Emily Boardman

The Somerset case – Part two

Boardman, Hawkins & Osborne LLP

In February I wrote an article that summarised the first Judgment in relation to the Somerset cases of non-compliant placement orders. The President of the Family Division has now published the Judgment in relation to the second case and this Judgment tells us, as expected, the way forward.

The full Judgment can be found here:  (https://www.bailii.org/ew/cases/EWFC/HCJ/2022/31.html)

In brief we are told that there is no need for a court to re-examine cases where the Local Authority failed to comply with the medical requirements of the Adoption Agencies Regulations 2005 (AAR 2005) if a Placement Order has already been made.

This will include cases where children have already been adopted, placed with prospective adopters or, indeed, prior to placement.

This is because any court order is valid unless it is set-aside or varied by a court.

He does say that if a party to the original proceedings considers that the breach of the regulations may put the validity of the placement or adoption order in question then their application would be to seek permission to appeal out of time the final decision.

The President goes on to say that at its highest a breach of AAR 2005 would make a placement order voidable (not void) and subject to bespoke scrutiny during an appeal.

So, even in circumstances where birth families seek permission to appeal the making of the placement order, there will be very significant hurdles for them to jump and it should very definitely not be assumed that the breach of the regulations will lead to the child’s removal from adopters. Quite the opposite in my view.

The President says:

“For the reasons 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 wight to meet that very high test.” 

So what happens next?

  • If the adoption order has been made – nothing is required.
  • If the placement order has been made and the child has been placed with prospective adopters but no adoption order yet made – local authorities must review paperwork and if it is not compliant, update the CPR or Annex A report.
  • If the placement order has been made but the child has not yet been placed with prospective adopters – local authorities must review paperwork and if it is not compliant, update it.  
  • If the placement order has not yet been made – the local authority must notify the court and the court must consider what is required.
  • All local authorities must review their processes and ensure compliance with AAR 2005 going forward.

My view

I hope that this Judgment reassures adopters that there will not be any wholesale ‘re-opening’ of cases.

However, I do anticipate that prospective adopters may face further delays. Local authorities have known of these issues for many months now and I hope they are all proactively reviewing paperwork so that they know which cases are non-compliant and which are not.

Unfortunately, I have been contacted by many people who feel that the local authority in their case has either not done this or is not communicating with them appropriately. Perhaps now this Judgment is out they will.

How can we help?

If prospective adopters feel that their application for an adoption order, or the move to placement, continues to be delayed, they should seek legal advice. In the short term my advice is likely to be to give local authorities a bit of time to consider this Judgment but they should then be actively communicating with families how they plan to progress matters.

If you wish to discuss your case please do contact us on 01235 425500.

Emily Boardman
Boardman, Hawkins & Osborne LLP

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