Somerset County Council v NHS Somerset Clinical Commissioning Group
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 10 November 2021 |
| Neutral Citation | [2021] EWHC 3004 (Fam) |
| Docket Number | Case No: FD21P00367 |
| Court | Family Division |
[2021] EWHC 3004 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE Mrs Justice Roberts DBE
Case No: FD21P00367
and
with
Mr Nicholas Goodwin QC (instructed by the Local Authority's Legal Department) for the Applicant
Mr Damian Garrido QC (instructed by Bevan Brittan) for the CCG
Ms Cleo Perry QC and Ms Elizabeth Willsteed (instructed by Alletsons Solicitors, Porter Dodson Solicitors, Avon & Somerset Family Law LLP (ASFL), and Daniells Family Law Limited (DFLL) on behalf of the Children's Guardians
Ms Alev Giz and Mr Jamie Niven-Phillips (instructed by Cafcass Legal) acting as Advocate to the Court
Hearing dates: 27 September to 1 October 2021
APPROVED JUDGMENT
Contents of this judgment:
A. Introduction: paragraphs 1 to 4
A. Introduction
This is an application by Somerset County Council (‘SCC’) for declaratory relief pursuant to Part 18 of the Family Procedure Rules 2010. It relates to the lawfulness of placement orders made between 2017 and 2021 in respect of a group of ten children. Each had entered the care system as a result of the inability of their birth parents to provide adequate care for them within their respective families. Each child affected by this litigation has been the subject of a care order. 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. 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.
The issue in relation to the lawfulness of these placement orders flows from the discovery in April this year (2021) that SCC, in its role as an adoption agency, has failed to comply with aspects of its statutory duties under the Adoption Agency Regulations 2005 (AAR). I shall come on to the circumstances in which this litigation arose and the steps which have been taken thus far in terms of case management to ensure a swift passage through the court for this initial ‘primary cohort’ of children. However, it is important to state at the outset that the implications of SCC's failings in this case go far beyond this primary cohort of children. The court has been made aware that its long-standing failure over a considerable period to comply with specific aspects of the statutory framework laid down by the AAR which underpin its primary obligations under the Adoption and Children Act 2002 has raised issues in relation to a significant number of other placement and adoption orders. Whilst none of the primary cohort of children is the subject of an adoption order, there are a great many children captured within the ‘wider cohort’ who have been living in established and loving homes where, as adopted children, they have had all the benefits which their adoptive status as a permanent member of their new family has brought. Were their legal status as adopted children to be challenged as a result of any potentially defective placement orders which provided the legal platform for those adoptions, the implications for those children, their birth families and their adoptive families would be far-reaching. I have been told that the wider cohort of children could number as many as three hundred. As Mr Goodwin QC, counsel for SCC has acknowledged, 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.
Since this issue first came to light in April 2021, some five months ago, a very significant amount of work and resources have been devoted within SCC with a view to establishing the situation of each individual child within the primary and wider cohorts, including the histories of their journeys through the courts and their current circumstances. As part of this process, twelve individual children were identified whose futures were ‘hanging in the balance’, as I have described above. In the case of two children in one sibling group, their prospective adoptive placement has now been lost 1 and thus the primary cohort of children has reduced to ten.
At an early case management hearing I agreed to list an urgent hearing over the course of five days during the vacation in order to determine the legality of these (now ten) placement orders. SCC has not yet made any Part 18 applications for declarations in relation to the wider cohort of children since they wish to consider the extent to which this judgment in relation to the primary cohort assists in further consideration of the wider cohort cases. Whilst my judgment is confined to these ten cases, the outcome for this smaller cohort of children may well have consequences in terms of the legality of earlier placement orders. In respect of those wider cohort children who are now the subject of adoption orders, different considerations apply as a matter of law. Further consideration will be given to how to proceed for these children at an early case management hearing which I intend to convene within a very short period after hand down of this judgment. For present purposes, I make it clear that the focus of the court's enquiry in the context of the existing Part 18 applications is the ten placement orders made in relation to each of the children who remain within the primary cohort.
B. Preliminary observations
First, the legality or otherwise of these placement orders must be determined as a matter of law and established legal principles. These are not applications in which I am exercising a welfare jurisdiction. I am not charged with a consideration of which option is the most appropriate decision for any, or all, of these children. I must decide whether their placement orders were legally made in the light of the procedural deficiencies which have now come to light and which are admitted by SCC. All parties potentially affected by the Part 18 declarations in this case urge me to navigate a safe route to legality for these children, including the Guardians who represent each of the ten children with whom I am concerned. There is disagreement between SCC, the local Clinical Commissioning Group (CCG) and the Guardians as to which route I should take. In terms of legal efficacy in the context of the desired destination and the soundness of the route proposed, CAFCASS Legal which appears through Ms Giz and Mr Niven-Phillips as advocate to the court, has identified issues with each road map which has been put before the court. I shall need to analyse the legal submissions which I have heard and in due course I shall set out the law which must inform my findings and conclusions. If these placement orders are found to have no legal basis or validity because of the procedural errors made by the adoption agency, it must start the entire process afresh by submitting fresh applications for placement orders. I was told by Ms Perry QC, who appears for the
Guardians, that such a course might take more than six months to complete given the fresh reports and investigations which would need to be completed. Further time would be needed for the court enquiry which would follow any fresh decision made by the agency decision maker in the light of the children's welfare from the foot of those new factsSecond, and the next point to make is that, just as the court is not carrying out a holistic welfare evaluation of these individual children's circumstances, it is not acting as a rubber stamp to legitimise orders which otherwise lack essential legal validity or integrity merely because it would be expedient and potentially in the children's interests to do so. Whilst at first blush it might appear counter-intuitive to a judge...
To continue reading
Request your trial
-
Somerset County Council v NHS Somerset Clinical Commissioning Group and Others
...made”. The application was heard by Mrs Justice Roberts, who, following an extensive judgment handed down on 10 November 2021 ([2021] EWHC 3004 (Fam)), granted the declarations that were sought with respect to ten of the children (two children having been removed from this “primary cohort” ......