A and B v Essex County Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Buckley |
| Judgment Date | 18 December 2002 |
| Neutral Citation | [2002] EWHC 2707 (QB) |
| Docket Number | Case No: 01/TLQ/1541 |
| Court | Queen's Bench Division |
| Date | 18 December 2002 |
[2002] EWHC 2707 (QB)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
The Honourable Mr Justice Buckley
Case No: 01/TLQ/1541
Gavin Millar QC and Mrs. Carole Parry-Jones (instructed by Fisher Jones Greenwood) for the Claimants
Edward Faulks QC and Andrew Warnock (instructed by Barlow Lyde Gilbert) for the Defendant
Hearing dates : 16 th, 17 th, 18 th, 21 st, 22 nd, 23 rd, 24 th, 25 th and 29 th October 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr. Justice Buckley
Mr Justice Buckley
A (Mr.) and B (Mrs.) were married in 1985. Both had been married before and A had two children, a girl and a boy, from his first marriage. By 1990 they had no children together and applied to be approved as prospective adoptive parents. Their local authority, to whom I shall refer as Essex (the Defendant), was the relevant adoption agency pursuant to the Adoption Act 1976. A and B were interviewed by Mr. Alan Kearsley, a social worker and adoption advisor, employed by Essex. He prepared Form F (Information on Prospective Substitute Parents) dated 1 st May 1991, in which he recommended A and B and in June 1991 they were approved by the adoption panel, established by Essex pursuant to the Adoption Agencies Regulations 1983.
In 1994 the adoption panel recommended two young children, a brother and sister, for adoption. I shall refer to them as "the children" or "the male/female child". The male child was born in 1990 and his sister in 1993. By 1994 they were in the care of Essex. In October 1995 the adoption panel recommended linking A and B with the children. In February 1996 the children were formally placed with A and B and finally, on 1 st May 1997, the court made adoption orders in respect of the children.
It is alleged that since the placement and adoption the male child has proved impossible to control, to such an extent that he has damaged A and B's home, health and family life. In September/October 1997 he was diagnosed as suffering from Attention Deficit Hyper-activity Disorder and is medicated with Ritalin. Since 1999 he has been in care appropriate to his special needs.
A and B now seek damages from Essex. It is alleged that Essex, its servants or agents, were negligent, in particular, in failing to inform A and B of the extent of the male child's difficulties of which it knew; had A and B been properly informed they would not have agreed to the placement.
Their case was described in Mr. Millar QC's opening as one of "lack of informed consent".
The trial before me was to decide liability only and I was told that it was the first case of its kind to come before the courts. Essex denies negligence, in the sense of carelessness, but also denies that it owed A and B a duty of care; it also denies causation. This is therefore another of those cases in which the court has to decide whether a local authority owes a common law duty of care when acting pursuant to a statutory framework. The relevant provisions here are to be found in the Adoption Act itself and Regulations made under it, in particular, the Adoption Agencies Regulations 1983.
The Statutory Framework
The Adoption Act 1976 provides:
"1. Establishment of Adoption Service
(1) It is the duty of every local authority to establish and maintain within their area a service designed to meet the needs, in relation to adoption, of –
(a) children who have been or may be adopted,
(b) …..
(c) persons who have adopted or may adopt a child,
and for that purpose to provide the requisite facilities, or secure that they are provided by approved adoption societies
(2) The facilities to be provided as part of the service maintained under subsection (1) include –
(a) …..
(b) arrangements for assessing children and prospective adopters, and placing children for adoption;
(c) …..
(3) The facilities of the service maintained under subsection (1) shall be provided in conjunction with the local authority's other social services and with approved adoption societies in their area, so that help may be given in a co-ordinated manner without duplication, omission or avoidable delay.
(4) The services maintained by local authorities under subsection (1) may be collectively referred to as "the Adoption Service", and a local authority or approved adoption society may be referred to as an adoption agency.
6. Duty to promote welfare of a child.
In reaching any decision relating to the adoption of a child a court or adoption agency shall have regard to all the circumstances, first consideration being given to the need to safeguard and promote the welfare of the child throughout his childhood; and shall so far as practicable ascertain the wishes and feelings of the child regarding the decision and give due consideration to them, having regard to his age and understanding."
Regulation 5 of The Adoption Agencies Regulations 1983 provides that:
"An adoption agency shall establish at least one adoption panel …..;"
and provides for the panel's constitution, including that one of its members must be the agency's medical adviser (who must be appointed and be a registered medical practitioner (R. 6(4).).
Regulation 6 provides for the agency's arrangements for adoption work, in particular, that the arrangements shall be set out in writing and reviewed at least every three years. The arrangements must include provisions for maintaining confidentiality and safekeeping of information and case records and authorising access to them, and so forth.
Regulation 7 provides for the agency's duties in respect of a child and his parents or guardian; it must, when considering adoption:
"7.
(2)
(a) set up a case record in respect of the child and place on it any information obtained by virtue of this regulation",
(b), (c), (d) and (e) mandate the obtaining of specified information about the child and its parents, a written report by a registered medical practitioner on the child's health, arranging such examinations of the child as are recommended by the medical adviser and the preparation of a report containing the agency's observations on such matters.
The written report by the registered medical practitioner shall include:
"….. and evidence of emotional disorder." (7. (2). (c) and Part II of the Schedule).
Regulations 9, 10 and 11 provide that the adoption panel must consider the agency's proposals and make recommendations to the agency; the agency then makes the decision but "only after taking into account the recommendation ….."
The adoption panel "consider and take into account all the information and reports passed to it by virtue of certain of the Regulations including the agency's written report. (7. (2). (e).).
As soon as possible after making its decision on whether a prospective adopter would be suitable for a particular child (linking) the agency must notify in writing the prospective adopter. (11. (2). (d).).
Regulation 12 is important and is in these terms:
"(1) Where an adoption agency has decided in accordance with Regulation 11. (1) that a prospective adopter would be a suitable adoptive parent for a particular child it shall provide the prospective adopter with written information about the child, his personal history and background, including his religious and cultural background, his health history and current state of health, together with the adoption agency's written proposals in respect of the adoption, including proposals as to the date of placement for adoption with the prospective adopter."
(2) provides that if the prospective adopter accepts the adoption agency's proposals the agency shall inform various identified parties and take various other steps including: sending a written report of the child's health history and current state of health to the prospective adopter's registered medical practitioner before the proposed placement, ensure that the child is visited within one week of the placement and thereafter as the agency considers necessary and ensure that written reports of such visits are obtained.
Regulation 12 makes it mandatory for the agency to provide written information about the child to the prospective adopter before placement (which may lead to adoption). "Written information about the child, his personal history and background" is fairly comprehensive, even if it does permit a degree of discretion. But it is expressed to include "his health history and current state of health, together with the adoption agency's written proposals in respect of the adoption ….." Those words clearly cover the matters which it is here alleged Essex failed to communicate to A and B and I did not understand there to be any issue about that. The real factual issue is whether the information in question was in fact communicated.
Those provisions are no more than one would expect. Any suggestion that a prospective adopter should go ahead without the fullest information about the child in question would be untenable, at least as a general proposition. There may, of course, be some confidential information about the birth parents, which is not deemed relevant to the child or the adoption, but I need not pursue that. Broadly speaking, no witness in this case, including the two experts called, was of the view that anything less than the fullest information about the children should have been provided. Those views were expressed not just having regard to the Regulations but based on common sense and practice. It is also to be noted that the Regulations mandate "written" information. It is against that regulatory background...
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