Somerset County Council v NHS Somerset Clinical Commissioning Group and Others
| Jurisdiction | England & Wales |
| Neutral Citation | [2022] EWFC 31 |
| Court | Family Court |
2022 Mar 4; April 13
Adoption - Arrangements for adoption - Placement order - Local authority failing to obtain medical report on child - Failure constituting breach of adoption regulations - Local authority seeking declaration that orders lawfully made - Whether failure to obtain medical report rendering orders void or voidable - Whether necessary to obtain validation of orders - Approach to be taken where breaches identified -
The local authority became aware that there had been a breach of the Adoption Agencies Regulations 2005 with respect to applications for an order authorising a child’s placement for adoption. The breach was that no report on the child’s health had been obtained as required by regulation 15 of the 2005 Regulations and that the “child permanence report” did not include a medical summary written by the agency medical adviser, as required by regulation 17(1)(b). Once it was understood that the breaches had occurred it became apparent that, rather than being a one-off, the circumstances were in fact indicative of a systemic failure by the local authority to adhere to the medical requirements of the 2005 Regulations over the course of some years. The local authority applied for a declaration, pursuant to FPR Pt 18, that placement orders in respect of a “primary cohort” of 12 children had been lawfully made. Two children were removed from the primary cohort prior to the hearing, due to the failure of their prospective adoptive placements, but in respect of the rest a declaration was made in the terms sought. Having identified some 200 to 300 other children in respect of whom similar breaches had occurred, where the children were either at an earlier stage in the adoption process or had actually been adopted, the authority made a further Part 18 application in respect of certain children seeking declarations concerning the validity either of its internal decisions as to the child's suitability for adoption or, where adoption had already occurred, of the relevant adoption order.
On the applications—
Held, refusing the applications, (1) that where placement or adoption orders had been made, and had not been set aside or varied by the court, they did not require further validation by a declaration or other means since all court orders were valid and enforceable unless and until a court set them aside; that as to whether such orders were vulnerable to challenge, there was a distinction between a local authority’s decision as an adoption agency to apply for a placement order, which might be defective if taken in breach of one or more requirement in the Adoption Agencies Regulations 2005, and any subsequent decision of a court to grant the order; that while the former might be a target for challenge by judicial review, the latter was not; that applying the well-established constitutional theory of “the second actor”, according to which any unlawfulness by a first actor might invalidate their own acts but would not directly invalidate the act of a second actor, in the present context it was relevant that the court, as the second actor, had been unaware that the local authority, as first actor, had failed to abide by the 2005 Regulations when deciding to apply for a placement order; that, therefore, even if the local authority decision to apply was potentially void, the court had nevertheless been entitled to make its own decision and grant a placement order; and that where, subsequently, an adoption order had been made, the court making that order was in effect a third actor and was one step further removed from any defect in the original decision to apply for a placement order (post, paras 6,24–28,60).
(2) That a court would only be bound to declare that an existing order was void where the error made by a local authority went to the court’s jurisdiction to make the order; that none of the statutory criteria set out in section 21 of the Adoption and Children Act 2002 turned upon the local authority’s adherence to the requirements of the 2005 Regulations; that the significance of the Regulations was that they went to the local authority’s capacity, and in some cases its duty, to make an application under sections 19 and 22 of the 2002 Act, and not the court’s jurisdiction to determine whether to make an order; that it followed that an order made in circumstances where there had been a breach by the adoption agency of the medical requirements of the 2005 Regulations was not in consequence void; that at its highest it would be voidable and subject to challenge by way of appeal against the decision of a lower court to make the placement order, not against the applicant local authority’s decision to apply for that order; that accordingly, where, on the facts of any particular case, a party to the original proceedings was concerned that a breach of the 2005 Regulations might go to the validity of a placement order or an adoption order, then the route to challenge that order was by application for permission to appeal out of time; but that it was, however, difficult to contemplate a case where a health issue was so significant, yet not fully known to the court, that it might lead to a successful appeal (post, paras 6,34–36,49,61).
(3) That FPR Pt 18 was solely a procedural vehicle and did not of itself establish any jurisdiction to make orders or declarations; that the limitations in rule 18.1(2)(a)–(c) made it plain that Part 18 was not available in cases where there were no existing, or concluded, proceedings and the application was not one to start proceedings; that Part 18 was wholly inappropriate for the journey that was being contemplated by the local authority in the present case since it was no more than a procedural gateway to the court so that applications which the court otherwise had to have jurisdiction to grant in family proceedings might be made; and that there was thus no basis for local authorities or adoption agencies to issue similar applications with respect to breaches of the medical requirements of the 2005 Regulations that might have been discovered in cases where placement orders or adoption orders had been made (post, paras 6,57–59).
Per curiam. In cases where a breach of the 2005 Regulations is identified and an application for a placement order has been made but not determined, the local authority should consider itself under a duty to bring the breach to the notice of the court that is hearing the application. It will be for that court to make directions as to how matters should proceed, but, unless to do so would compromise the final hearing date, it is likely that the court will require the breach to be remedied before the final hearing so that all relevant information can be considered. Where a placement order has been made and remains in force, that order will remain valid unless and until it is either revoked under the statutory scheme in section 24 of the 2002 Act or otherwise set aside on appeal. Local authorities can from now on expect courts to be vigilant in order to be satisfied that the medical requirements of the 2005 Regulations have been complied with before any pending adoption application is decided (post, paras 67).
APPLICATION
On 22 November 2021 the applicant local authority, Somerset County Council, sought a declaration, pursuant to FPR 2010 Pt 18, that orders and placement orders made in respect of 44 children had been lawfully made despite a failure by the local authority to adhere to the medical requirements of the Adoption Agencies Regulations 2005 set out in regulations 15 and 17(10(b). The respondent, NHS Somerset Clinical Commissioning Group, was joined as a party on 2 July 2021 as were the various children's guardians who had been appointed in the earlier substantive proceedings.
On 10 November 2021 CAFCASS Legal was appointed as advocate to the court. On 19 January 2022 the Secretary of State for Education was invited to intervene in the proceedings and on 18 February 2022 CoramBAAF was joined as an intervener.
The facts are stated in the judgment, post paras 1–5.
Nick Goodwin QC (instructed by Head of Legal Services, Somerset County Council, Taunton) for the local authority.
Damian Garrido QC (instructed by Bevan Brittan LLP) for the clinical commissioning group.
Cleo Perry QC and Elizabeth Willsteed (instructed by Daniells Family Law Ltd, Taunton) for the children, by the children's guardian in each case.
Hannah Slarks (instructed by Treasury Solicitor) for the Secretary of State, as first intervener.
Alev Giz and Jamie Niven-Phillips (instructed by CAFCASS Legal) as advocate to the court.
Alexandra Conroy Harris on behalf of the second intervener.
The court took time for consideration.
13 April 2022. SIR ANDREW McFARLANE P handed down the following judgment.
Introduction1 In May 2021, in the course of proceedings before the Court of Appeal (In re N (Children) [2021] EWCA Civ 785), it became clear that there had been a breach of the Adoption Agencies Regulations 2005 (SI 2005/389) (“AAR 2005”) with respect to a decision made by a local authority, acting as an adoption agency, to apply for an order authorising a child’s placement for adoption. The local authority was Somerset County...
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