England and Wales

Abstract

In April 2021 a case was heard in the Court of Appeal in which the applicant noticed that the local authority had applied for a placement order on the basis of an Agency Decision-Maker’s (ADM) decision that had not been made in accordance with the Adoption Agencies Regulations 2005. That case prompted a widespread review of cases where placement orders had been obtained by Somerset County Council and gave rise to an application in a group of cases in which children were in the process of being matched with prospective adopters. The application was for a declaration under Part 18 of the Family Procedure Rules 2010 that the placement orders had been lawfully made, notwithstanding the accepted breach of the Regulations. The local authority agreed that they had breached Regulations 15 and 17. At the time of the ADM decision, the agency did not have a health report from the agency medical adviser, or advice that one was not required. In addition, the Child’s Permanence Report did not include a summary, written by the agency medical adviser, of the state of the child’s health. The court found that the breaches of the Regulations were not merely matters of form which could be easily rectified, but potentially of substance. In each case, the court reviewed the medical reports that had been available to the ADM at the time of decision, and subsequent medical reports. In each case, the court came to the conclusion that the ADM had sufficient medical information before her at the time of making the decision, and that the medical adviser would have been unlikely to recommend further examination. The declarations were therefore made that the decisions and the subsequent placement orders were lawfully made. The court also considered the appointment of the medical adviser, which is required by Regulation 9. There was no formal document setting out the terms of appointment, but the court was satisfied from correspondence made available that the medical adviser had been properly appointed and subject to appropriate supervision and training.