Impact of non-compliance with the Adoption Agencies Regulations 2005 provisions concerning medical reports

Any practitioners involved in placement orders and adoption decisions need to be aware of the recent decision of Mrs Justice Roberts in Somerset County Council v NHS Somerset Clinical Commissioning Group & Another [2021] EWHC 3004 and the subsequent developments for adoption cases within the whole of England. The original decision runs to some 228 paragraphs and so I will try to condense it down into the essential facts and in as much plain English as possible.

The legal background

A local authority must apply to the court for a placement order when:

• There are pending care proceedings; or,
• A child is already in the care of the local authority; and, in either case,
• The local authority is satisfied that the child ought to be placed for adoption.

(Adoption and Children Act 2002 s22(2)

 

The local authority cannot be satisfied that the child ought to be placed for adoption unless the authority’s Agency Decision Maker (‘ADM’) has made a decision to that effect under regulation 19 Adoption Agencies Regulations 2005. When making that decision, the ADM is required to consider the child’s permanence report and medical reports about the child and their parent.

The process leading up to that decision is supported by mandatory duties and requirements within the 2005 Regulations. They include:

• A duty, under regulation 15, to have the child examined by a registered medical practitioner and to obtain a written report from that doctor on the state of the child’s health unless the practitioner advises that the examination and report are unnecessary.
• Under regulation 17, the duty to include in the child permanence report a written summary from the agency’s medical adviser of the child’s past and current health and any future health care needs.

Because adoption brings about such important and generally irreversible changes for all those involved, strict compliance with the procedural steps leading to adoption is essential. The statutory guidance on adoption explains, at paragraph 2.15, that:

 

‘Because adoption, unlike any other permanence option, involves the ending of a child’s legal relationship with their parents and family and the creation of a lifelong relationship with new parents, the Act and the AAR lay down particular procedures to be followed.  Not only does the Act require the court to finalise the adoption process through the making of an adoption order (if that is the right decision for the child), but AAR 19 also requires the local authority’s decision maker to decide whether the child should be placed for adoption after the procedures set out in AAR 12 - 18 have been complied with.  A decision at the child’s statutory review that adoption should be the plan for the child is therefore only the first of many steps in the adoption process, which will lead - subject to the scrutiny of the plan in accordance with the AAR - to a formal ratification of the plan for adoption under AAR 19.’

 

When there has been an error or omission leading to the ADM’s decision, the courts will set aside the placement order. In Re B (Placement Order) [2008] 2 FLR 1404 Lord Justice Wall (as he then was) explained that the framework laid down by Parliament ‘cannot be bypassed or short-circuited’ and if there is a ‘material omission in the process’ leading to the agency’s decision, the court cannot substitute its own decision for that of the ADM and the only option is to refer the case back to the agency to make a fresh decision complying with the regulations. In last year’s Somerset case, Roberts J. further explained:

 

‘The regulations underpin the need for accurate reports and information precisely because this is the information which will inform the vital stage of decision making by the ADM.  It is also information which will subsequently inform the adopted child who seeks to understand his background and family circumstances in the future.  It is information which will inform the matching process and upon which potential adopters will rely both to inform their decision as to whether or not to proceed and in reaching an understanding of the particular needs of their child as he or she develops physically, emotionally and psychologically in their care.’

 

All of that being said, it has never been the case that any breach of the regulations will automatically invalidate the resulting placement order. Whilst non-compliance should only occur in exceptional cases, Roberts J goes on to say in Somerset that:

 

‘The court retains the ability in these circumstances to look at the nature of the breach in order to determine whether the essential quality of the decision-making process has been critically or materially undermined when viewed through the lens of the statutory objective of the regulations.’

 

The Somerset case

These proceedings relate to ten groups of children for whom placement orders were made between 2017 and 2021. They had all been made subject to care orders. Roberts J explains in her judgment:

 

‘Each has now been placed on the path to permanence and a secure future in the context of an adoptive placement as a result of placement orders approved by the court.  These orders having been made, extensive work has gone into the process of matching these children with prospective adopters.  In some cases, the ‘matching process’ has reached the stage of introductions and meetings between the children and their prospective adoptive parents.  In at least one case, the sibling group concerned has been told that their prospective adopters will be their new ‘forever’ parents.  This entire process has had to be halted temporarily as a result of the issue of these proceedings.’

 

The reason for the process being halted was (as the local authority accepted) the discovery that in all of these cases:

 

• In breach of regulation 15 of the 2005 regulations, no arrangements were made to have the children examined by a doctor and no medical report was obtained or written advice from the medical adviser that an examination and report were unnecessary.
• In breach of regulation 17, failing to include a summary, written by the medical adviser, into the state of the children’s health and future health needs and failing to direct the agency medical adviser to determine the need for these children to be examined in order to prepare the health reports or summaries.

 

Somerset County Council’s agency decision-maker told the court that she was unaware of the requirement for medical reports in regulations 15 and 17. She was already in possession of the initial health assessments prepared when the children came into care and wrongly assumed that these were also sufficient for the adoption procedures. Where a child appeared perfectly healthy, the ADM did not seek advice from the agency medical adviser about the need for further reports. Since 2018, there were no formal requests from Somerset CC to the agency medical adviser to prepare medical summaries as part of the regulation 19 decision process.

 

In fact, the 2013 Statutory Guidance specifically states that where a child has already become looked after and had a health assessment before the issue of adoption is considered, the agency:

 

‘…should immediately consult its medical adviser to ascertain whether the health information already obtained is sufficient, and sufficiently up to date, to fulfil the requirements of the regulations and the need for full information for the child, the adoption panel/decision-maker and the prospective adopter.’

 

These matters do not seem to have been picked up by either Somerset’s legal department or any of its social workers or team leaders. The local authority accepted that there had been ‘significant systemic failures.’

 

The judge made seven findings as follows:

 

1. ‘The requirements of regulations 15 and 17 have been breached.
2. SCC (Somerset County Council) adopted a flawed decision-making process in that the agency decision maker proceeded to make her decision and recommendation to the court in the absence of a report from the agency medical adviser;
3. In each case which I am considering in this judgment, the Child Permanence Report was completed without any apparent input from the agency medical adviser.
4. Those breaches occurred over a significant period of time and amounted to a systemic failure on the part of SCC.
5. During the relevant period, none of the professionals responsible, including those within SCC’s legal department who had oversight of these matters, appears to have been aware that they were acting, or authorising acts, in breach of regulation 15 and 17.
6. Each of the children within the primary cohort has been materially prejudiced by these regulatory breaches and the systemic failings of SCC in that decisions in respect of their future placements and, in some cases, the process of matching the children with prospective adopters, have come to an abrupt halt to await the court’s decision in relation the legality of their placement orders.  They have thus been in a state of legal limbo since April 2021.  Given the ages of these children, that delay over a period of almost six months is likely to have had a potentially detrimental effect on their welfare and their opportunity to achieve early permanence.
7. If SCC had complied with its regulatory obligations, as it was required to do, this litigation would have been avoided.’

Based on these findings, the judge then goes on to examine the details of the ten individual cases. She found that, in each of the ten cases, the medical evidence available and all of the surrounding circumstances of the child were such that nothing which could have been provided, if the regulations were complied, with would have undermined the decision made by the ADM to place the child for adoption. In those circumstances, the judge was able to give declarations that the placement orders were lawfully made so that the children can move forward with the process of adoption.

 

The end of the story?

If these ten cases were an isolated instance, in one local authority, it would have been a salutary lesson to all those dealing with adoption but no more than that. Unfortunately, that is not the case. In paragraph 118 of her judgment, Roberts J says that for Somerset County Council at November 2021:

 

‘I am told that at this point in time there are 36 children who have been placed but for whom an adoption application has not yet been made, or is pending.  A further seven children await the outcome of various matching panels.  Whilst adopters have been identified, matters can go no further until it is known whether their placement orders are legal.  A further six children are placed with foster carers who wish to proceed with an adoption application.  The balance of the wider cohort (some 200 odd children) are the subject of adoption orders.  They stand in a different legal position.  Many have been settled within their adoptive families for a significant period of time, and in some cases for a number of years.  Nonetheless, this illustrates the scale of the underlying problem and the potential consequences of this local authority’s failures for each of these children and their families.’

 

On 28 January 2022, the President of the Family Division, Sir Andrew McFarlane, issued a formal announcement explaining that, since the Somerset judgment was given, ‘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.’ The President has asked all local authorities to ‘review their policies, practices and procedures to ascertain whether there are systemic non-compliance issues which raise similar difficulties … and if so to begin the task of identifying affected children.’

 

All that can be said for certain is that for hundreds of children around the country there is a question about the legal validity of their adoption, or placement for adoption, and this is going to be very worrying for these families. Children may miss out on potential matches as adopters pursue a child unaffected by this uncertainty. If the numbers were relatively small, formal applications could be made to the court to obtain declarations, as Mrs Justice Roberts was able to do in the first batch of Somerset cases. To arrange detailed hearings for several hundred cases, however, with the court already backlogged by COVID-19 restrictions, is a huge undertaking.

 

In his January 2022 announcement, the President says that in early March 2022 he will hear arguments about ‘the best and most proportionate means by which cases involving this kind of non-compliance can be addressed.’ The President will then give a judgment giving guidance for local authorities, children’s guardians and the courts.

 

In the interim, for non-urgent cases, the President has directed:

 

1. Local authorities who have identified such non-compliant cases should not issue any further applications for declarations that the individual placement orders were lawfully made until after the President’s judgment has been delivered.
2. Where applications have been issued, non-urgent cases should not be case managed or determined until after the President’s judgment.
3. Where placement applications have been issued which do not comply with the regulations, it is open to the local authority to apply for leave to withdraw the application, arrange for the ADM to re-take their decision and re-issue a compliant application as quickly as possible.

 

Some cases, however, will not wait. The President suggests that urgent cases may arise where the child risks losing an adoptive placement for which they have already been matched or about to be matched or which an adoptive placement may break down if the adoption is delayed. In those cases, local authorities may still apply to the court to obtain declarations as to the lawfulness of the placement order and they should be dealt with by the local Designated Family Judge and, where possible, expedited.

 

Where applications are being made urgently, the issue of how to notify the birth parents is also addressed by the President’s announcement because they will be parties to any application for a declaration. Sir Andrew has directed that:

 

‘…the birth parents’ last known address should be identified and a short letter sent explaining that an issue has arisen in respect of their child and asking them to contact a named local authority lawyer for further information. Once a secure and confidential address has been established, a fuller letter can be sent. Birth parents should be offered free legal advice funded by each local authority. Any parents indicating in response that they wish to make representations to the court should then be sent the relevant papers.’

 

Conclusion

This story is far from over. It has the potential to cause a lot of worry and sleepless nights for adopters and people with whom children have been placed for adoption. We shall learn more about the way forward in the spring but, for now, it is very important that any professionals who have been involved in adoptions over the last few years make sure that they check whether their cases were dealt with in compliance with the regulations about medical reports. If there have been any cases of non-compliance these must be identified as a matter of urgency.

 

Photo credit: Trey Ratcliff on Flickr who has generously made this available through a Creative Commons licence