘CPR’] (regulation 17).
We know, as practitioners, this is the most important document for a child who has been made the subject of a placement order as it is used for the matching process and is the critical document that assists all professionals supporting the child’s transition from the care system to an adoptive family. Further, this provides the proposed adoptive family with a full and honest account of the child’s life story so informed decisions and planning can take place.
Reg 15 AAR
Requirement to obtain information about the child
(1) The adoption agency must obtain, so far as is reasonably practicable, the information about the child which is specified in Part 1 of Schedule 1.
(2) Subject to paragraph (4), the adoption agency must –
(a) make arrangements for the child to be examined by a registered medical practitioner; and
(b) obtain from that practitioner a written report (“the child’s health report”) on the state of the child’s health which shall include any treatment which the child is receiving, any need for health care and the matters specified in Part 2 of Schedule 1,
unless the agency has received advice from the medical adviser that such an examination and report is unnecessary.
(3) Subject to paragraph (4), the adoption agency must make arrangements –
(a) for such other medical and psychiatric examinations of, and other tests on, the child to be carried out as are recommended by the agency’s medical adviser; and
(b) for written reports of such examination and tests to be obtained.
(4) Paragraphs (2) and (3) do not apply if the child is of sufficient understanding to make an informed decision and refuses to submit to the examinations or other tests.”
Reg 17 AAR
(1) The adoption agency must prepare a written report (“the child’s permanence report”) which shall include –
(b) a summary, written by the agency’s medical adviser, of the state of the child’s health, his health history and any need for health care which might arise in the future;
What has the Somerset decision uncovered?
Somerset County Council v NHS Somerset Clinical Commissions Group & Anor [2021] EWHC 3004 (Fam).
This is a decision handed down by The Honourable Mrs Justice Roberts DBE on 10th November 2021. The catalyst for this issue coming before Roberts J rests in the decision of Re N (Children) [2021] EWCA Civ 785. At paragraph 7 of his judgment, Peter Jackson LJ said this:
“It is not every breach of regulations that will justify the upsetting of an otherwise regular order of this kind: see Re B (Placement Order) [2008] 2 FLR 1404. It appears that the breach of the Regulations may not be restricted to this case and that it may become necessary for rulings to be made by the High Court about the consequences in other cases. It would therefore not be right for us to enter into any unnecessary discussion of that issue.”
Somerset County Council (the authority) sought declaratory relief in relation to placement orders made over the last 4 years. It had come to light that there was an issue with the lawfulness of the placement orders as a result of the adoption agency not complying with aspects of its statutory duties under the Adoption Agency Regulations 2005 (AAR). The court made it clear that it was not engaging in any welfare inquiry in respect of the cohort of children before the court. Further, the court made it clear that it was not determining what went wrong by holding some inquiry into responsibility for breaches.
The authority had not complied with regulation 15 and / or 17 in relation to the cohort cases. In short, there was not the proper medical investigation and report prepared by the authorised person. The court heard argument that it would not alter the outcome and the detail required pursuant to regs 15 and 17 could be ‘pieced together’ from other documents and professionals. The court made it clear that, ‘What we have in this case is a series of admitted breaches which go beyond the simple rectification of a form’.
The court was invited to conclude that the substances and material aspects of the critical elements of decision making had been undertaken lawfully and any deficits amounted to form rather than substance and it was open to the court to put good that wrong without blowing the whole thing up. The Judge found that an evaluation of ‘substantial compliance’ involved an analysis of the decision maker’s state of knowledge at the relevant time.
“Put another way in the circumstances of this case, was there sufficient information available to the decision maker at the time of his or her decision to represent material or substantial compliance with the regulations? Did the agency decision maker have available at the relevant time sufficient information, including medical information in relation to each child, so as to enable a fully informed decision to be made?”
The authority obtained the declarations sought but the court making it clear,
“nothing which emerges from my findings in relation to the legality of these ten placement orders, absolves SCC from significant censure for its systemic failures.”
Roberts J, in her closing remarks said, ‘nothing of this sort can be allowed to happen again.’
And so, that is where The President has stepped in and issued his guidance. He said,
“it has become clear that a number of other local authorities nationally (acting as adoption agencies) have identified similar issues of non-compliance. The number of local authorities and, hence, the number of affected children is at present unclear.”
As a consequence, The President has invited 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 has made it clear that ‘save where a case is urgent’ judges should not engage in any hearings to determine any applications under Part 18 Family Procedure Rules 2010 (declaration of lawfulness). The President is to hear legal argument in March 2022 as to how this is to be remedied in the most proportionate manner.
The urgent cases are those where a placement order has already been made i.e. where, as a result of this litigation, a child might lose their identified adoptive placement. It is only in this category of case that the President considers a Part 18 could be heard and must be allocated to the DFJ. All other cases, it would appear (absent any other guidance) must now await March 2022.
As a result of what The President has tasked local authorities with, they must now engage with parents who might be impacted by this decision but are out of the court process i.e. where a placement order has been made but is potentially in breach of the regulations. They are to be contacted at their last known address and if there is a response, the birth parent(s) should be offered free legal advice funded by each local authority.
So what do we do?
There are likely to be two categories of cases impacted by this guidance; the first, where placement orders have been made and the second, where there is a placement application issued but yet to be determined.
Cases which have concluded:
- Review your own files to see if you can identity any client that might be effected.
- Confirm with your relevant local authorities that you are offering advice on this issue and liaise with them about how those referrals are to be managed bearing in mind the conflict checks that will need to be undertaken.
Cases before the court:
- Check and liaise with the local authority that all AAR regulations have been complied with.
- In particular, seek confirmation in relation to the child’s adoption medical and that it does not fall into the Somerset category.
- Request a response in writing confirming the above.
- If there is any concern, that might impact on a hearing, I would suggest urgent communication with the allocated Judge.
Conclusion
Needless to say, the ramifications of this decision will be far reaching. There will be financial consequences but more importantly there will be untold damage to the children and their families (whether they be birth or prospective adoptive or adopted).
This will compound all of the detriments already caused to families as a result of the global pandemic and as said in the Somerset decision,
‘This entire process has had to be halted temporarily as a result of the issue of these proceedings. There is thus a risk that delay and/or the existence of this litigation may result in the loss to these children of the opportunity for a secure and settled home life, something which they have been denied thus far outwith the context of the interim care which has been provided by their temporary foster carers. As SCC accepts, in several cases, and because of their ages or particular circumstances, the adoptive placement which has been identified for each of these children is their last chance to secure permanence. The options for these children are limited outside the prospect of long-term foster care.
Many of the birth parents will be leading disordered, chaotic lives and ill-equipped to manage the emotional fall-out if hopes are falsely raised of a reunion with their child or children. It is possible that some will have partners who may know nothing about previous placement or adoption proceedings. Other older or younger children in the family may be adversely affected by knowledge of a previously unknown sibling. The potential for fragile family dynamics to be disrupted, and vulnerabilities for a wide spectrum of children increased, are all too obvious to need articulation in this judgment. Into this extremely concerning matrix has to be factored the acute vulnerabilities of the children’s adoptive parents and families. Some of those parents have cared for their adopted child or children over a number of years and often within the context of those children having been fully integrated into a loving family which now includes other children born to their parents before or after the making of the adoption orders.’
The unmeasurable chaos and uncertainty must be measured against the draconian nature of the orders in question and the lifelong consequences wrong and / or bad decision making has on families. As Roberts J stated,
“However, because adoption represents such a fundamental step in any child’s life, proper scrutiny of the process of decision making is an essential and elementary safeguard not only for the child concerned and his or her birth parents but also for society at large. It is also vitally important that prospective adopters have full confidence in the system and know that they can rely on the information which they are given about a child to be accurate and complete. The decision to adopt and the commitment which adoptive parents make to a child or children whom they propose to make their own is very significant. Adoption creates a legal and lifelong bond between a child and his adoptive parents: it is a decision which needs to be fully informed for reasons which are too obvious to state. Since the making of a placement order operates as a legal platform for the move to matching and placing a child with an adoptive family, the lens of scrutiny must fall equally on that stage of the process.”
I await with interest to see how, in the interim, this is managed at local level until March 2022 when the national guidance will become clearer.
Written by Lisa Edmunds, CEO, Senior Consultant Barrister and Arbitrator