England and Wales High Court (Family Division) Decisions

1.      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.

2.      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.

4.      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

5.      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 facts.

6.      Second, 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 exercising a Family jurisdiction to ignore core aspects of a child’s welfare, that is not an issue which falls for consideration in the context of the current applications for declaratory relief in these Part 18 proceedings.  As needs no restatement for the purposes of this judgment, judges sitting in each Division of the High Court exercise an equivalent jurisdiction and apply the same legal principles applicable to the subject matter before the court.

7.      Third, and finally by way of preliminary observation, each of the primary cohort’s birth parents (bar one) have been notified about these proceedings.  Despite my direction that SCC should meet the costs of any legal representation involved in a request by each or any of the birth parents of the primary cohort children who wished to apply for party status or to intervene in these proceedings, none has sought to make any representations at all.  In respect of two fathers whose whereabouts could not be traced after an extensive search, I made disclosure orders against the Department of Work and Pensions.  One could not be traced; the other was made aware of the proceedings but was not available for service.  The birth mothers in both cases were notified but wished to take no part.  In a number of the ten cases with which I am concerned, the birth parents did not oppose the making of placement orders for their child or children knowing, as they would have done, that adoption was considered by SCC’s agency decision maker to be the best outcome for their child.    

8.      Thus, in circumstances where there has been no legal argument advanced on behalf of the birth families of these children, it has been of overriding importance for the court to have had the assistance of CAFCASS Legal as advocate to the court.  An invitation was extended and accepted pursuant to CPR 1998 PD 3G.  In its current role, CAFCASS Legal does not seek to comment on individual welfare issues pertaining to any of the primary cohort children.  Its legal costs are properly being met by SCC.  I would wish at the outset to express my thanks to CAFCASS Legal for its assistance.  The burden which has fallen on each of the legal representatives in this case has been a heavy one.  The demands of preparing their respective cases against the time constraints imposed by the court have been considerable.  I would want each of them to know at the outset that I have been assisted by their efforts.

C.        The format of this hearing

9.      At this stage of these proceedings, I am not determining what went wrong with a view to  some overarching enquiry into responsibility for these breaches.  As I shall explain, SCC has already accepted primary liability for the key operative failings of its officers and employees.  Whilst it is important to highlight these failures in this judgment so that urgent steps can be taken to ensure that further breaches do not occur which have the potential to jeopardise existing or future proceedings and the lives of the children who are the subject of those ongoing proceedings, I am concerned only with the ten cases before me.  After detailed submissions from counsel as to the way forward at a case management hearing on 13 and 16 July this year and a pre-trial review on 10 September 2021, it was decided that, at this stage, I would hear no oral evidence from individual actors in the piece.  I have extensive written evidence in the form of statements and exhibits filed on behalf of the individual professionals and decision-makers at the centre of this litigation.  On behalf of SCC, Mr Goodwin QC has prepared a document entitled “Concessions Document for Primary Cohort”. Whilst I heard submissions on some aspects of that document, the admissions within it will form the evidential basis for many, if not most, of the court’s findings in relation to the legality of the placement orders which are the subject of the declaratory relief which is sought.   I shall come to the detail of its contents shortly.

10.  Having completed my pre-reading before the case started as I indicated I would, I have heard detailed oral submissions from all counsel over the course of the last week.  In addition to a substantial volume of case law and statutory material, I have also had lengthy written submissions from each of the parties and CAFCASS Legal.  Representatives from the press and media have been in attendance at various hearings since this litigation commenced.  I understand entirely why the concerns raised in this case should have attracted the interest of the press.  Transparency is essential in a case such as this where there appears to have been such long-standing failure on the part of an organ of the state in an area where Parliament has approved a strict framework of regulation. Whilst I have made reporting restriction orders which prevent the naming of the local authority concerned at this stage of the proceedings, I have made it plain that I intend to review that position once my judgment has been handed down.  SCC accepts that it should be named as the responsible adoption agency but seeks to preserve its anonymity only for long enough to consider the next steps in terms of both the primary and the wider cohort of children affected by its failings.  Those next steps will require a careful consideration of the consequences of this judgment for those children.  It is only because I have determined that, at this point in time, the interests and article 8 rights of those children and the families who care for them, or have given birth to them, outweigh the article 10 rights of the press that I have sanctioned anonymity for the time being.  That anonymity is unlikely to survive the hand down of this judgment.

D.        How was this situation brought to light after such a prolonged period of procedural irregularity and non-compliance by SCC ?    

12.   As his Lordship recorded in paragraph 5 of his judgment:

“It has transpired that there was a breach of the Adoption Agency Regulations 2005.  At the time she made her decision in this case, the Agency Decision Maker (“ADM”) did not have a health report from the medical adviser as required by Regulation 15, or advice that no such report was required.  Furthermore, the Child Permanence Report did not include a medical summary prepared by the medical adviser as required by Regulation 17.  The local authority therefore intends to present M’s case again to the ADM and thereafter to issue a new application for a placement order if the plan for adoption is approved.  We were told by [counsel for SCC] that it is content to withdraw its previous application for a placement order on the basis that any fresh application was likely to be made in about six weeks’ time.  Bearing in mind the unfortunate history and the pressing need for a decision to be made about M’s future, any longer period would be concerning.  For her part, the mother is concerned that she was not told about this issue sooner.”

13.  At paragraph 7 of his judgment, Peter Jackson LJ said this:

“It is not every breach of regulations that will justify the upsetting of an otherwise regular order of this kind: see Re B (Placement Order) [2008] 2 FLR 1404.  It appears that the breach of the Regulations may not be restricted to this case and that it may become necessary for rulings to be made by the High Court about the consequences in other cases.  It would therefore not be right for us to enter into any unnecessary discussion of that issue.”

14.  At paragraph 10 of his judgment, his Lordship confirmed that he was following the consensual route put before the court on the basis of the agreement which had been reached between the parties and consequently the judgment on appeal in Re N should not be taken to have any consequences or implications for future decisions in other cases.  That judgment was adopted by both Males and Simler LJJ.

15.  In parallel with that case and in my capacity as the Family Division Liaison Judge for the Western Circuit, I was made aware on 29 April 2021 by one of the district judges sitting in Taunton that there was a similar problem in another adoption case with which he was dealing.  He transferred the case to me.  The issues in that case were identified as the following:-

(i)                 whether the medical adviser had been formally appointed to her post in relation to the reports which were required for the ADM pursuant to the AAR;

(ii)              whether that medical adviser had prepared a full health report for the Child Permanence Report;

(iii)            if not, whether the medical adviser had prepared a summary for the agency decision maker confirming whether or not any further medical consideration/assessment of the child was required.

16.  With the agreement of the Designated Family Judge for Somerset, Her Honour Judge Ingham, I agreed to list this case for directions in the wider context of the issues which were beginning to surface within the legal department at SCC.  Extensive investigations were by now underway within the department into the number of cases which might be affected by these procedural irregularities.  I listed an urgent case management hearing on 14 May 2021 at which Mr Goodwin QC appeared to represent SCC.   It became apparent that these issues were deep-seated in terms of non-compliance with certain aspects of the AAR over a significant period of time. That individual case was adjourned on the basis that SCC would issue applications for declaratory relief on the basis of not only that case but those affecting what we have since referred to as the wider cohort of children (which, for these purposes, then included the primary cohort).

17.  There were two further hearings which resulted in a substantive case management hearing over the course of two days on 13 and 16 July 2021.  By that stage there were before the court Part 18 applications in relation to the twelve children who were far enough down the road to the permanence of adoption and whose adoptive placements were likely to be lost if consideration was not given urgently to their situations.  It was made clear at that hearing that nine out of the twelve children who were the subject of the Part 18 applications did not have any health issues at all at the time of the ADM’s decision to approve their adoptive care plans.  I made provision for the filing of evidence and notification of the birth parents affected by the primary cohort applications. In relation to the wider cohort of children I also required SCC to file further evidence in schedule form outlining its compliance with AAR 2005.  Having set up this urgent hearing in relation to the primary cohort children, I directed that there would be a further case management hearing in relation to the other children affected by these issues as soon as this judgment was handed down.

18.  The applications in relation to the individual primary cohort children were formally issued on 20 July 2021.  They were joined as parties on 10 September 2021.  It is those applications with which I am now dealing.

E.         The evidence before the court

19.  Within the material which has been placed before the court are statements from:

(i)                 Claire Winter, the Agency Decision Maker for SCC acting as an adoption agency (‘ADM’);

(ii)              Julian Wooster, SCC’s Director of Children’s Services;

(iii)            Dr Carol Smith, SCC’s Adoption Medical Adviser (‘AMA’);

(iv)             Sarah Ashe, the designated nurse employed by the CCG with responsibility for ‘looked after’ children and care leavers;

(v)               Jane Poore, a social worker employed as an agency adviser for SCC over a five year period from 2016 to 2021 whose role was to ‘quality assure’ the adoption agency’s processes and to collate all relevant documentation for the ADM and medical adviser to consider;

(vi)             Mark Barrett, SCC’s Interim Strategic Improvement Lead who acted from time to time as an Agency Decision Maker.

20.  In addition, Claire Winter and the other relevant agency decision makers have filed separate statements in respect of each of the children who fall within the primary cohort group.  She has filed those statements in her capacity as the Agency Decision Maker for all but two of the children.  Exhibited to her statements are the various reports and other material which were available to her at the time she made her decisions to recommend adoption as the way forward for each of these children.  I shall need to consider this material in due course at a later stage of my judgment.

21.  Before turning to the extensive legal arguments advanced by the parties and by CAFCASS Legal, I propose to start by setting out the relevant statutory framework of the primary and secondary legislation which governs the placement and adoption procedure.  I will then consider the approach which appellate courts have taken on previous occasions in relation to breach and/or procedural irregularity in this field of law.  That will provide the context for the next stage which will be the analysis of the separate legal arguments advanced by counsel on behalf of their respective clients in the context of the available evidence and the response of CAFCASS Legal as Advocate to the court.

F.         The Law

The Adoption and Children Act 2002

22.  Section 18 within Chapter 3 of the Adoption and Children Act 2002 provides as follows:-

‘18    Placement for adoption by agencies

(1)   An adoption agency may –

(a)   place a child for adoption with prospective adopters, or

(b)   where it has placed a child with any persons (whether under this Part or not), leave the child with them as prospective adopters,

but, except in the case of a child who is less than six weeks old, may only do so under section 19 or a placement order.

(2)   An adoption agency may only place a child for adoption with prospective adopters if the agency is satisfied that the child ought to be placed for adoption.

(3)   A child who is placed or authorised to be placed for adoption with prospective adopters by a local authority is looked after by the authority.

(4)   If an application for an adoption order has been made by any persons in respect of a child and has not been disposed of –

(a)   an adoption agency which placed the child with those persons may leave the child with them until an application has been disposed of, but

(b)   apart from that, the child may not be placed for adoption with any prospective adopters.

‘Adoption order’ includes a Scottish or Northern Irish adoption order.

(5)   References in this Act (apart from this section) to an adoption agency placing a child for adoption –

(a)   are to placing a child for adoption with prospective adopters, and

(b)   include, where it has placed a child with any persons (whether under this Act or not), leaving the child with them as prospective adopters;

and references in this Act (apart from this section) to a child who is placed for adoption by an adoption agency are to be interpreted accordingly.

(6)   References in this Chapter to an adoption agency being, or not being, authorised to place a child for adoption are to the agency being or (as the case may be) not being authorised to do so under section 19 or a placement order.

(7)   This section is subject to sections 30 to 35 (removal of children placed by adoption agencies).’

23.  Before the 2002 Act, the placing of a child for adoption was by and large an administrative process for a local authority or adoption agency.  That process was undertaken in circumstances where the birth parent(s) agreed, or where such placement had been authorised as part of a care plan in a care order, or under the authority of a court order freeing a child for adoption.  Sections 18 to 41 of the 2002 Act now provide a statutory code or framework which regulates the circumstances in which a child can be placed for adoption.  The general effect under the current law is that:-

(i)                 before a child can be placed for adoption, a parent must be fully engaged in the decision-making process.  This is achieved either by that parent giving consent to the adoption or by being provided with the opportunity to contest the proposal for adoption through court proceedings;

(ii)              if the parent gives consent to a placement of his or her child for adoption, or if the court makes a ‘placement order’ which leads to an adoptive placement, the options open to a parent to reverse the path to adoption or to challenge the subsequent adoption application are significantly reduced.

The rationale behind the change in the legislation is to accelerate the point on the continuum of decision-making when a parent can challenge a local authority’s decision that adoption is the optimum outcome for a child in its care based on global welfare considerations.   The challenge must now come before any adoption decision is made.  In that way, the ability of a parent to challenge a child’s placement, often months, or in some cases years, after the child had been moved to his/her new family, was removed.

25.  Thus, the only two routes by which an adoption agency can secure authorisation to place a child for adoption are (i) placement with parental consent (section 19 ACA 2002), or (ii) securing a placement order (section 21).  Once a child has been placed for adoption pursuant to a full and informed consent given by a parent pursuant to section 19 of the 2002 Act, he or she will continue to be regarded as a child ‘placed for adoption’ even if that parent subsequently has a change of mind: see section 19(4).  Once consent from a parent is forthcoming, the following potentially irrevocable consequences flow from that consent:-

(i)                 a parent requires permission from the court to oppose any adoption application (section 47);

(ii)              there is a restriction on that parent’s ability to apply for a child arrangements order (section 28(1));

(iii)            the parent’s ability to maintain contact with his or her child will be decided by the adoption agency or a court (section 26);

(iv)             the adoption agency acquires parental responsibility for the child as do the prospective adopters once the child has been placed (section 25); and

(v)               there are restrictions on that parent’s ability to require removal of their child from the placement and/or return of the child (sections 30 to 35).

26.  Section 21 of the 2002 Act sets out the way in which ‘placement orders’ operate:-

‘21       Placement orders

(1)   A placement order is an order made by the court authorising a local authority to place a child for adoption with any prospective adopters who may be chosen by the authority.

(2)   The court may not make a placement order in respect of a child unless –

(a)   the child is subject to a care order,

(b)   the court is satisfied that the conditions in section 31(2) of the 1989 Act (conditions for making a care order) are met, or

(c)   the child has no parent or guardian.

(3)   The court may only make a placement order if, in the case of each parent or guardian of the child, the court is satisfied –

(a)   that the parent or guardian has consented to the child being placed for adoption with any prospective adopters who may be chosen by the local authority and has not withdrawn the consent, or

(b)   that the parent’s or guardian’s consent should be dispensed with.

This subsection is subject to section 52 (parental etc. consent).

(4)   A placement order continues in force until –

(a)   it is revoked under section 24,

(b)   an adoption order is made in respect of the child, or

(c)   the child marries, forms a civil partnership or attains the age of 18 years.

‘Adoption order’ includes a Scottish or Northern Irish adoption order.’

27.  A court will only make a placement order under section 21 if that step can be justified on the basis of having given paramount consideration to the child’s welfare throughout his or her life and having regard to the other matters in the welfare ‘check list’ set out in section 1 of the 2002 Act.  Once a placement order has been made, the local authority or adoption agency has the ability to regulate or control contact with the birth parents or extended members of the child’s birth family and a parent will require the court’s permission to oppose a formal adoption application.  In addition, unless and until there is an application to revoke the placement order, the local authority is entitled to proceed with placing the child for adoption.

28.  Section 22 of the 2002 Act makes specific provision for how an application for a placement order is to be made by a local authority acting as an adoption agency.  The procedure is governed by Part 14 of the Family Procedure Rules 2010. Rule 14.11 makes provision for reports to be provided in a form prescribed by PD14C which builds in the provisions of the AAR.  Very often the application for a placement order will be made in the context of ongoing care proceedings.  Section 24 provides for the revocation of placement orders.  Section 24(2) prohibits a birth parent from applying to revoke an order unless he or she has the court’s prior permission to make the application or the child has not yet been placed for adoption.  Before permission can be given, a court has to be satisfied that there has been a change in circumstances since the placement order was made: section 24(3).  Since none of the birth parents of the primary cohort children has sought to make representations at this hearing, and none has sought to revoke the original placement orders, I need not say any more about this aspect of the statutory code.

The Adoption Agencies Regulations (‘AAR’) 2005

29.  The primary legislation embodied in the 2002 Act is underpinned and supported by the Adoption Agencies Regulations 2005 which came into effect on 30 December 2005 and apply only in England.  The AAR 2005 set out detailed requirements imposed on an adoption agency in carrying out its functions.  For these purposes, the Regulations apply whether an adoption agency is a local authority or a registered adoption society (i.e. a voluntary organisation which is registered as an adoption agency under Part 2 of the Care Standards Act 2000: see section 2(1) of the ACA 2002). 

30.  In terms of making arrangements to conduct adoption work, Part 2 of the AAR mandates the constitution of the administrative infrastructure and the appointment of various key individuals who will have important functions within that infrastructure.  For the purposes of this case, the key provisions are regulations 8 (appointment of an agency adviser and a medical adviser), 15 (requirement to obtain information about the child) and 17 (requirement to prepare a child’s permanence report).  The AAR provide a substantial regulatory framework as to how an adoption agency is to conduct its business in terms of its statutory functions under the ACA 2002.  It runs to 47 separate regulatory provisions divided into eight separate parts including five lengthy schedules.  It is supported by statutory guidance embodied in a separate document issued by the Department of Education in July 2013.  That document runs to 378 pages.    It is prefaced by this summary introduction:-

“This is statutory guidance from the Department of Education.  This means that recipients must have regard to it when carrying out duties relating to the adoption of children and the recruitment and support of adopters in England.

….. The guidance explains the content of regulations made under the Adoption and Children Act 2002, and the duties and responsibilities that they place on adoption agencies.

This guidance is issued under Section 7 of the Local Authority Social Services Act 1970 which requires local authorities in exercising their social services functions, to act under the general guidance of the Secretary of State.  This guidance must be complied with by local authorities when exercising these functions, unless there are exceptional reasons which justify a departure.

The guidance applies to England only and should be read by everyone involved in the adoption of children - especially children’s social workers - and those who work with adopted adults and birth families.”

31.  The rationale for compliance is perhaps best distilled in paragraphs 2.15 and 2.16 of the statutory guidance in these terms:-

“2.15 Because adoption, unlike any other permanence option, involves the ending of a child’s legal relationship with their parents and family and the creation of a lifelong relationship with new parents, the Act and the AAR lay down particular procedures to be followed.  Not only does the Act require the court to finalise the adoption process through the making of an adoption order (if that is the right decision for the child), but AAR 19 also requires the local authority’s decision maker to decide whether the child should be placed for adoption after the procedures set out in AAR 12 - 18 have been complied with.  A decision at the child’s statutory review that adoption should be the plan for the child is therefore only the first of many steps in the adoption process, which will lead - subject to the scrutiny of the plan in accordance with the AAR - to a formal ratification of the plan for adoption under AAR 19.

2.16  These procedures constitute a safeguard for both the child and the parents, but it is important that compliance with them does not lead to unnecessary delay in securing the child’s future.  The steps that have to be taken in accordance with AAR 12-19 and this part of the guidance should not be considered in isolation, or as sequential steps.  The key duties of the adoption agency under AAR 12-19 consist of:

§  providing information and counselling to the child and parents (and other family members as appropriate);

§  gathering information (including the wishes and feelings of the child and parents) needed to complete the CPR [the child permanence report];

§  referring the report to the agency’s decision-maker or panel ….; and

§  making a decision whether the child should be placed for adoption.”

32.  The statutory guidance goes on to make it plain that the gathering of information is a continuous process (para 2.17).  That information will often inform a ‘twin-track’ process which allows for parallel planning from an early stage.  It stresses that the work which needs to be done to gather information will have begun from the time of the initial assessment and it will continue with the core assessment and the further ongoing assessments which form part of the review process.  As para 2.18 makes clear, “the compilation of the CPR itself is not a fresh piece of work, but for the most part a bringing together of information that has been gathered already over a period of, probably, several months at least”. [emphasis provided]

33.  I set out below the content of regulation 7 (which concerns the structure of the arrangements which should be put in place) and the two regulations (15 and 17) which are central to this court’s determination of the lawfulness of the primary cohort children’s placement orders.  It is the breach of these two regulations which call into question the lawfulness of the primary cohort children’s placement orders.

“7.     Adoption agency arrangements for adoption work

An adoption agency must, in consultation with such persons in the central list as the agency considers appropriate and, to the extent specified in regulation 8(4) with the agency’s medical adviser, prepare and implement written policy and procedural instructions governing the exercise of the functions of the agency and an adoption panel in relation to adoption and such instructions shall be kept under review and, where appropriate, revised by the agency.”

I pause at this point to record that SCC has thus far failed to provide the court with any written policy and/or instructions.

          ……..

          “15.   Requirement to obtain information about the child

(1)   The adoption agency must obtain, so far as is reasonably practicable, the information about the child which is specified in Part 1 of Schedule 1.

(2)   Subject to paragraph (4), the adoption agency must –

(a)   make arrangements for the child to be examined by a registered medical practitioner; and

(b)   obtain from that practitioner a written report (“the child’s health report”) on the state of the child’s health which shall include any treatment which the child is receiving, any need for health care and the matters specified in Part 2 of Schedule 1,

unless the agency has received advice from the medical adviser that such an examination and report is unnecessary.

(3)   Subject to paragraph (4), the adoption agency must make arrangements –

(a)   for such other medical and psychiatric examinations of, and other tests on, the child to be carried out as are recommended by the agency’s medical adviser; and

(b)   for written reports of such examination and tests to be obtained.

(4)   Paragraphs (2) and (3) do not apply if the child is of sufficient understanding to make an informed decision and refuses to submit to the examinations or other tests.”

………

“17.   Requirement to prepare child’s permanence report

(1)   The adoption agency must prepare a written report (“the child’s permanence report”) which shall include –

(a)   the information about the child and his family as specified in Parts 1 and 3 of Schedule 1;

(b)   a summary, written by the agency’s medical adviser, of the state of the child’s health, his health history and any need for health care which might arise in the future;

(c)   the wishes and feelings of the child regarding the matters set out in regulation 13(1)(c);

(d)   the wishes and feelings of the child’s parent or guardian, and where regulation 14(4)(a) applies, his father, and any other person the agency considers relevant, regarding the matters set out in regulation 14(1)(c);

(e)   the views of the agency about the child’s need for contact with his parent or guardian or other relative or with any other person the agency considers relevant and the arrangements the agency proposes to make for allowing any person contact with the child;

(f)    an assessment of the child’s emotional and behavioural development and any related needs;

(g)   an assessment of the parenting capacity of the child’s parent or guardian and, where regulation 14(4)(a) applies, his father;

(h)   a chronology of the decisions and actions taken by the agency with respect to the child;

(i)     an analysis of the options for the future care of the child which have been considered by the agency and why placement for adoption is considered the preferred option; and

(j)     any other information which the agency considers relevant.

The remaining subsections concern cases that may or may not be referred to the adoption panel and this issue does not arise in this litigation.

G.        Concessions in relation to breach of procedural requirements made by SCC

34.  In this case, the non-compliance with aspects of the AAR and thus the procedural irregularities which call into question the legal validity of the placement orders made in respect of the primary cohort children concern breaches of Articles 15 and 17.  There is also a factual issue about compliance with Article 8 in terms of the formal appointment of Dr Carol Smith as Agency Medical Adviser for SCC.  These procedural irregularities must now be considered in the light of the re-amended Concessions Document which records SCC’s current position in terms of its breaches.  A copy of that document in its final form is appended in full as a separate Annex to this judgment.  I summarise the key concessions below:-

(i)                 Breach of Article 15

§  failing to make arrangements for each child to be examined by a doctor;

§  failing to obtain from that doctor a written health report or alternatively to obtain advice from the medical adviser that such an examination and report was unnecessary.

(ii)              Breach of Article 17

35.  In relation to these breaches, Claire Winter, the agency decision maker, accepts that she was unaware of the need or requirement laid out in regulation 15 to consult Dr Smith, the medical adviser, in order to seek her opinion as to whether or not a fresh report was required for each individual child in circumstances where she, Ms Winter, was already in possession of medical / health information in the form of earlier reports which were available to her on the children’s files.  Ms Winter also accepts that she was unaware of the requirement in regulation 17 for the medical adviser to prepare a separate health summary for inclusion in the CPR.  She had assumed, wrongly, that the initial health assessments (IHAs) on each child’s file prepared on their reception into care were sufficient for these purposes.  Where the individual child had no discernible health conditions and appeared to be perfectly healthy, she did not seek the advice of Dr Smith in relation to the need for further reports.  She confirms in her written evidence that she believed, wrongly, that if Dr Smith had any concerns that the information contained in the previous health assessments was inadequate, the doctor would have alerted her prior to the ADM decision.  It is accepted by SCC as the adoption agency that, after 2018, there were no formal requests made to Dr Smith to prepare medical summaries despite the fact that the job description for the medical adviser from 2019 onwards included the provision of medical summary reports.

36.  In this case, as the evidence shows, nine out of the original twelve children captured within the primary cohort group in these proceedings were the subject of full initial health assessments (IHAs) prior to the ADM’s decision.  Those assessments were available to Ms Winter when she made her decisions in relation to each child within this group.  I shall need to consider the information contained within those assessments in due course.  At this stage, it is of note that the use of IHAs is specifically covered by the 2013 Statutory Guidance in these terms:

“Health assessment

2.54  If the child is already looked after, there will have been a health assessment under regulation 7.1 of the Care Planning, Placement and Case Review (England) Regulations 2010 and a report of this assessment in accordance with those regulations.  Once the agency is considering adoption for the child, it should immediately consult its medical adviser to ascertain whether the health information already obtained is sufficient, and sufficiently up to date, to fulfil the requirements of the regulations and the need for full information for the child, the adoption panel/decision-maker and the prospective adopter.

2.55  Where a new health assessment is needed, this should be organised in sufficient time to allow the medical adviser to complete their part of the CPR.  Delay in commissioning any necessary examination and further report could make it impossible to comply with the timescales for the completion of the CPR.  If the agency does not have parental responsibility for the child, and the child is too young to consent on their own behalf to a health assessment, the consent of a parent or guardian will be needed.  The cooperation of parents will also be needed to obtain the fullest possible information about the health history of the child (including prenatal and neo-natal health) and family.  AAR 15.4 provides that if the child is of sufficient understanding and refuses to submit to medical examinations or tests the adoption agency is not obliged to make arrangements for these.”

37.  The case advanced by SCC as the adoption agency in this case is that any gaps in the children’s health reports (for example, in relation to their immunisation history which had not been updated in some cases) were not material to the merits of the ADM’s decision to place that child for adoption.  For the purposes of the declaratory relief in relation to the lawfulness of the placement orders which is the subject of these Part 18 proceedings, Mr Goodwin QC submits on behalf of SCC that the two paragraphs which I have set out above from the 2013 statutory guidance place the emphasis on the sufficiency and substance of the information in the reports available to an agency decision maker rather than the form of those reports. It is not suggested that medical evidence is irrelevant to the exercise of its functions since this constitutes an integral part of the child’s background.  SCC does assert that the absence of aspects of the medical evidence would not in itself prevent the ADM from deciding that a child should have the opportunity to be placed for adoption given that any potential adopters would be provided with a full and complete picture of the child’s health in the form of the pre-adoption medical report which would be available prior to matching.

38.  In terms of compliance, it is accepted by SCC that these deficiencies and the breaches of Articles 15 and 17 were not picked up by its legal department or by any of its social workers and/or team managers.

39.  By way of overall concession in relation to its decision-making processes, SCC accepts that there were “significant systemic failures” and that, accordingly, those processes were flawed.  It acknowledges that Dr Smith, as the agency medical adviser, was often placed under time pressure to perform her various functions from the very outset of her appointment to that role.  That time pressure arose in part as a result of what are referred to as “commissioning gaps”, in other words a failure to put in place sufficient resources to enable her in a timely way to undertake her statutory functions.

40.  As to the effect of these failures on the children who are at the centre of this litigation, SCC accepts that each child has been materially affected by the breaches which has left this primary cohort in a state of stasis since these matters came to light in April 2021.  It is acknowledged that their prospects of permanency have been placed at risk as a result.  It accepts that this litigation would have been entirely unnecessary if there had been full compliance with the AAR.

H.        The appointment of Dr Carol Smith as Agency Medical Adviser

41.  Before turning to look at the existing jurisprudence in relation to the effect of these acknowledged breaches, I propose to deal with the separate issue of whether or not Dr Smith was formally appointed as the Agency Medical Adviser in compliance with regulation 8 AAR.  In particular, it is important to establish whether that formal appointment was in place and continuing during the period when Claire Winter, as the ADM, made her decisions in respect of each of the primary cohort children that they should be placed for adoption.

42.  Regulation 8 AAR deals with the requirement to appoint both an agency adviser and a medical adviser.  The agency adviser must be a social worker with at least five years’ relevant post-qualification experience and relevant management experience: reg 8(2).  In this case we know that Jane Poore was appointed to this role by SCC.  Her functions included the giving of advice to adoption panels. She was also responsible for the constitution of those adoption panels and for the training of the individual panel members.  Ms Poore acted as a point of liaison between SCC, in its function as an adoption agency, and the various adoption panels.

43.  Regulation 8(3) requires an adoption agency to appoint at least one registered medical practitioner as its agency medical adviser.  One of the functions of that AMA is to oversee the arrangements for access to, and disclosure of, health information which is required or permitted by virtue of AAR: reg 8(4).  There is a statutory duty to consult the AMA in relation to that health information.  Part 2 of Schedule 1 to the AAR deals with ‘Matters to be included in the child’s Health Report’. 

44.  The 2013 Statutory Guidance issued by the Department of Education provides a list of the various functions of the AMA: paragraphs 1.6 and 1.7.  Paragraph 1.7 provides in terms as follows:-

“Where a case is being presented to the adoption panel, the medical adviser must advise the adoption panel clerk whether to send to the adoption panel the child’s health report, other medical and psychiatric reports, and health information about the child’s birth parents.  Where a child’s case is not being referred to the adoption panel but direct to the decision-maker, the medical adviser should be ready to answer any medical question arising from their written summary or other papers asked by the decision-maker.”

45.  In relation to the formal appointment of the AMA, paragraph 1.8 of the statutory guidance says this:-

“It is recommended that the agency make arrangements for the appointment of its medical adviser with a local clinical commissioning group’s designated doctor for looked after children.  Each group should appoint such a designated doctor to assist it to fulfil its responsibilities as a commissioner of services to improve the health of looked after children.  The designated doctor is likely to be a senior paediatrician with substantial clinical experience of the health needs of looked after children.  In some circumstances, the designated doctor may also be able to fulfil the role of the medical adviser.  Alternatively, the designated doctor should be able to recommend another doctor to become the agency’s medical adviser.  A VAA [voluntary adoption agency] may seek advice from a group’s designated doctor on arrangements for the appointment of a medical adviser. ..….”

46.  Here there is no document evidencing the appointment of Dr Smith as the AMA whether by letter or otherwise.  She has confirmed in her written statement dated 3 August 2021 that she was appointed to her role as the AMA for SCC on 15 August 2014.  She states that she is fully up to date with the required annual appraisal and revalidation procedures, her next revalidation date being 15 December 2023.  It is clear from her curriculum vitae (paragraph 2: “Paediatric Experience”) that she is well-qualified for the role.  Her predecessor in the role of ADM was Dr Sarah Kelly who retired in August 2014.  Dr Kelly had worked with Dr Smith at a local hospital in Taunton where Dr Smith continues to be based.  As far as the formalities of Dr Smith’s appointment to the role of AMA are concerned, it appears that she was one of two candidates identified for the role as part of progression planning for Dr Kelly’s retirement.  She was formerly interviewed for the role by Dr Louise Newbury who was the consultant paediatrician and clinical service lead for paediatrics in the hospital in August 2014.   Dr Smith confirms that she was appointed to the role of ADM at the conclusion of the interview and subsequently underwent a period of induction prior to succeeding Dr Kelly in August 2014 on her retirement from the profession.  She has provided a full account of that induction training in her witness statement.

48.  Following that appointment, Ms Winter organised part of Dr Smith’s induction programme, sanctioned her security access to County Hall and approved the provision of official SCC IT equipment in order to enable her to discharge her role as medical adviser.  It seems to me that this course of conduct on the part of Ms Winter in the context of her wider role as Director of Children’s Services is reliable evidence of a formal appointment of Dr Smith to her new role.  One has to ask why any of these steps would have been taken if she had not been appointed to the role?

49.  Significantly, the Adoption Agency Adoption Annual Reports for 2014 and 2015 both make specific reference to Dr Smith’s appointment as “replacement” for Dr Kelly with “a handover process commenced in June 2014”.  These are official reports signed off by an independent panel chair.   

50.  There is nothing in the AAR or the Statutory Guidance which makes provision for any formalities in terms of the manner of appointment of an AMA.  I have not heard oral evidence from Dr Smith herself but there is no challenge from any quarter in relation to her evidence or the facts to which she and others have deposed.  In the circumstances I have come to a clear view that Dr Smith was indeed formally appointed to the role of the adoption agency’s medical adviser and that her appointment took effect from 15 August 2014.  I am also satisfied that she has continued in that role to the present time.  In these circumstances, I find that SCC as an adoption agency in not in breach of its obligations under regulation 8(3) AAR.

I.                   Applicable legal principles relating to adoption as established in previous authorities

51.  The ethos which permeates the decision-making process in relation to adoption is the need for care when analysing adoption as a permanency option.

53.  The decision-making process itself engages the parents’ Article 8 rights to respect for a private and family life and thus a ‘proportionality evaluation’ is required as part of the process.  As Re B-S tells us in clear terms, the court must be provided by the local authority with solid evidence of all the realistic options and a clear analysis of the arguments for and against each option.

54.  In relation to the children in the primary cohort in this case, rehabilitation to the birth parents or a placement within the extended family were not considered to be realistic options in any of the cases.  As we shall see, in some of the individual cases, the parents had consented to the making of placement orders knowing that adoption orders would be likely to follow a successful matching process.

55.  The obvious advantages for a child of adoption as opposed to long-term fostering have long been recognised by both child care professionals and the courts.  It provides a child with the security and permanence of a family of his own with parents who are in parental control.  The commitment of an adoptive placement is very different from that of a local authority foster carer (however good his or her proven track record).  The ‘permanence’ of a child who is subject to a local authority care order is at risk in the event of an application by parents for the discharge of that order.  In contrast, once an adoption order is made, it is made for all time.  Once an adoption has been sanctioned by the court, routine life is fundamentally different for a child.  He or she is a child in a new family just like any other child.  The rhythm of his or her daily life no longer includes statutory medical and other reviews and social workers are likely to disappear from view.  Perhaps of greatest importance is the fact that the child achieves an enduring sense of ‘belonging’ which is unlikely to be achieved in the context of long term fostering.  Thus permanency, predictability and the enduring quality of an adoptive placement are all important features to be weighed in the balance:  see Re H (Adoption: Parental Agreement) (1982) 3 FLR 386 per Ormrod LJ at 388, Re V (Children) [2014] 1 FLR 1009 per Black LJ at para 96, and Re LRP (Care Proceedings: Placement Order) [2014] 2 FLR 399 per Pauffley J at para 39.

56.  However, because adoption represents such a fundamental step in any child’s life, proper scrutiny of the process of decision making is an essential and elementary safeguard not only for the child concerned and his or her birth parents but also for society at large.  It is also vitally important that prospective adopters have full confidence in the system and know that they can rely on the information which they are given about a child to be accurate and complete.  The decision to adopt and the commitment which adoptive parents make to a child or children whom they propose to make their own is very significant.  Adoption creates a legal and lifelong bond between a child and his adoptive parents:  it is a decision which needs to be fully informed for reasons which are too obvious to state.  Since the making of a placement order operates as a legal platform for the move to matching and placing a child with an adoptive family, the lens of scrutiny must fall equally on that stage of the process.

59.  Later, in paragraph 70, his Lordship said this:

60.  Re B was decided before the legislative changes were made which ‘stream-lined’ the process of decision making to which I have referred above.  In the cases with which I am dealing, there was no requirement for reference to an adoption panel prior to the ADM’s decision.  The evidence before the court in Re B established that the agency decision maker in that case had reached her final recommendation after giving due consideration to the panel recommendation.  Significantly, she had no opportunity to exercise a fully informed independent judgment of her own in Re B because she accepted in evidence that she had never seen one of the reports central to that case which had been prepared by a very well known and respected consultant psychiatrist.  It follows that neither she nor the recorder at first instance could have known whether or not this important and (as the Court of Appeal accepted) highly material information might have led her (as the agency decision maker) or the adoption panel to reach a different conclusion as to outcome.  The purpose of the legislative framework in this respect is to ensure that all relevant and material information is placed before the decision maker in order to ensure that proper consideration can be given to each child’s particular circumstances and best interests before the draconian step of permanent and legal separation from his or her birth family is reached.  That plainly was not what happened in Re B.

61.  Wall LJ made it clear that, where there was a material omission in the process which led to decision making by a local authority or adoption agency, the route of retrospective decision making was not open to a court.  In Re B, he held that the recorder could not substitute his own decision as a judge for that of the agency decision maker on the basis that he had heard expert evidence in order to address the significant unfilled space which clearly existed when both the panel and the decision maker recommended placement for adoption.

62.  The course which Wall LJ endorsed at the conclusion of the appeal in Re B was a referral back to the adoption panel and agency decision maker for reconsideration of their recommendation in the light of all the information, including the “significant” material which was contained in the expert reports.  If the decision remained that placement for adoption was in the children’s best interests, a fresh application for a placement order could be put before the court.

63.  The judgment in Re B contains essential guidance as to the fundamental importance of ensuring that the fullest possible information is available during the decision making process in respect of each child who makes the journey through public law proceedings into the permanence which adoption delivers.  The regulations underpin the need for accurate reports and information precisely because this is the information which will inform the vital stage of decision making by the ADM.  It is also information which will subsequently inform the adopted child who seeks to understand his background and family circumstances in the future.  It is information which will inform the matching process and upon which potential adopters will rely both to inform their decision as to whether or not to proceed and in reaching an understanding of the particular needs of their child as he or she develops physically, emotionally and psychologically in their care.  In Re B Wall LJ concluded that the decision which was taken was no more than a “simple rubber stamp” exercise imposed by the Director of Social Services who had no real knowledge of the case and who made the decision on the basis of inaccurate information which was supplied to the panel.  His Lordship made important recommendations which were designed to ensure that material information concerning a child’s health for the purposes of compliance with Regulation 17 should be properly disseminated to panel members in advance of a panel meeting.  At paragraph 84 he said:

“The essence of the guidance, in my judgment, must be that panel members should be fully and properly aware of all the available material relevant to their decision. It will plainly be a matter of judgment for the local authority medical adviser to the panel in each case to decide whether or not panel members need to read any expert report, or whether or not a summary of it will suffice.  There is, however, a clear duty on the local authority which is conducting the care proceedings to ensure both that all relevant material is available to the Panel, and that the material placed before it is accurate.  As important, it seems to me, is the proposition that the decision to proceed to apply for a placement order is properly made, and minuted.”

64.  The obligation on SCC in this case as an adoption agency to place a case before its adoption panel no longer applied because of changes to the law but in my judgment the observations made by Wall LJ in relation to the need for accurate and up to date information will continue to apply to any decision taken by its agency decision maker.  In this context, sufficiency and materiality are key because without those elements any decision reached is likely to be flawed and unreliable.  It is not difficult to see why the Court of Appeal in Re B found itself unable to uphold the placement order given that it was made on a fundamentally flawed basis in ignorance of important information which was likely to be highly material to the decision making process.

67.  Thus, whilst stressing the mandatory nature of the AAR 2005, Ryder LJ did not say that any and every breach would be fatal to a lawful decision to place a child for adoption.  He said nothing which represented a departure from the careful reasoning of Wall LJ in Re B which I have set out above. What Ryder LJ did in the second part of the paragraph I have set out above was to explain what information the agency decision maker would have as a result of compliance with the regulations in order to inform his or her decision.  That information was necessary and material to a lawful placement decision and that was why compliance was deemed to be mandatory.

69.  I shall need to return to aspects of the law in the context of the specific submissions made by counsel on behalf of the parties.  Before considering those submissions, it is important to set out precisely what the court is being asked to do in the context of this particular hearing.  First and foremost, I am being asked to determine the applications for declaratory relief in respect of the ten children who now fall within the primary cohort category.  Their cases are all urgent given the stage of the pathway to permanence which they have reached.  Decisions for them cannot wait for the time it will inevitably take to consider the significantly greater number of children who fall within the wider cohort of those affected by SCC’s admitted failings.  A decision in relation to the legality of the primary cohort children’s placement orders will involve a determination of the legal approach or route to determining whether the declarations sought can lawfully be made.  In the light of the jurisprudence to which I have referred, I shall need to consider whether those breaches were material and impacted upon the decisions reached by the ADM in each of the ten cases so as to render them, or any of them, materially flawed and unlawful.  For these purposes I have been provided with the complete files of material provided to the relevant agency decision maker for each child.  Depending on the approach which I determine to be the correct route to lawfulness in this case, it may prove necessary to analyse that material in the context of each decision before I can declare the placement decisions and the orders which flowed from those decisions lawful or unlawful.  In the light of the concessions which are now made by SCC, there is no need for an analysis or findings by the court as to whether the local authority has breached regulations 15 and 17 AAR: those breaches are admitted.    

70.  Because I have not had the time within the context of this hearing to expand the scope of the court’s enquiry into oral evidence which would be needed to establish how the breaches occurred, why they occurred, and who was responsible for them, I cannot in the scope of this judgment apportion responsibility for the situation in which we find ourselves.  I have already indicated that lessons must be learned from this wholesale systematic failure.  In order to put right past wrongs, there has to be a full understanding of why those wrongs arose.  There is no overall consensus between the various professionals whose evidence is before the court in relation to that issue.  I indicated at the pretrial review in September this year that I would need to provide within my ‘primary cohort judgment’ a context for the reasons why declaratory relief was being sought for these children.  That I have done from the foot of the concessions which SCC properly makes.  Put simply, those failings represent a failure on the part of the adoption agency to understand and apply its regulatory obligations.  In this context, the failure may well be properly described as institutional failure rather than failure by any one individual within that institution.  What all parties are agreed upon is the need for an approach which does not further prejudice these particular children in relation to their path to permanence.  As I emphasised during the course of submissions, neither expediency nor welfare-driven determinations can play any part in deciding what are essentially questions of law.

71.  It is against that background that I turn now to consider the detailed legal submissions which have occupied the entire hearing this week.

K.        The parties’ submissions

SCC: the local authority acting as the adoption agency in this case

72.  Mr Goodwin QC on behalf of SCC acknowledges that there are no statutory or regulatory criteria to assist the court in determining the correct approach to the Part 18 applications.  Relying on the decisions in Re B (per Wall LJ), Re S (per Ryder LJ) and Re N (per Peter Jackson LJ), he starts from a position that not every regulatory breach requires the resulting placement order to be set aside.  He submits that the critical consideration in this context is whether there has been a material error in the ADM’s decision making.  He points to the submission in Re B made by BAAF, accepted and adopted by Wall LJ, that the validity of any decision to place a child for adoption could be called into question “depending on the importance of that information in the context of the particular case”.  Thus, whilst he accepts that the AAR irregularities are established in this case because of a lack of form, he submits that the lawfulness of the resulting placement orders will depend upon an analysis of substance.  In support, he draws upon the distinction in Halsbury’s Laws between statutory or regulatory schemes which, on the one hand, require strict and total compliance and those, on the other hand, which permit substantial compliance.  He invites me to find that, given the pervading ethos of ACA 2002 and the need for robust, early decision-making for permanency, Parliament cannot have intended a breach of the regulations per se to invalidate a placement decision in circumstances where the irregularity had no material impact upon the decision.

74.  Mr Goodwin QC accepts that there have been no breaches of natural justice in these cases because the children (through their Guardians) and the natural parents have been afforded the opportunity to make representations about their futures.  However, he points to the fact that the rules of natural justice embrace more widely the presumption that when any administrative decision is taken, it must be taken fairly.  He relies on an extract from Halsbury’s Laws of England (Vol. 61A (2018) Chapter 2(3)(iv)(A)(30)):

“The duty to act fairly is highly flexible.  Although these two rules must normally, though not invariably, be observed, the precise procedure to be followed in a given situation depends on the subject matter of the decision or adjudication and on all the circumstances of the case.  In general, when determining what the content of the obligation to act fairly should be in any particular case, the courts have had regard to factors such as the importance of what is at stake for the individual and society, and the effect of the obligation on the decision-making process.”

75.  Further, Mr Goodwin QC relies on the analogous principles governing judicial review and the two questions: (i) has there been a material error of fact, or (ii) a breach of procedural requirements?  Again, he relies on Halsbury’s Laws of England Volume 61A Judicial Review and the proposition that:

“In exercising their functions, public bodies evaluate evidence and reach conclusions of fact.  The court will not ordinarily interfere with the evaluation of evidence or conclusions of fact reached by a public body properly directing itself in law.  The exercise of statutory powers on the basis of a mistaken view of the relevant facts will, however, be quashed where there was no evidence, or no sufficient evidence, available to the decision-maker on which, properly directing himself as to the law, he could reasonably have formed that view.  The court may also intervene where a body has reached a decision which is based on a material mistake as to an established fact.  Although the general rule is that a judicial review is determined on the basis of the material that was before the decision-maker where it is alleged that there has been a mistake of fact fresh evidence may be admitted.”

76.  Halsbury goes on to note that:

“the court adopts a different approach where the existence of a state of affairs is a statutory precondition to the jurisdiction of a public body.  Where the existence of such a state of affairs is put in issue, the decision-maker must determine that issue, but his determination is subject to review by the court.”

77.  As Mr Goodwin QC points out, in relation to each of the primary cohort children, properly formulated medical reports under regulations 15 and 17 are not a jurisdictional precondition to the ADM’s exercise of her power to determine that a care plan for adoption ought to be advanced by the adoption agency.  Applying this reasoning, he proposes that the test which this court should apply is whether there was “no evidence, or no sufficient evidence, available to the decision-maker on which, properly directing [herself] as to the law, [she] could reasonably have formed that view”.

78.  The next stage proposed by Mr Goodwin QC is the question as to whether the procedural irregularities under regulations 15 and 17 vitiate the ADM’s approval of an adoptive care plan for each of these children and, in turn, the placement orders made by the court.  Whilst the Part 18 applications are directed towards the lawfulness of the placement orders approved by the court, and not the ADM’s decision, the relationship between the two and the ADM’s decision to advance a care plan for adoption is obvious.  I have not heard specific submissions from anyone on the point but it appears to be accepted that, in each case, the court proceeded in ignorance of the procedural irregularities.  This is not a point which I can determine in respect of each of the ten cases with which I am dealing in this judgment and I have not been asked to do so.

80.  Herein lies the essence of Mr Goodwin QC’s argument which is supported by Mr Garrido QC on behalf of the CCG.  They submit that, as Halsbury’s Laws confirm, some aspects of procedural rules are always likely to be regarded as mandatory (for example, whether or not a panel is quorate; whether a decision maker is properly qualified; the obligation to give reasons for a decision and to provide a framework for rights of appeal; the unauthorised sub-delegation of power; and breach of rules of natural justice).  Whilst this is not an exhaustive list, they submit that it highlights the very different considerations which arise in this case where non-compliance involves a failure to compile and present information in a prescribed form.  In this situation they submit that the court’s focus needs to be on the sufficiency of the information before the decision maker and the extent to which the underlying substance of that information, viewed in the round, met the procedural requirements of the relevant rule or regulation.  If that information provided the decision maker with details of all, or a sufficiently substantial part, of the facts and matters which the regulations specify as material to the decision in question (here, whether to recommend that a child should be placed for adoption), the absence of ‘form’ may be immaterial to the validity of that decision.

81.  That submission is buttressed by the passage from Re B (above) in which Wall LJ accepted and adopted the CAFCASS/BAAF submission to the following effect:

“5.     It is our view that if the panel made its decision based on incomplete and possibly incorrect information, the validity of their decision could be called into question, depending on the importance of that information in the context of the particular case.  If the lack of information was significant then it is our view that the case should have been referred back to the panel for them to reconsider their recommendation in the light of all the information.” [emphasis supplied]

82.  Reliance in this context is placed upon paragraph 2.54 of the 2013 Statutory Guidance which requires the adoption agency to consult with its medical adviser “to ascertain whether the health information already obtained is sufficient, and sufficiently up to date, to fulfil the requirements of the regulations and the need for full information for the child, the adoption panel/decision maker and the prospective adopter”.  Thus, Mr Goodwin QC and Mr Garrido QC invite me to consider whether the Initial Health Assessments (IHAs) and the Newborn and Infant  Physical Examination reports (NIPEs) for the primary cohort children which were in front of the ADM in respect of each of these primary cohort children contained sufficient information for the purposes of substantial compliance with the regulations.

83.  In this context, they submit that interests arising under the Human Rights Act 1998 and ECHR are engaged since it is unlawful for a public authority to act in a way which is incompatible with those rights.  In terms of the parents’ and children’s Article 6 rights, they make the point that the admitted breaches of regulations 15 and 17 have not, within an Article 6 framework, affected the essential fairness of the ADM’s decision-making.  The parents’ and children’s views (where they were old enough to express them) were made known to the ADM through the volume of social work statements and reports from the experts and the children’s Guardians.  The Article 8 rights of the parents are clearly engaged in any decision to place a child for adoption.  They submit that there will have been no Article 8 breach in any of the ten cases before the court if the court reaches the conclusion that the procedural irregularities would not have affected either the substance of the adoption agency’s planning or the court’s determination that a placement order was in that child’s best interests.

Additional submissions made on behalf of the CCG

84.  Mr Garrido QC on behalf of the CCG acknowledges the breaches of regulation 15(2) in that SCC failed to obtain (i) a medical examination of the child and a written report of that examination; and/or (ii) the opinion of the agency’s medical adviser that an examination and health report was not necessary.  He also accepts a breach of regulation 17(1)(b) in that SCC (through the ADM) failed to obtain the required summary of the child’s health which should have been supplied by the medical adviser for inclusion within the child’s permanence report.  He offers an explanation drawn from the written evidence in relation to the pressures which were placed upon Dr Smith (the agency medical adviser) in the discharge of her responsibilities in the reporting procedure.  He submits, with justification in my view, that at the heart of the problem appears to have been ignorance of the precise regulatory requirements on the part of the agency.  He points to the evidence which is now available from Sarah Ashe, the designated nurse for looked after children, who has been able to shed considerable light on the nature and extent of the health information which was available to Claire Winter, the ADM, in respect of the primary cohort of children.

85.  On behalf of the CCG he accepts the submission made by Mr Goodwin QC that Re B, whilst clear in its expression of the need for compliance with the regulations, does not close down the opportunity which this court has to grant declarations of lawfulness in accordance with the Part 18 applications which are before the court.  He relies upon the clear distinction which was drawn by Wall LJ between breaches which have a material effect on outcome and those which do not.  In relation to similar warnings about the need for compliance articulated by Ryder LJ in Re S, Mr Garrido QC invites me to find that nothing in his Lordship’s judgment suggests that the principles of Re B required revision or amendment in terms of the materiality issue.  In a similar way, he adopts the submissions made on behalf of SCC in relation to the support for this approach as they can be drawn from the general principles of judicial review.

86.  There is, however, a divergence of approach between Mr Goodwin QC and Mr Garrido QC in relation to the breaches of regulation 15(2) which concern the provision of health information. Whilst open to remedy, Mr Garrido QC identifies these as breaches of substance rather than form because:-

(i)                 at the time she made her decisions the ADM did not have independent expert medical advice as to whether all the other health information which was available to her was sufficient for the purposes of making her decision;

(ii)              that breach admits the possibility that Dr Smith, as the agency’s medical adviser, may have taken a different view to the adoption agency or Ms Winter in discharge of her function as ADM as to whether the IHAs or NIPEs were sufficient in any particular case;

(iii)            it follows that there is at least the potential that, in any one or more of the particular ten cases with which the court is dealing, Ms Winter was deprived as ADM of the opportunity of reviewing and considering (a) a report flowing from a full medical examination of the child undertaken by a registered medical practitioner pursuant to regulation 15(2)(a); and (b) any further medical or other examinations and reports which might be required pursuant to regulation 15(3).

88.  In considering the effect of these breaches in relation to the provision of health information to the ADM in this case, Mr Garrido QC poses four questions which the court should consider in order to determine the consequences of the breaches and thus the extent to which the ADM’s decision can be said to be materially undermined or flawed.

(1)   Is it likely that the agency medical adviser for any particular child would have requested an examination of the child and a medical report pursuant to regulation 15(2) in the light of the health information which was then available ?

(2)   If the answer to that question is yes, is it likely that such an examination and report would have provided additional health information about the child which would have undermined the ADM’s decision in relation to placing the child for adoption ?

(3)   Is it likely that the agency medical adviser would have requested further reports under regulation 15(3) ?

(4)   Finally, is it likely that the agency medical adviser would have expressed an opinion in any regulation 17(1)(b) health summary that would have undermined the ADM decision to place for adoption ?

89.  He submits that the court can answer each of these questions by reference to the pre-adoption medical reports that were written by the agency medical adviser albeit that those reports were produced after the ADM decision.  He submits that this is a permissible course given that these pre-adoption reports were written within a short period of weeks (in some cases months) after the ADM decision.  In these circumstances it is highly unlikely that the agency medical adviser would have formed a different view following a regulation 15 request or in a regulation 17(1)(b) summary from that which she expressed in the pre-adoption medical report.  In none of the ten cases with which I am dealing is there a contra-indicator to adoption based upon a health reason.  Mr Garrido QC invites me to accept the evidence of Dr Smith and the pre-adoption medical reports themselves to reach a conclusion that those pieces of work provide a comprehensive overview of each individual child’s health needs.  In particular, they included all the relevant information which would have been placed before the ADM had regulations 15 and 17 been complied with, including the focus on the child’s future health care needs which are central to the regulation 17 health care summary.  There is evidence in the written statement of Sarah Ashe, the designated nurse for looked after children, which confirms the comprehensive list of health information which was available to the ADM together with her own clinical records in respect of each child.  She further confirms that the pre-adoption medical review for each child was completed with reference to all the available health information including, specifically, that which is required pursuant to regulations 15 and 17.

90.  If the court decides that it can safely reach a conclusion that the breaches of regulations 15 and 17 were immaterial to the ADM’s decision, Mr Garrido QC invites me to make the declarations sought by SCC.

91.  As to the apportionment of responsibility for the admitted breaches, Mr Garrido QC submits that the Concessions document which SCC has produced now adequately reflects where the obligation lay, and lies, for compliance with the AAR for the purposes of the issues which the court has to resolve at this hearing.  He agrees that to go beyond that would require the resolution of some obvious and significant factual disputes which the court is not in a position to determine without oral evidence.

Submissions made on behalf of the Guardians for the primary cohort children

92.  Ms Cleo Perry QC and Ms Elizabeth Willsteed appear on behalf of each of the Guardians for the primary cohort children.  They have only recently been instructed and it is clear that, together, they have undertaken a significant amount of work with their individual clients in order to prepare for this case and to preserve the confidentiality of each individual child involved in this litigation.

93.  Their submissions in relation to the primary cohort children can be summarised thus:-

(i)                 Compliance with the regulations is mandatory and sanction for breach lies with OFSTED, the court and potentially the Department of Education.

(ii)              The breaches of regulations 15 and 17 amount to a systemic failure within SCC.

(iii)            During the relevant period in which the breaches occurred in relation to all the children affected (from August 2014 until April 2021), none of the professionals involved appears to have been aware that they were in breach of the regulations.

94.  The position adopted on behalf of all ten children within the primary cohort is that each child’s journey through the system should be the subject of minimal further disruption and, moving forward, every lawful step which can be taken should be taken to ensure that he or she does not lose the opportunity of permanency as a result of these proceedings.  To this end Ms Perry QC seeks the following findings:-

(i)                 The regulations have been breached.  The decision making process utilised by SCC was flawed because of the breaches of regulations 15 and 17.

(ii)              Those breaches were significant and arose as a result of systemic failure within SCC.

(iii)            During the relevant time period, none of the professionals involved was aware that they were in breach of the regulations.

(iv)             All of the children within these proceedings have been materially prejudiced by the breaches and failings of SCC because they have been in a state of stasis since April 2021 with their prospects of permanence jeopardised as the weeks pass.  Compliance with the regulations would have avoided this prejudice.

95.  In terms of the legal test which the court should apply, Ms Perry QC submits that the test should not be the “substantial compliance” and/or “materiality” test proposed by Mr Goodwin QC and Mr Garrido QC.  Instead she submits that the court should concentrate upon rectification or correction of the original decisions.  Through a process of interpretation of the statutory conditions, undertaken in accordance with the ordinary rules of construction in the context of the evidence in this case, she submits that automatic unlawfulness is not necessarily the outcome for these children.  She invites me to rule on the Part 18 applications for declaratory relief since remittance for a further welfare analysis is likely to have a significant and detrimental impact on the progress of the prospective matched adoptive placements which are waiting for these children and thus parentage is at risk.

96.  In relation to the evidence which is now before the court, Ms Perry QC makes some important observations in relation to the extent of compliance with AAR.  As I have said, within these proceedings SCC has disclosed the children’s permanency reports and records of the decisions for each child.  Each decision record appears to indicate that the CPR and the medical records have been considered (through the insertion of an ‘x’ in the designated box).  There are no indications on the face of these records which, without disclosure and scrutiny of internal minutes, indicate that SCC as an adoption agency was in breach of the regulations.  There was thus nothing which would appear to have alerted the court to the existence of these procedural issues when it approved and sanctioned the placement orders for the primary cohort children.   

100.     Describing the widespread systematic failures of compliance and regulation in Re A and Others as “alarming and shocking” and resulting from “widespread incompetence across the sector on a scale which must raise questions as to the adequacy if not of the HFEA’s regulation then the extent of its regulatory powers”, Sir James Munby nonetheless trod a path which enabled him to make the declarations sought in respect of several children whose legal parenthood was in issue.  Having considered each individual case from the foot of the evidence available to the court, his Lordship was able to make findings that the deficits in the strict procedural requirements could be corrected or rectified by a finding that those requirements in their various elements were met even if not recorded and maintained as records on the correct forms.

101.     In relation to the doctrine of rectification, Sir James Munby P said this:-

“47.   I start with rectification.  As a matter of general principle, I can see no reason at all why a Form WP or a Form PP should be said to be, of its nature, a document which cannot be rectified.  The fact that it is a document required by statute to be in a particular form (that is, “in writing” and “signed by the person giving it”) is, in my judgment, neither here nor there: compare the many cases where rectification has been decreed of conveyancing or trust documents similarly required by various provisions of the Law of Property Act 1925 to be in a particular form.  Nor does it matter, in my judgment, that a Form WP or a Form PP is used as part of, and, indeed, in order to comply with the requirements of, a statutory scheme.  There is, for example, nothing in the language of any of the relevant provisions of Part 2 of the 2008 Act to suggest that rectification is impermissible. Contrast, for example, the well established rule that the Articles of Association of a company will not be rectified because rectification would be inconsistent with the provisions of the Companies Acts: see Scott v Frank F Scott (London) Ltd [1940] Ch 794.  So, in my judgment, if the criteria for rectification are otherwise established, a Form WP or a Form PP can be rectified.

48.     Quite apart from the equitable doctrine of rectification, the court can, as a matter of construction, ‘correct’ a mistake if (I put the matter generally, without any detailed exegesis) the mistake is obvious on the face of the document and it is plain what was meant.  The reported examples of this are legion and stretch back over the centuries.  They include cases of clear misnomer.  Again, there is, in my judgment, no possible objection to the court taking this course in relation to a Form WP or a Form PP.”

102.     In paragraph 59 of his Lordship’s judgment, he said this:

“What is meant by a direction saying that a clinic “must” use the Form WP and the Form PP? Suppose that what are completed are copies of Form WP and Form PP which, in their operative parts, follow to the last dot and comma the text of the required forms, but which omit all the explanatory text which is included in those required forms.  Can Parliament really have intended that to be fatal?  Surely not.  So, surely, what one is looking for is compliance with the substance not slavish adherence to a form.  Is parenthood to be denied by the triumph of form over substance?  In my judgment, not.”

103.     He continued in paragraph 61,

“In my judgment failure to use Form WP or a Form PP does not invalidate a consent which would otherwise comply with [the relevant sections in the 2008 Act].  I add only that this approach accords with the general thrust, if not with the specific detail, of Theis J’s analysis in X v Y.”

104.     In paragraph 63, he set out his conclusions of principle that:

“i)         The court can act on parol evidence to establish that a Form WP or a Form PP which cannot be found was in fact properly completed and signed before the treatment began;

ii)      The court can ‘correct’ mistakes in a Form WP or a Form PP either by rectification, where the requirements for that remedy are satisfied, or, where the mistake is obvious on the face of the document, by a process of construction without the need for rectification.

iii)     …..

iv)     It follows from this that the court has the same powers to ‘correct’ a Form 1C as it would have to correct a Form WP or a Form PP.”

107.     In summary, Ms Perry QC submits that, subject to the court’s findings, there are various pathways to rectification of the errors in this case.  She supports the granting of the declarations sought by SCC in respect of each of the primary cohort children whom she represents although she diverges from the path laid out in the road map presented to the court by Mr Goodwin QC and Mr Garrido QC.

Submissions made on behalf of CAFCASS Legal as Advocate to the court

108.     Ms Giz and Mr Niven-Phillips who appear on behalf of CAFCASS Legal as advocate to the court have made it clear that they do not seek or support any specific outcome in this case.  Their role has been to assist the court to identify the legal, practical and ethical issues which arise in this case and to highlight, where appropriate, the counter argument to the position advanced by SCC and on behalf of the children through the Guardians which potentially might have been pursued by a parent.  As I have indicated, none of the primary cohort parents has sought to intervene in these proceedings nor has any sought to make representations as to the way forward.  None has sought to take up the offer of funding for legal assistance which accompanied SCC’s formal notification of these Part 18 applications to each (bar one) of the parents potentially affected.

109.     As to the form which this hearing has taken, Ms Giz accepts that the Concessions document produced by Mr Goodwin QC on behalf of SCC now provides a sufficient context for the nature and extent of the breaches to enable this court to proceed without the need for oral evidence in respect of the primary cohort determinations.  However, she submits that these concessions or admissions by themselves do not resolve a number of factual issues in relation to systemic or policy failings by SCC in discharging its functions as an adoption agency.

111.     Dealing first with the breach of regulation 15, Ms Giz submits that, whilst the IHAs and NIPE assessments available to the ADM would undoubtedly have provided valuable information about a child’s health and needs, they will have been commissioned or received at the time when the child became a looked after child on entering the care system or, where parental responsibility was not shared, as a result of parental agreement.  They will not have been commissioned by the local authority in its role as an adoption agency which is what is required by the AAR.  In this case, there is significant reliance by SCC on the existence of IHA reports for ten of the original primary cohort of children, a NIPE report for one and a paediatric assessment for another.  In due course I shall need to examine, in each case, precisely what information the ADM had in relation to each child at the time decisions to place for adoption were made.  The point, however, is well made by Ms Giz that the provision of this information, however full in its content at the time, does not absolve a local authority of its obligation to consult with the agency medical adviser in order to seek a health assessment and a written report.  It is only when an AMA confirms that a regulation 15(2) assessment or examination is not required in respect of a particular child that compliance is achieved.  As Ms Giz puts it succinctly, this is an expert medical decision and not a decision for a social worker who prepares the child permanence report or for Ms Winter in her role as ADM on reviewing the documents placed before her.  Whilst the opportunity to seek further assessment or tests as provided by regulation 15(2) may have been lost as a result of the admitted breaches in each case, Ms Giz submits that the court can nevertheless go on to consider whether it can legitimately be said that there would not have been any need for further tests or assessment had the agency medical adviser been asked to assess the children and provide a report.

112.     Ms Giz highlights the fact that, whatever processes were adopted by the local authority in its capacity as an adoption agency, they were undertaken apparently in ignorance of the requirements of regulations 15 and 17.  In this context she invites the court to consider the extent to which the IHA and NIPE reports, together with the other assessments available in each individual case, can be said to amount to “substantial compliance” with the regulations.  She highlights the fact that the 2013 Statutory Guidance emphasises the central importance of the accuracy of the child’s permanence report for the reasons to which I have already alluded in paragraph 63 above. She draws the attention of the court to the document setting out the National Minimum Standards for Adoption published by the Department of Education in July 2014 which stresses the need for compliance with the two regulations (15 and 17) in order to ensure that a number of different factors are taken into account in the context of decision making.

113.     In the context of the children’s position through their respective Guardians, Ms Giz makes the point that the rectification or correction route involves (potentially) the rectification of a court order.  She submits that it is conceptually difficult to rectify a situation or a document such as a court order on the basis of something which did not happen.  In terms, she accepts that the “substantial materiality” route to legality of the placement orders may be the more palatable route if it is based upon an overview of the granular detail of the information available to the ADM at the time she made her decisions.  That route requires caution in terms of the extent to which that information, whatever it amount to, was properly evaluated and open to the birth parents, the children’s Guardians and, ultimately, to the court.

114.     Whether the court is looking at the issue of legality through the lens of “substantial compliance” or “materiality to decision making”, Ms Giz submits that the failures in relation to regulations 15 and 17 were substantial.  In this context she points to the fundamental failure of the ADM to engage in an overview at the time of the decision making; the displacement by the ADM of the onus to seek that expert medical review on the basis that she would exercise that discretion; and the apparent ‘policy’ or value system which may have informed the ADM’s decision making that the permanence achieved by adoption should be open to all but the most extreme cases where a child’s health issues were likely to be life-limiting.  In relation to materiality, Ms Giz highlights the significant distance between that approach and the non-linear analytical approach demanded by Re B-S.

115.     In relation to the approach adopted by Mr Garrido QC on behalf of the CCG, Ms Giz submits that, whilst post-adoption medical reports obtained after the making of a placement order cannot rectify failures to comply with the AAR in terms of ADM decision making, information obtained after the order is made may provide evidence of the legality of the decision at the time it was made.  I regard this as an important distinction.  I accept that it is not open to me in the context of this hearing to follow the course which the recorder took in Re S-F.

116.     In conclusion, Ms Giz submits that, whilst it is open to the court to pursue a route to lawfulness which has not yet been excluded by any of the appellate decisions to which reference has already been made, the court must exercise caution.  In this context, she contends that any policy considerations in relation to the wider cohort of children affected by SCC’s failures must be ignored.  In those cases, or at least a great many of them, adoption orders have been made and different legal and policy considerations arise.

L.         Discussion and analysis

117.     I approach my task in this case from the foot of clear reassurances from Mr Goodwin QC that the failure to observe the requirements of regulations 15 and 17 were aberrations in terms of SCC’s compliance as an adoption agency with the body of the AAR.  Whilst it is outside the remit of this first stage judgment in this case to identify exactly what has gone wrong in the wider context of systemic failure, the court has received an assurance that the wider regulatory framework of the AAR informs the adoption process and procedure in Somerset.  Mr Goodwin QC told me that what is likely to lie at the heart of these issues is a lack of training and a consequent failure to understand what was required.  He reminds me that in relation to each of the ten primary cohort children, by the time of the issue of each placement application, the ADM had before her a child permanence report which contained an internal analysis of the realistic placement options for the children which was B-S compliant.  Furthermore, by the time of each ADM decision to recommend placement for adoption as the appropriate outcome for each child, there was professional unanimity that rehabilitation with the birth family was not a viable option for any of these children.

118.     In terms of the wider cohort of children, I am told that at this point in time there are 36  children who have been placed but for whom an adoption application has not yet been made, or is pending.  A further seven children await the outcome of various matching panels.  Whilst adopters have been identified, matters can go no further until it is known whether their placement orders are legal.  A further six children are placed with foster carers who wish to proceed with an adoption application.  The balance of the wider cohort (some 200 odd children) are the subject of adoption orders.  They stand in a different legal position.  Many have been settled within their adoptive families for a significant period of time, and in some cases for a number of years.  Nonetheless, this illustrates the scale of the underlying problem and the potential consequences of this local authority’s failures for each of these children and their families.  For the purposes of this judgment, I am looking at institutional rather than individual responsibility for the admitted breaches.  In order to go further, as all counsel accept, the court would need to hear oral evidence from a number of witnesses.

119.     In terms of the approach which the court should adopt in approaching the determination of these Part 18 declarations, the following propositions are not in issue as between all counsel:-

(i)                 the court is entitled to consider whether it can legitimately be said that there would not have been any need for further tests and/or assessment of the primary cohort children, or any of them, had the agency medical adviser been asked to assess each child and provide a report; and

(ii)              a survey of the granular detail of the medical and other information which was available to the agency decision maker at the time of her decision to place any one of these children for adoption may lead to a conclusion that a failure to comply with regulations 15 and 17 was not material to that decision; and

(iii)            information obtained after the order is made may provide evidence of the legality of the decision at the time it was made.

120.     None of these factors, taken in isolation or together, detracts in any way from established legal principles that compliance with the statutory framework of regulation laid down by Parliament is mandatory.  It is there for a clear purpose.  It is intended to ensure that decision making in this quintessentially important arena of law is informed by a holistic understanding of all the relevant factors.  It is framed to ensure that no child is placed on the route to a permanent separation from his or her birth family without the fullest appreciation of whether that irreversible step accords with that child’s best interests, not only now but for the rest of his or her lifetime. It is a decision which is fundamental to that child’s future and Parliament has determined that a decision maker should be required to approach his or her task with a full understanding of all the information which shapes and informs that vital decision.

121.     That said, it is clear from the consensus which emerges from the appellate authorities to which I have referred that a breach of the regulations per se will not automatically invalidate, or render illegal, a placement order which flows from a decision which has been reached in circumstances where there has been a breach of, or non-compliance with, the regulations.  The court retains the ability in these circumstances to look at the nature of the breach in order to determine whether the essential quality of the decision-making process has been critically or materially undermined when viewed through the lens of the statutory objective of the regulations.  In this context I agree with the submission made by Ms Perry QC on behalf of the Guardians that it cannot have been the intention of Parliament that a lack of compliance with the regulations in the broader context of the totality of the medical and other information available to the decision maker would automatically render any resulting placement order unlawful.  Whilst compliance is framed throughout the AAR as mandatory, the sanction for non-compliance is not specified.  The underlying policy considerations which informed the formulation of regulations 15 and 17 were clearly designed to ensure, as Parliament provided, that all relevant information was available to the decision maker so as to ensure a solid evidential basis for welfare determinations.  As the preface to the 2013 Statutory Guidance makes clear, non-compliance was contemplated as an exception (in terms, guidance must be complied with “unless there are exceptional reasons which justify a departure”).  That same Statutory Guidance also stresses the importance which was attached by the policy framers of avoiding a situation where compliance led to “unnecessary delay in securing the child’s future”: see paragraph 2.16.

122.     Further, in terms of form, the Guidance is clear that “the compilation of the CPR [child permanence report] itself is not a fresh piece of work but for the most part a bringing together of information that has been gathered already over a period of, probably, several months at least”: see paragraph 2.18.

123.     In terms of the difference in approach in relation to the legal test as between counsel, I accept that we are all proceeding from the basis of the same evidential landscape.  In distinguishing between the different approaches adopted, on the one hand, by Mr Goodwin QC and Mr Garrido QC and by Ms Perry QC and Ms Willsteed, on the other, I accept that each provides the court with a potential route to legality if the underlying facts support such an outcome.  However, in my judgment there is a conceptual difficulty with the route of correction and/or rectification in this case.  In A & Others (cited above) the former President of the Family Division was able to correct or rectify the mistake of recording consent on the wrong form because it was clear that, in each case which he considered “informed consent”, both as a fact and as a legal pre-requirement, existed and had been voluntarily given as required by the HFEA regulatory framework.  The errors in that case were fundamentally errors of pure form and it was clear and obvious from the face of the forms which had been signed in each case what was being provided and what was intended. In my judgment this is a materially different situation from a potential failure to provide relevant information which is prescribed as necessary for a fully informed exercise of judgment on the part of a decision maker.  There is no ‘mistake’ here which can be corrected by an approach which was deployed in A & Others.  This much is clear from what Sir James Munby P said at paragraph 59: “What one is looking for is compliance with the substance not slavish adherence to a form”.  What we have in this case is a series of admitted breaches which go beyond the simple rectification of a form.  The absence of a health report as required by regulation 15(2) over and above the IHAs and initial paediatric reports is an omission which in my judgment is not capable of rectification in the manner proposed by Ms Perry QC.  In conceptual terms it is an omission which goes beyond a failure of form and extends potentially into the realms of substance.  Whether in all the circumstances such failure is fatal to the legality of the ten individual placement orders which are the subject of the Part 18 applications which I am considering is something to which I shall turn shortly.

124.     I fully appreciate that Ms Perry QC adopts this more nuanced approach because it avoids the need to confront head on what even Mr Goodwin QC accepts is a fundamental and systemic failure on the part of SCC to comply with regulations 15 and 17.  In my judgment that exercise cannot be avoided by the adoption of an approach which strains the limits of legal interpretation.  What A & Others does provide is a clear steer to the court that (i) its focus must be on substance and materiality rather than on form, and (ii) that it is permissible, in appropriate circumstances, for the court to look at the evidence which was available from sources outside the prescribed forms in order to reach a conclusion about the actual prevailing circumstances at the relevant time.  To that extent, the decision of the former President is an essential part of the judicial road map in determining the questions which have to be answered in this case.   However, as the authorities make clear, it is impermissible for the reviewing court to look to information obtained subsequent to the decision under scrutiny (and thus missing at the point of decision-making) to provide retrospective legality for an otherwise unlawful decision.  In this context, it is important to focus upon the nature of the declarations which are sought by SCC.  The declarations of lawfulness relate to the placement orders which flowed in each case from a judicial decision. Each of those judicial decisions was based upon the evidence which was put before the court which included, importantly, the decision of the ADM as to outcome for each of these children and the evidential basis for that decision.  That is why the form of the draft declarations before the court includes a recital to the effect that the court has determined in each case that “the Agency Decision Maker’s decision that [the child in question] ought to be placed for adoption was not … vitiated by any material error or misunderstanding”.   Thus whilst the full pre-adoption medical reports obtained after the decision to place for adoption will have provided the court making the placement order in each case with information which the judge needed to exercise an independent judicial function in the context of Ms Winter’s/the ADM’s original decision, they cannot in my judgment be used retrospectively and without more to justify or, in this context, give legal currency or validity to an otherwise illegal decision.  The court must consider whether, and to what extent, information available in the context of those reports was also available to Ms Winter in whatever form at the point when she, or another ADM, decided that adoption was the appropriate outcome for any one of the ten children with whom I am presently dealing.  To that extent I depart from this aspect of Mr Garrido QC’s submissions.  I do not consider that the pre-adoption medical reports and the information contained within them are irrelevant to the court’s survey of the evidence.  However, I do not think they can be used to cure any substantial or material defects in the ADM’s decision making process if indeed there were such errors in any of the cases I am considering.  Whilst this course and his proposed solution would have provided the court with a clear route out of the dilemma with which it is confronted, I do not consider it to be a route which I can properly take.

125.     I agree with Ms Giz that an evaluation of “substantial compliance” involves an analysis of the decision maker’s state of knowledge at the relevant time.  I accept without reservation that there are conceptual difficulties in aspects of adopting that test.  For example, in circumstances where the overview of the agency medical adviser was never sought by Ms Winter because she was unaware of that requirement, how can it be said that there was substantial compliance with regulation 15(2) which requires medical input?  Notwithstanding those difficulties, I regard it as essential for this court to conduct a factual analysis of the circumstances of each of the ten primary cohort children’s cases in order to reach conclusions about the circumstances in which decisions for them were made and thereafter whether each of those decisions was lawfully made on the basis of substantial compliance with the regulations.  Put another way in the circumstances of this case, was there sufficient information available to the decision maker at the time of his or her decision to represent material or substantial compliance with the regulations?  Did the agency decision maker have available at the relevant time sufficient information, including medical information in relation to each child, so as to enable a fully informed decision to be made ?  It is in this context that I accept and adopt the relevance of the questions posed by Mr Garrido QC as set out in paragraph 88 above.  It is that evaluation to which I shall shortly turn.  Before doing so, I propose to set out aspects of the local authority’s evidence (which is not challenged) in order to provide a context for that specific evaluation.    

Dr Carol Smith: the agency medical adviser

126.     Dr Smith is employed by Somerset NHS Foundation Trust as a specialist community paediatrician.  She is the region’s designated doctor for looked after children and, as I have found, has been the appointed medical adviser to Somerset in its role as an adoption agency for over seven years.  She has almost twenty years’ experience as an expert paediatrician.  In the context of her community paediatric role she has provided the following description of her duties:

“… I provide clinical assessment, diagnosis and management of children from birth to 18 years with developmental disorders and disabilities, complex health needs, (including end of life care), and behavioural presentations of neurodevelopmental disorders (e.g. Autistic Spectrum Condition, ADHD).  The work includes safeguarding, and specific to my role, the completion of statutory Initial Health Assessments of Children Looked After.  Community Paediatric work frequently requires multi-agency working to ensure that the health and wellbeing needs of children are met.  I manage a clinical workload independent of oversight by Consultant Colleagues.  There is a requirement for audit and quality assurance within the work, alongside the teaching of medical students and paediatric colleagues.  Throughout my working time as a Paediatrician, I have worked with Children Looked After and children who are adopted, who are in long-term foster placements, placed in kinship care, placed under special guardianship orders etc.  I have an extensive knowledge of the specific needs of these children.

127.     As to her role as agency medical adviser to Somerset, she says this:

“I am responsible for collating and interpreting the health and developmental history of Children Looked After, (CLA), and informing prospective carers and he Adoption Panel regarding risk factors for the child’s future health, including family history, intrauterine stress and substance exposure, specific health and developmental needs of the child, and experiences of abuse and neglect.  The report is additionally based on all previous statutory health assessments and incorporates analysis of past medical history including commenting on future implications for the child.  This information is provided in a written report, (the Adoption Medical Review Report), and is also discussed in detail with potential adopters and any accompanying social worker at either face to face or virtual meetings, prior to Adoption Matching Panel (I aim to allow a two-week gap between this meeting and the adoption panel to allow the prospective adopter(s) time to carefully consider the information delivered to them. … I am available to the Adoption Panel for discussion and explanation of any queries or points of concern regarding the health of the child or of the potential adopters.”

128.     Dr Smith’s written evidence highlights a number of issues which arose in connection with the performance of her role as agency medical adviser including funding issues and time pressures.  This ‘primary cohort’ judgment is not the appropriate vehicle for a forensic investigation into these acknowledged failings and there is in any event a factual divergence between some of the local authority professional witnesses as to the root cause of these failures.  These are issues which I cannot determine as facts because there was agreed to be insufficient time for the court to hear oral evidence on these issues.  What is agreed is that, other than requests made to Dr Smith for medical reports channelled through a local authority administrator, Ms Williams, often at short notice, until October 2018 when a new regional adoption agency was launched (Adopt South West), Dr Smith received no requests for ADM medical summaries from Ms Winter.  After 2018, greater focus was given by the new agency to the requirement to provide timely adoption medical reviews to prospective adopters.  For these purposes a new post was created.  In February 2019 Sarah Ashe was appointed as the designated nurse for looked after children.

Sarah Ashe: designated nurse for looked after children

129.     Sarah Ashe has provided a written statement in which she confirms that she was unaware that IHAs were regularly being used in lieu of a formal AAR 17 compliant health summary completed by the agency medical adviser.  It was only in April 2021 when these issues came to light that she became aware of this state of affairs.  Ms Ashe states that she worked closely with Dr Smith in her role as agency medical adviser since her appointment in 2019 to ensure that the requirement to provide an AAR 17 compliant health summary as part of a child’s CPR was, and is, included in the job description for the agency medical adviser.  She has explained in her statement that the use of NIPE reports in place of the statutory IHAs, specifically for new-born infants who were subject to care orders from birth and moved immediately to foster placements, was commonplace in Somerset until these events came to light in April 2021.  In relation to the breaches of regulations 15 and 17 in the ten cases of the primary cohort children, she confirms that, in all but two cases, the initial health assessment was completed by either a paediatric registrar (for seven of the children) or a consultant community paediatrician (in one of the cases).  The agency medical adviser provided the initial health assessment in only two of the cases.  Several of the primary cohort children were not physically examined as part of this process because of the restrictions flowing from an acute stage of the Covid-19 crisis although their assessments were delivered virtually using either telephone or video conference facilities.  Furthermore, as Ms Ashe confirms, there were some gaps in the initial health assessments which were provided to Ms Winter in terms of those which were prepared before 2019. 

130.     In respect of the ten primary cohort children with whom the court is concerned, Ms Ashe has conducted a thorough review of all the information which was available to the agency decision maker, Ms Winter.  She has confirmed that in respect of each of them, relevant health information was available to Ms Winter including paediatric reports, unscheduled care attendances, health visitor records and therapy assessments which in some cases predate the IHAs.  The regulation 17 breach meant that none of this information was reviewed by Dr Smith in her role as the agency medical adviser and thus there was no specific consideration of “any need for health care which may arise in the future”.  Ms Ashe further confirms that all the information which would have been provided in compliance with regulations 15 and 17 was subsequently included in the pre-adoption medical reports, each of which did include a specific focus on the child’s future health care needs. All of that information was available to the judge who made the placement orders for each of these children.

Claire Winter: Deputy Director of Children’s Services and adoption agency decision maker for SCC

131.     Ms Winter’s written evidence confirms that she was appointed to the role of ADM in October 2015 when she became the Deputy Director for Children’s Services.  As an adjunct to her role, Ms Winter is assisted by an adoption agency adviser, Jane Poore, who quality assures the adoption process in Somerset including the production of the child permanence reports prepared by the relevant child’s social worker.  Ms Poore is responsible for bringing together and collating all the information which is presented to Ms Winter in her role as the agency decision maker.  The documentation which she sees for these purposes should include not only the CPR and all health assessments and relevant reports which have been generated for the purposes of the care proceedings ongoing in the Family Court up to that point in time. 

132.     In paragraph 16 of her statement, Ms Winter states that:

“In making the Best Interest Decision, I meet with the Adoption Agency Advisor to review the documentation provided and discuss whether an adoption plan is the correct one for the child.  At this point in the process my key focus is to evaluate, from the documents, whether there are any adults within the child’s network who are likely to be able to make the changes needed to care for the child, within a timescale that meets the child’s need for permanence.  This evaluation includes consideration of medical reports from the proceedings and the child’s Initial Health Assessment.  I have never considered a case without any medical information and the Agency Medical Advisor is available for me to contact should I need clarification on any medical issue.”

133.     In paragraph 28 she sets out the result of her overall review of the primary cohort cases in the following terms:

“Having reviewed the cases I am confident that every decision which has been made approving a care plan of Adoption for a child, and then resulting in an application for a Placement Order, has been made in the best interest of the child concerned.  I am confident that whilst medical information in front of me at the time may not have been presented in the correct format, any medical issues surrounding a child’s health were contained within the paperwork which I considered and had been considered prior to this by the Agency Medical Advisor.  These issues would have been taken into consideration when I made my decision to approve a plan of adoption.”

Jane Poore: adoption agency adviser

134.     Ms Poore is a qualified social worker who was employed by SCC between June 2016 and July 2021.  Her role, as she explains in her written evidence, involved acting as a point of reference for all adoption and permanence issues, contact issues, and supporting other specialist child care social workers to prepare child permanence reports.  In this context she provided support to the ADM, Ms Winter, for the purposes of the decisions which were made in relation to appropriate outcomes for children who were travelling through the care system.

136.     She describes the problems already identified by Ms Winter in relation to the constraints on medical adviser time and thus capacity.   She explains that when she was appointed as agency adviser, her ability to list matching panels was being dictated by Dr Smith’s capacity as opposed to assessment time scales.  She further confirms that, before her appointment in 2016, a policy or practice appeared to have been approved whereby the initial health assessment (IHA) prepared in respect of a looked after child could be used in place of a full medical report for the purposes of the ADM’s decision whether to approve a placement for adoption.  Ms Poore explains that this policy was informed by the fact that Dr Smith saw all the children in her role as the lead paediatrician at the hospital where she worked and it was she who wrote the majority of the IHAs.  She confirms that “we never had a case where there was no medical information submitted”.

137.     I pause at this juncture to express not only my surprise but my concern when I read this evidence.  If there was indeed in place a formal policy to mandate, or authorise, a locally-sanctioned derogation from the statutory requirements of the AAR, it was a policy which should never have been adopted.  I propose to say no more at this stage since I have not heard any oral evidence and have only the information given to me by SCC’s adoption agency adviser that such a policy or practice was in place, although it appears to be confirmed on the face of one of the child permanence reports to which I shall shortly come.  What is not clear to me from the narrative accounts of procedure provided by both Ms Winter and Ms Poore is how that practice was reflected in the chronology of the individual cases which make up the primary cohort of children.  I shall need to return to that chronology and the information which was before the ADM when I come to my analysis of those cases.

138.     It is against that evidential backdrop that I turn now to my general findings in this case and thereafter my specific findings in each of the primary cohort children’s cases.

M.        General findings in relation to SCC and the breaches of AAR 15 and 17

139.     In the light of the comprehensive analysis of the statutory requirements of the AAR and the concessions of breach set out in the version of Mr Goodwin QC’s document which I have approved (and annexed to this judgment), I make the following findings which are supported by my analysis of the written evidence:-

(i)                 The requirements of regulations 15 and 17 have been breached.

(ii)              SCC adopted a flawed decision making process in that the agency decision maker proceeded to make her decision and recommendation to the court in the absence of a report from the agency medical adviser;

(iii)            In each case which I am considering in this judgment, the Child Permanence Report was completed without any apparent input from the agency medical adviser.

(iv)             Those breaches occurred over a significant period of time and amounted to a systemic failure on the part of SCC.

(v)               During the relevant period, none of the professionals responsible, including those within SCC’s legal department who had oversight of these matters, appears to have been aware that they were acting, or authorising acts, in breach of regulation 15 and 17.

(vi)             Each of the children within the primary cohort has been materially prejudiced by these regulatory breaches and the systemic failings of SCC in that decisions in respect of their future placements and, in some cases, the process of matching the children with prospective adopters, have come to an abrupt halt to await the court’s decision in relation the legality of their placement orders.  They have thus been in a state of legal limbo since April 2021.  Given the ages of these children, that delay over a period of almost six months is likely to have had a potentially detrimental effect on their welfare and their opportunity to achieve early permanence.

(vii)          If SCC had complied with its regulatory obligations, as it was required to do, this litigation would have been avoided.

140.     Against the background of those general findings, I turn now to my specific findings in each of the ten primary cohort cases.

N.         Specific findings in each case:  the primary cohort children

(i)          Specific findings: SD

141.     SD was born in July 2020 and is now 15 months old.  Her mother reported that the child had been conceived as a result of rape.  She had, and has, no ongoing relationship with the father.

142.     SD has been living with foster carers since she was born.  Care and placement orders were made by the court on 2 February 2021.  Initially SD’s mother moved with her child to a parent and child foster placement but she subsequently left that placement in November 2020 when SD was four months old.  SD then moved to a foster to adopt placement but that broke down very swiftly.  She was then matched with potential adopters. The pre-adoption medical in February 2021 identified a maternal genetic risk of mitochondrial disease which might have a significant impact on her future medical needs and which may be life-limiting.  As a result of that report, those potential adopters decided not to proceed. New adopters have now been identified who are keen to proceed notwithstanding SD’s health issues, about which they have been fully informed.  With the court’s permission, she has now moved to live with her prospective adopters in the context of a foster to adopt placement.  That move coincided with the need to move this child as a result of her current foster carers’ intention to retire at the end of this month and the notice they have given to SCC.

143.     SD’s mother does not oppose adoption.  She has been notified of these Part 18 proceedings and has declined both the offer of legal assistance and the opportunity to make representations at the hearing.  She accepts that SD’s future lies in the security of an adoptive placement.

144.     The ADM decision in this case to place SD for adoption was taken by Ms Winter on 28 November 2020.  When she considered the papers in this case, the ADM had a report dated 18 July 2020 prepared by a paediatrician at the hospital where SD was born.  That was a formal NIPE report.  It confirmed that no abnormalities were recorded at birth but the report also contained a reference to the fact that SD’s mother suffered from epilepsy and associated learning difficulties.  In addition, Ms Winter had the following reports and information:-

(a)   a clinical psychology report in respect of SD’s mother prepared on 4 September 2020;

(b)   a PAMS parenting assessment prepared by an independent social worker on 15 September 2020; and

(c)   a response from the clinical psychologist on 29 September 2020 to various questions arising from her initial report.

145.      Ms Winter also had a detailed Child’s Permanence Report prepared by the allocated social worker and dated 5 November 2020.  Section 10 of the CPR (‘Summary report from the agency medical adviser’) was left blank.  The section of the CPR which dealt with SD’s needs and the implications for her future placement contains the following reference:

“At this time [SD] is a healthy baby who is meeting all of her developmental milestones.  There are no current indications that [she] has any additional needs. ….It is clear that [her mother] has significant learning needs but we do not know about [her] father at this time.  It is unclear if [her mother’s] needs are environmental or genetic, although it is not thought that her parents have learning needs of their own.”

146.     In terms of other options, the adoption decision form (Appendix A) completed by Ms Winter on 28 November 2020 recorded the various viability assessments which had been undertaken in respect of SD’s mother’s current partner, EN, (dated 2 September 2020) and his parents (14 October and 3 November 2020).  She recorded in Appendix A the fact that SD’s mother was known to have a learning disability and that the clinical psychology assessment undertaken on 4 September 2020 had recorded her vulnerabilities in a number of respects.  It highlighted the fact that the mother’s health was likely to fluctuate to the point where she may be deemed incapacitous to conduct litigation without assistance from the Official Solicitor as a litigation friend (as was to prove to be the case).

147.     The evidential foundation of the concerns in relation to the possibility of some form of inherited genetic risk arising as a result of SD’s mother’s presentation was a factor which was known to Ms Winter at the time of her decision on 28 November 2020.  SD was described at that time in the CPR as “a healthy baby who is meeting all of her developmental milestones”.

148.     Thus, in respect of SD,

(i)                 there was a breach of regulation 15 in that there was no child health report from a medical practitioner requested by the adoption agency to examine the child and no advice, in the alternative, that a report was not necessary;

(ii)              there was a breach of regulation 17 in that the CPR did not contain a summary from Dr Smith, the agency medical adviser.

149.     In this context it is important to factor into the court’s analysis the universal acceptance that SD was at the time of the ADM’s decision, and remains, a happy healthy child.  The identification of the risk of mitochondrial disease arises only as a result of the fact that her mother presents with features which may indicate she has, or may develop, the condition.  There is no formal maternal diagnosis in this case, far less any evidence which confirms that SD herself has any genetic defect.  The ADM was aware of these issues at the time of her decision from the medical and other evidence which was put before her.  She concluded that SD’s health risk (if indeed it existed) should not deprive her of the opportunity of the security which adoption would bring.  She considered that option in the context of a holistic evaluation of all other options available for this child including a placement with the mother’s partner/extended family.  The viability assessment in respect of those options was negative and SD’s own mother accepted that she was not in a position to provide her daughter with the consistent and appropriate care she was entitled to receive throughout the course of her minority. Following her independent evaluation of SD’s welfare, her Guardian supported a placement order in accordance with Ms Winter’s decision. 

150.     It is relevant in this context to consider the following extracts from the PAMS assessment of the mother and her (then) partner in relation to their capacity to care for SD:-

“[ED] is also seen to be vulnerable.  He has been exposed to sexual and emotional harm and neglect as a child, and has not yet been able to make sense of these experiences.  [He] lacks the capacity to reflect on his own actions, and those of others.

[The mother] very much loves her daughter, and has tried her very best to look after her. Sadly, the combination of her cognitive difficulties and her poor experience of being cared for as a child, prevent her from being able to do so consistently.

This assessment considers that [SD’s mother] and [ED], either together or separately, cannot meet the care needs of [SD] in the short, medium or long term.  In [their] care, she will be exposed to physical, sexual and emotional harm and neglect.  Her needs will be neglected, and not prioritised.  [They] are unable to recognise risks, within their own functioning and that of others” (per the ISW report dated 15 September 2020).

151.     In relation to the viability assessment of ED’s parents, this proved negative as a result of “significant concerns about their parenting of their own children.  All 5 spent a significant amount of their childhood in LA care having experience[d] physical and emotional neglect, sexual abuse and poor home conditions”.  No other family members or connected friends or third parties were put forward as alternative carers.  Thus the options available were long-term foster care or placement for adoption outside the birth family. 

152.     The birth mother’s position in the care and placement proceedings was protected by the Official Solicitor who acted as her litigation friend.  In accordance with the mother’s known position at the time of the ADM’s decision, there was no opposition to the making of the care and placement orders on 2 February 2021.  Whilst I do not place any weight or reliance on that fact, it is nonetheless a reaffirmation of the mother’s position which was known at the time of the decision at the end of November 2020. 

153.     From this evidence, available to Ms Winter as the ADM at the time of her decision in November 2020, I have reached the following conclusions:-

(i)                 It is unlikely on the balance of probabilities that Dr Smith, as the agency medical adviser, would have requested a further examination or report in respect of SD in the light of the health information which was then available.  Even had that course been taken, I find that it is unlikely that such an examination or report would have provided additional health information about SD which would have materially undermined the ADM’s decision to place the child for adoption.

(ii)              In these circumstances, (a) even in the absence of a breach of regulation 15(2), it is unlikely that Ms Winter would have requested further reports pursuant to regulation 15(3); and (b) it is unlikely that the agency medical adviser would have expressed an opinion in any regulation 17(1)(b) health summary which would have undermined the ADM decision to place the child for adoption.

154.     In the circumstances, I find that the substance of the decision taken by Ms Winter in respect of SD to place the child for adoption (i) was not vitiated by any material error or misunderstanding, and (ii) was not undermined by the procedural irregularities which the breaches of regulations 15 and 17 AAR represented.  The court subsequently made the placement order on 2 February 2021 on the basis of all the information which was available to Ms Winter in November 2020 in addition to the very full pre-adoption medical report.  For reasons which I have explained above, I have not set out in this judgment the extensive detail which was contained in that report.  I merely observe that, in terms of the ultimate welfare decision for SD which was left in the court’s hands, its decision was fully and properly informed.   

155.     In these circumstances, the placement order made in respect of SD on 2 February 2021 was lawfully made.

(ii)         Specific findings:  T-R F-B (“R”)

156.     R was born on 24 May 2017.  She is 4 years old.  She has been in care throughout her life and has never known the security of a permanent home.    Care and placement orders were made on 13 December 2017 when she was almost 7 months old.  Neither of her parents opposed the making of those orders.  In terms of the significant difficulties facing this small child, I can do no better than to quote from the summary prepared by SCC.

“She has spina bifida and hydrocephalus. She has no feeling or function from her waist down, is unable to stand or weight bear and uses a powered wheelchair.  She is frequently catheterised during the day in order to manage her continence and she also wears nappies.  She requires life-long support for her physical needs.  There has been extensive family-finding for [R] since she came into care but due to her very high health needs there have been very few people who have even expressed an interest in adopting her.  Adopters have now been identified who have the appropriate skills to enable them to meet her needs and they were due to be matched on 18 June 2021.  Given [R’s] needs, if these adopters are lost due to delay, there is a strong chance that alternative adoptive carers will not be identified, particularly as [R] is now nearly four years old in addition to having significant health needs.”

157.     The agency decision maker for this child was Mark Barratt.  He has provided a written statement for the court in which he confirms that SCC applied for a placement order on 26 October 2017 following his approval as ADM of a care plan for adoption.  That decision was taken on 9 October 2017.  At that time R was living with foster carers.  He confirms that, at the time of making that decision, he had seen information from a paediatrician concerning R’s health and the difficulties with which she lived but he did not have a separate health report which was regulation 15 compliant.  He also accepts that the detailed child permanence report which he read did not contain a medical summary as required by regulation 17.

158.     What Mr Barratt did have to inform his decision-making were the following:-

(i)                 a report in the form of a letter from the paediatrician at Yeovil District Hospital, Dr E, prepared on 21 July 2017 less than three months before his decision to place for adoption;

(ii)              an Initial Health Assessment prepared by Dr M, a paediatrician at the same hospital, dated 6 October 2017, three days before the decision.

159.     Mr Barratt confirms that he considered this medical information carefully conscious that, if he had concerns, he was aware he could liaise with Dr Smith, the agency medical adviser in order to clarify issues or queries about that information.  As to the other information before Mr Barratt, it included the following:-

(i)                 a psychological report prepared by Dr P on 7 July 2017 in respect of each of R’s parents;

(ii)              a parenting assessment of each parent dated 26 July 2017;

(iii)            a report from Mr F, a paediatric neurosurgeon, dated 20 June 2017.  

160.     An earlier report from Dr N, a consultant paediatrician, had identified the likely cause of bruising to R’s half-sibling in April 2017 to have been “a kick of considerable force and not likely to be accidental”.  There were long-standing concerns about poor parenting and the use within the home by the mother of both alcohol and cannabis.  R’s mother had been diagnosed with emotionally unstable personality disorder and had been supported by the community mental health team since 2015 when she was referred as a result of acute depression.  The relationship between R’s parents was described as “volatile” and characterised by frequent incidents of domestic violence requiring police intervention.  R’s two elder half-siblings, who had been the subject of child protection plans since 2016, were taken into local authority care after that incident.  R was born very shortly thereafter and was immediately placed with foster carers following her discharge from hospital. The separate psychological and parenting assessments of her parents concluded that “neither … has the capacity to engage in the intensive support necessary in order for the children to return to their care”.  Neither was able to offer “safe, child focussed, stable and predictable parenting”.  Viability assessments of the maternal aunt and her partner were negative.  A special guardianship assessment of the maternal grandparents prepared by an independent social worker was also negative.  An experienced CAFCASS Guardian had prepared a detailed analysis which supported the plan for adoption of R.

161.     I have been provided with all the material which was put before Mr Barratt when he made his decision to place R for adoption in October 2017.  Included within that material is information about the various health care experts who were then involved in R’s care:  Mr S (a consultant paediatric urologist); an ophthalmologist at Yeovil District General Hospital; Mr F (the paediatric neurosurgeon) and Dr E (consultant paediatrician) to both of whom I have referred above.  There was confirmation that all of R’s immunisations were up to date and details of her GP and dentist.

162.     The report prepared by Dr E, consultant paediatrician, confirms R’s referral to Mr F.  He was said to be pleased with her progress and was due to see her again in six months’ time.  The report goes on to detail R’s developmental progress and the various support and intervention strategies which were in place to maintain “a very content baby who is enjoying her feeds … and is growing well along the 50^th centile for weight, 75^th centile for length”.  Dr E’s report concluded that:

“All in all, [R] is doing extremely well and making pleasing progress.  There have been some concerns about some jittery movements which are not overtly seizures, foster mother is aware that she is at risk of seizures and also aware of the features to look out for shunt blockage, infection and also urine infections.”

163.     Mr F’s report is dated 20 June 2017.  His report was prepared at the direction of the court in the context of the ongoing care proceedings concerning R.  He is a specialist paediatric neurosurgeon based at the Bristol Royal Hospital for Children.  His instruction was to prepare a report “to include details of all medical conditions [R] suffers from, her current health situation, any current and likely future health implications, additional care needs she has, additional health/medical needs/check-ups/treatment she will require, any additional skills or training her carers will require, her current treatment and any issues/warning signs the carers will need to be aware of when caring for [R]”.  I am satisfied that the report, which I have read and considered, addresses in specific detail each of these factors.  I do not reproduce them here but Mr Barratt has confirmed in his witness statement that he took into account all the information in that report when making his decision for R in 2017.

165.     Aside from the fact that paragraph 10 of the CPR (‘Summary report from the agency medical adviser’) records “None obtained”, the body of the report includes a close and careful analysis of all the medical information and reports from the various consultants which were then available.  It sets out in some considerable detail the medical chronology and the various surgical interventions which R had by then undergone.  It deals with R’s educational progress and her likely needs in the future.  The social work analysis at paragraph 13 constitutes an in-depth examination of all this small child’s complex medical and other needs including the lifelong care which she will need “through the community, local hospitals and specialist hospitals”.  It projects those needs into the future in terms of the specialist equipment she will need and her likely trajectory through education.  The CPR explores in some detail the history of R’s parents’ relationship from the age of sixteen when her mother was pregnant with her first child, R’s half-sibling.  It contains a careful analysis of the options for R and her two half-siblings.  In terms of R’s very particular needs, it concludes that in circumstances where neither of her parents can provide the consistent care she will need and there are no viable alternatives, adoption is the appropriate route to security and permanence for this child.

166.     All these factors are reflected in Mr Barratt’s record of his decision to place R for adoption.  That document records a “high level of complex health needs and as a result [R] requires a very high level of parenting”.  He had read and considered all the expert medical reports and the assessments to which I have referred above.  I can detect no flaw or error in his reasoning as ADM.  He considered, but dismissed, the options of rehabilitation to the birth parents and long-term fostering.  R’s health needs did not change between the date of the ADM’s decision on 9 October 2017 and the placement order which was made by the court on 13 December 2017.  Each of R’s parents consented to her adoption.  Neither has sought to make any representations in the context of these Part 18 proceedings of which they have received notice and the offer of funding in respect of legal representation.

167.     In the circumstances, I find that the substance of the decision taken by Mr Barratt in respect of R to place the child for adoption (i) was not vitiated by any material error or misunderstanding, and (ii) was not undermined by the procedural irregularities which the breaches of regulations 15 and 17 AAR represented.  The court subsequently made the placement order on 13 December 2017 on the basis of all the information which was available to Mr Barratt in October 2017.  

168.     In addition, on 8 October 2018 Dr Smith in her capacity as agency medical adviser prepared a full pre-adoption medical report.  That report is not directly relevant to my decision in relation to the legality of the decision to place R for adoption or the court’s subsequent endorsement of that decision.  It does, however, contain all the information which was required in order to inform the matching process which began at that point in time.  For reasons which I have explained above, I have not set out in this judgment the extensive detail which was contained in that report. 

169.     In these circumstances, notwithstanding the breaches of regulations 15 and 17, I am satisfied that the decision which Mr Barratt took on 9 October 2017 and the placement order made in respect of R on 13 December 2017 were lawfully made and SCC is entitled to the declaration sought in respect of this child.

170.     Given that potential adopters have now been identified for R, there is now no impediment to achieving a swift and early resolution for this child.

(iii)        Specific findings: SH

171.     SH was born on 12 April 2019 and is now two and half years old.  The decision to place her for adoption was taken by Ms Winter as the agency decision maker on 12 October 2020.  A formal application for a placement order was made by SCC on 20 October 2020.  She is subject to care and placement orders made by the court on 14 December 2020.  Neither of her birth parents opposed her adoption.  She was removed from her parents’ care in April 2020 when she was one year old.  Neither parent could care for her given issues of chronic substance abuse. 

172.     Happily, there are no health issues as far as SH is concerned.

173.     Ms Winter acted as the agency decision maker for SH.  She accepts that there were breaches of regulations and 15 and 17 in this case.  In her written evidence, she has confirmed that, at the time she made her decision to place SH for adoption, she had an updated Initial Health Assessment prepared by the agency medical adviser, Dr Smith.  That report had been prepared some four months earlier on 11 June 2020.  In addition, Ms Winter had the following information:-

(i)                 a psychological assessment of the birth parents prepared by Dr A, a clinical and forensic psychologist, dated 20 June 2019 together with an addendum report dated 30 September 2020;

(ii)              a pre-birth parenting assessment prepared by a social worker on 14 February 2020;

(iii)            a parenting assessment of both parents prepared on 26 April 2019.

174.     SH has a number of half-siblings on both her mother’s and father’s side of the family.  As a result of the removal from the parents’ care of two of these children as a result of parental drug use, neglect and domestic abuse, a child protection plan had been put in place before SH was born.  Initially SH and her parents were together in a residential placement for the purposes of assessment.  After six weeks, the family returned home.  Three of the father’s children subsequently moved in to live with them.  Both parents were found collapsed at the property following a fire and each tested positive for illegal substances.  SH was removed from their care to a foster placement.  The court made an interim care order in favour of SCC on 30 April 2020.

175.     It is clear from the adoption decision form that Ms Winters was aware at the time she made her decision in this case that SH’s mother’s dependence on drugs was chronic and had existed for over 20 years despite numerous interventions.  Despite her engagement from time to time with medical interventions, she continued to use heroin despite being prescribed methadone and buprenorphine.  The updated psychological assessment which informed her decision making had concluded that “from the history of these parents, I do not have confidence that they can consistently work openly and honestly with professionals”.  There were no other family members or friends who came forward to offer SH a permanent home.  Ms Winter’s assessment concluded in this way:-

“[SH] was removed from [her parents’] care in April 2020 due to their drug use and associated chaotic lifestyle.  It is clear that they both love [SH] dearly and want her returned to their care.  However, the psychological opinion is that both parents would need to be able to cease drug use and maintain a period of abstinence for 12 months, in order to evidence their long-term abstinence prognosis.  When combined with the concerns about parents’ understanding of the significance of their substance misuse in its effect on their parenting ability, the prospect of [SH] returning to their care is untenable.  There are no alternative family carers.  The best permanence plan for [SH] is therefore adoption.”

176.     All the experts instructed in the case agreed with that decision. Dr Smith had confirmed in her medical report that there were no specific health concerns for SH although her mother had described her as “a very irritable baby” who was waking regularly through the night.  An updated report from Dr Smith on 11 June 2020 confirmed that the child had made very good progress since moving to live with her foster carers.  Her development had accelerated and “there is no specific concern with her gross motor skills or fine motor skills”.  There were still some concerns at that stage that she was catching up with her social and communication skills.  Since being in care she had moved from a position of struggling with food and feeding to being able to eat well and feed herself.  All her vision and hearing tests were confirmed to be up to date and there were no issues arising. 

177.     There was a child permanence report before Ms Winter at the time of her decision.  That report had been prepared by the allocated social worker on 1 October 2020.  Paragraph 10 of that report (‘Summary report from the agency medical adviser’) had been completed “to follow”.  The social work analysis in paragraph 13 is full and contains a detailed exposition of both parents’ childhoods and backgrounds and the family circumstances at the time of SH’s birth.  It tracks the chronology of events thereafter.  It records the parents’ inability to cope following the removal of two older children and their ongoing use of heroin and other substances even during periods when there was a high level of external support in place to support the family.  It addressed the number of parenting assessments which had been conducted since January 2019 including the six week period in a residential assessment specialist unit.  It included a careful Re B-S compliant analysis of all the available options for SH including rehabilitation to her parents, long-term foster care subject to a care order, and adoption.

178.     In this case there was plainly a failure on the part of the adoption agency to make a specific request for a specific medical examination of the child or to seek advice that a medical report was unnecessary (regulation 15).  In addition, there was no medical summary from the agency medical adviser within the body of the CPR (regulation 17).  However, Ms Winter did have access to the report prepared by the agency medical adviser, Dr Smith, which had been prepared by her in May 2019 and updated the following month in June.  SH’s health did not change and there were no contraindicators between June and October 2019 when Ms Winter made her decision to place for adoption.  Following her independent evaluation of SH’s welfare, the Guardian supported that decision.  Ms Winter was required to consider whether SH could safely return to her parents’ care.  On the basis of the evidence before her at the time, she plainly concluded that she could not.  Neither parent opposed her placement for adoption and neither has sought to make representations in the context of these Part 18 applications despite being given notice and the opportunity of legal funding.

179.     I can see no basis on which to conclude that, in her capacity as agency decision maker, Ms Winter’s evaluation was flawed or based upon incorrect or insufficient medical evidence despite the breaches of regulations 15 and 17.  In this case it is difficult to see what more compliance would have achieved in terms of the provision of information for the decision maker.  That does not mean that compliance was unnecessary: it plainly was and the regulations should have been complied with.  However, on the basis of my analysis of the information available to Ms Winter in October 2020 and the circumstances in which she made her decision, I am satisfied that, notwithstanding the breaches of regulations 15 and 17, the decision which Ms Winter took on 12 October 2020 and the placement order made in respect of SH on 14 December 2020 were lawfully made and SCC is entitled to the declaration sought in respect of this child.

180.     Adopters have now been identified for SH and her foster carers have already explained to her in age-appropriate terms that she will be moving to her new family.  The potential adopters have a son.  He and SH are aware of each other’s existence and a transition plan for a move was already in place when these wider issues came to light in April this year.  As a result, these plans have been put on hold.  The impact on everyone involved is not difficult to imagine and cannot be underestimated.  It is no part of my function in the context of this judgment to conduct any form of welfare evaluation now and I do not do so.  These are matters for others but SH has been included within this primary cohort of children because her case is both pressing and urgent.

(iv)             Specific findings:  TM

181.     TM was born on 21 August 2015.  He is now 6 years old. He was the subject of care proceedings in November 2018 along with his two brothers.  The children were removed from their mother’s care in October 2017 as a result of a number of concerns about the care she was providing.  The agency decision maker in this case was Ms Rebecca Hopkins, a senior manager within SCC’s Children’s Services.   She made her decision to place TM for adoption on 9 August 2018.  Care and placement orders were made by the court on 5 November 2018.  Those orders were opposed by the birth parents.  The hearing was thus contested.  A first appeal by the mother failed as did a second appeal determined in February 2019.  TM’s father has not engaged at all since the care proceedings concluded.  Neither parent has sought to make representations for the purposes of these Part 18 proceedings despite having been given notice and offered financial support for legal advice and representation.  

182.     TM is currently being cared for in a foster placement.  His current carers are not in a position to offer him long term foster care.  Attempts to identify a placement for the sibling group of three where TM could be placed with his two brothers has been unsuccessful.  An assessment conducted in February 2019 concluded that separate placements should be pursued and he is currently the only remaining child in his sibling group who has been left as a result of these proceedings without a permanent family.

184.     Ms Hopkins records on her decision form that TM was removed from his family home when he was 2 years old as a result of chronic neglectful parenting which had given rise to significant concerns about his wellbeing and development.  During two separate periods he had been supported by external resources through child protection plans.  He was then placed in a local residential assessment unit with his mother but she left after two weeks at which point he was transferred to a foster placement.  The poor quality of the parenting he had received in the early years of his life were found to have had a direct correlation with his global developmental delay.  The decision form records Ms Hopkins’ conclusion that:

“[TM’s] current needs means he requires care givers who are attuned to his needs, nurturing and can provide him with a high standard of care.  [His] carers should be able to manage uncertainty about his future health and development and support his individual needs in this respect.”

185.     She made a specific recommendation from the foot of existing health and psychological assessments that “a full paediatric and autism assessment is recommended”.

186.     The child permanence assessment which was available to Ms Hopkins as the agency decision maker is dated 26 March 2018.  TM was then subject to an interim care order and living with foster parents.  It is clear from the CPR that there had been by that stage a considerable number of reports from different health professionals including a paediatric assessment of TM dated 12 March 2018 prepared by Dr W and a report by a hearing loss advisory teacher prepared on 18 May 2018.  There were other psychiatric evaluations and pre-birth assessments of the parents, a PAMS assessment prepared by an independent social worker, a report from the residential assessment unit and health visitor reports.

187.     The social worker who prepared the child permanence report has included the following medical information in her summary:-

“[TH] has had lots of tummy bugs in his life and still often has very loose bowel movements.  He is currently having an elimination diet to see if he has a food allergy.  This is being organised and assessed by his GP.  [He] has recently had grommets fitted to assist with his hearing, whilst this was being done he also had his hearing tested.  He has been found to have some hearing los[s] in both ears.  He had a full paediatric assessment in March 2018, this identified global developmental delay, he has made some rapid progress since being in care in all areas, it is currently unknown if he will fully catch up with his peers or if he has some level of learning disability, he was tested for this and we are waiting results still.  [He] has also had the usual coughs and colds and he had chicken pox earlier this year.  [TB] is currently being assessed to see if he is Autistic.”

188.     At paragraph 33 of the CPR, there is a much more detailed summary of the various reports to which I have referred above.  The March 2018 psychological assessment of TM records that:

“[TH] has global developmental delay, significant communication and social difficulties, possible autism spectrum disorder.  His needs are unusual and complex and he will need long-term carers who are experienced and skilled at supporting his additional needs and the challenges as his needs change and develop.”

189.     The report from his specialist hearing loss teacher concludes that:

“[TM] will require a much higher level of interaction than other children in order to develop his language skills given the delay in his development so far.  He will need lots of opportunities for play/experiencing different places and environments.  He will need the adults around him to facilitate his language development and will need an environment where language is both modelled and extended.  This will need to be ‘over and above’ what a child who has age appropriate language would require.”

190.     As the analysis reflected in the CPR makes clear, the viability assessments of the ability of the parents to care for TM, or his brothers, were entirely negative.  No other family members or potential carers known to the family had put their names forward as alternative carers.  The only realistic options at the time for TM were therefore long-term foster care or adoption.  Ms Hopkins confirms in her written witness statement that her decision to place TM for adoption would not have been different had she had access to a report prepared by the medical adviser.  I bear well in mind the submission which Ms Giz has impressed upon the court that this was not her decision, with her social work background, to make.  Nevertheless, she was clearly sighted in relation to all TM’s medical conditions and the ongoing concerns about his development.  That medical information had no doubt informed her recommendation for a full paediatric and autism assessment in due course (see paragraph 185 above).  Whilst neither the IHA nor the CPR made specific reference to a chromosome disorder, Ms Hopkins has recorded as part of her written decision to place for adoption that she had reached her decision based upon an awareness of “more potential complex health needs for [TB]” and it was this which had informed her recommendation for a full paediatric assessment in the future.

191.     In the light of the availability and cumulative effect of the medical and other information which was available to Ms Hopkins at the time she made her decision, I do not find her welfare evaluation, conducted holistically as it was, to be undermined by the admitted breaches of regulations 15 and 17.  I find it unlikely given the evidence which was available at the time that Dr Smith, in her capacity as agency medical adviser, would have requested a further examination and report in relation to this child.  I further find that it is unlikely that Dr Smith would have expressed an opinion in any regulation 17(1)(b) health summary that would have undermined the decision to place TM for adoption.  I am satisfied that, notwithstanding these admitted breaches, the decision which Ms Hopkins took on 9 August 2018 and the placement order made in respect of TM on 5 November 2018 were lawfully made and SCC is entitled to the declaration sought in respect of this child.

192.     TM has been a difficult child to place because of his particular issues.  One set of potential adopters withdrew when they realised what would be involved in meeting his particular needs. Notwithstanding the delays which these proceedings have caused in TM’s path to permanence, I am told that an alternative adoptive placement has now been identified for him.  These potential carers have been provisionally assessed as capable of meeting his needs and it appears that they remain willing to proceed on the basis of all the information which is now available.  The next steps are not a matter for me since I am not determining welfare issues but, in terms of legal hurdles, there is now no reason why those next steps should not proceed swiftly provided that the current welfare analysis continues to support adoption as the best outcome for this child.

(v) and (vi) Specific findings:  MM and HM

193.     MM and HM are full siblings.  HM was born on 14 July 2017 (she is now 4 years old) and her elder sister, MM, was born on 24 July 2016 so she is now 5 years old.  They have two sisters who have already been adopted and part of their care plan is ongoing contact with their siblings.  Ms Winter was the agency decision maker for both children.  Her decision to approve placement for adoption was made in both cases on 20 May 2020 and care and placement orders in respect of both children were approved by the court on 12 October 2020.  The children’s birth father did not oppose the route of adoption for his daughters; their birth mother gave her active consent having asked for the children to be voluntarily accommodated when the care proceedings began.  The children’s Guardian supported that outcome and neither of the parents has sought to make any representations in these Part 18 proceedings despite being given formal notice of their existence.

194.     Concerns about the children arose in the context of their parents’ volatile relationship, their father’s misuse of alcohol, domestic abuse and general poor and chaotic parenting skills.  Both girls have been living with their foster carer since 19 February 2020.  They continue to have direct and indirect contact with their sisters (aged 2 and 3 years old) who have also been placed for adoption.

195.     The same irregularities feature in the case of these two children in that there was no specific regulation 15 referral or advice that a further report was not necessary.  Neither was there a regulation 17 summary report within the children’s permanence reports.

196.     Before Ms Winter at the time of her decision to place these children for adoption was a full report from a consultant paediatrician, Dr J.  It is dated 12 March 2020 and was compiled some seven weeks before that formal decision.  In addition, Ms Winter was provided with a number of other reports including formal parenting and risk assessments, one of which was undertaken by an independent social worker.  These reports had been compiled over a three month period between December 2019 and the end of March 2020.  They were thus fresh and up to date.

198.     MM was born with bilateral talipes, a condition which required surgery in 2017 when she was one year old.  Her parents failed to comply with ongoing medical advice and missed several appointments for follow-up consultations.  As a result MM’s condition relapsed several times and she requires further correction to her right foot.

199.     Ms Winter was provided with an Initial Health Assessment prepared by the agency medical adviser, Dr Smith which is dated 16 April 2020.  That report confirms that MM is “very well” and that “there are no concerns with her health and it is reported that this has improved since she has been in care”.  There were no specific concerns about her hearing or vision although she had been investigated for a possible squint.  Dental care and immunisations were all up to date.  The report included reference to professional input from the paediatric orthopaedic surgeon and senior physiotherapist who had been involved in MM’s care for her bilateral talipes.  She was due to undergo further surgery which had necessarily been delayed as a result of the Covid-19 restrictions.  The medical assessment in this respect confirms that,

“It is recognised that in the wait for surgery, [MM’s] feet might relapse further but this should not cause any further concerns for [MM] and it is expected that she should be able to have a good outcome despite delaying the treatment.  Appointments will be offered when Covid-19 restrictions are lifted.”

200.     The section of MM’s report which deals with her health history contains (at paragraph 3c) a detailed exposition of the results of an earlier referral to an orthopaedic surgeon in August 2016, the treatment which followed and the operation which was undertaken as a result.  It also details the staged relapse which followed when her parents failed to take her to follow-up clinics.

201.     In addition, Ms Winter had a full child permanence report dated 6 May 2020 which recorded in depth the child’s history and the reasons for her journey through the care system.

202.     HM is fit and healthy save for a malpositioning of her right kidney.  Before Ms Winter for the purposes of her decision was a paediatric report from Dr J dictated on 12 March 2020 following a consultation on that date.  That report confirms that HM had undergone scans of her kidneys which revealed good growth and an absence of any concerns.  She was subject to a plan for regular scans at five yearly intervals. In all other respects, “… she is clearly thriving … She looks very well and I have no concerns about her clinically”.  Dr J concluded her report with these observations:-

“She has a slightly malpositioned kidney which I would like to re-scan when she is around 5 years old but the risk for long term problems is very small.  The only time it would be important to be aware of this was if she were to have an accident or surgery and/or keeping a closer eye on her blood pressure, particularly during pregnancy.  I would like to re-check her blood pressure in a year’s time but otherwise she needs no further medical intervention.”

“I did a full examination today so I do not think that [HH] needs to be brought back for her Looked After Child medical in April, although if there are any further questions that are needed for the paperwork they can be undertaken when her sister comes for that medical.”

203.     The child permanence report for HM was completed on 6 May 2020, on the same date as her sister’s report, some two weeks before the decision to place both children for adoption.  In this instance, paragraph 10 of the reports (‘Summary report from the agency medical adviser’) includes the same following reference:-

“An Adoption Medical report is not yet available because, in Somerset, once adoptive parents have been identified the Medical Advisor (who is a Paediatric Doctor) will then prepare a detailed report.  The report will share health information about pre and post natal experience of the child as well as health factors.  This report should also contain health information about [HM’s] parents, half siblings and family members, especially if they have any health issues that are genetic and could therefore impact on [HM], either at the time of writing or later in life.”

204.     I pause there to remark only that the inclusion of this paragraph reinforces the fundamental nature of the misconception under which its author, and indeed the adoption agency, was labouring.  It is the clearest evidence that a policy had been adopted by SCC which was knowingly or unknowingly in direct contravention of the AAR.  Beyond that, I cannot make further findings given the scope and reach of the evidence in this case.  It is nevertheless captured by formal concessions made by SCC that (i) the ADM was unaware of the requirements in regulations 15 and 17, and (ii) the adoption agency’s legal department failed to identify those deficiencies in its procedures.  Mr Goodwin QC on behalf of the adoption agency has described this as “a serious misunderstanding of what is required by regulation 17 of the AAR”.

205.     The children’s Guardian supported the plan to place both children for adoption.  There were no changes in the health of either child between the ADM’s decisions for each on 20 May 2020 and the placement orders approved by the court on 12 October later that same year.  The placements for adoption were supported by their mother and not opposed by their father.

206.     In these circumstances, it is difficult to see how any perceived lack in the medical evidence and/or a failure to ask Dr Smith, in her capacity as agency medical adviser, whether a further report or examination was necessary, would have made a material difference to Ms Winter’s decision-making.  Having considered the alternatives for each child in this sibling group of two, she concluded that the needs of each were for placement together in an adoptive home.

207.     I do not find her welfare evaluation, conducted holistically as it was, to be undermined by the admitted breaches of regulations 15 and 17.  I find it unlikely given the evidence which was available at the time that Dr Smith, in her capacity as agency medical adviser, would have requested a further examination and report in relation to either of these children given the information which was then available and the recommendations for ongoing monitoring and review.  I further find that it is unlikely that Dr Smith would have expressed an opinion in any regulation 17(1)(b) health summary that would have undermined the decision to place either of MM or HM for adoption.  I am satisfied that, notwithstanding these admitted breaches, the decision which Ms Winter took on 20 May 2020 and the placement orders made in respect of each child on 12 October 2020 were lawfully made and SCC is entitled to the declaration sought in respect of these children.

208.     I am told that, following extensive national and regional searches, potential adopters have been identified.  They are prepared to offer a permanent home to both children and they have been assessed as able to meet all their needs including the ongoing interventions which will be needed to correct MM’s health issues.  I do not propose to say anymore about the next steps save that there is no further legal impediment for either child in terms of the next steps towards permanence.

(vii) and (viii) Specific findings: HP and MP

209.     HP was born on 9 November 2017.  He is now nearly 4 years old.  His sister, MP, was born on 25 May 2019 and so she is now not quite 2 years old.  They reside together at a foster placement which has been their home since 15 May 2020.  Ms Winter was the agency decision maker in this case and she made her formal decision to place these children for adoption on 13 August 2020.  The court made care and placement orders on 26 January 2021.  Neither parent engaged in the court proceedings or provided any instructions and neither has sought to make any representations in these Part 18 proceedings notwithstanding that they have been given notice of them and of this hearing. They appear to have separated by the time of the final hearing. The mother had a final contact with HP on 6 April 2021.  The father was fully aware of these proceedings, although not formally served, and did not respond to the invitation which was extended to him for these purposes.  The Guardian in each case gave her full support to the making of those orders as being in the children’s best interests.

210.     Neither of these children has any health issues.

212.     For the purposes of her decision on 13 August last year in relation to HP, Ms Winter, as the agency decision maker, had a medical report in the form of an Initial Health Assessment dated 7 December 2017.  That report had been prepared by Dr Smith, the agency medical adviser.  The report confirmed that he was a physically fit and healthy boy.   A further health assessment prepared by Dr M on 18 June 2020 following an examination at Yeovil District Hospital confirmed that there were no health issues arising out of his examination of HP and no significant past medical history.  That report was prepared within a matter of weeks of the ADM decision.

213.     In relation to HP’s sister, MP, Ms Winter has confirmed that she had a report in the form of an Initial Health Assessment prepared by Dr M dated 18 June 2020.  That report confirmed that there were no health concerns for the child who was described by her foster carer as “a gorgeous, cute and delightful baby”.  When MP had come to her, she was behind in more or less every aspect of her development but that presentation had changed dramatically over the course of the first five weeks of the placement.  All MP’s immunisation and other records were confirmed to be up to date and blood tests taken shortly after her birth had confirmed that there were no concerns in relation to any other conditions.

214.     In addition to the medical evidence for each of these siblings, Ms Winter had a full range of expert psychological and other reports and information which had been compiled in relation to the parents.  A special guardianship assessment had been prepared in relation to the option of placement with the paternal uncle and his partner.  That report was negative and there were no other family members who were able to offer either of these children a home.  Ms Winter subsequently reviewed her original decision on 21 December 2020 some four months after her original decision for both children to be placed for adoption and about a month before the final court hearing.  There was additional information available to her at that stage in relation to a medical report about what was considered to be a non-accidental injury to HP whilst he was living in the care of his uncle his partner.  I place no reliance on that subsequent information for the purposes of determining the legality of the current placement orders nor have I taken any account of the very full pre-adoption medical report prepared by Dr H on 7 April 2021.  There is a full child permanence report in respect of each child in the material placed before the court.  Whilst the team leader/social worker compiling those reports has signed them, they remain undated and it is therefore not clear to me whether or not they were available to Ms Winter on 13 August 2020 when she made her decision to place for adoption.  From the evidence of Ms Poore and what appears to have happened in relation to the other primary cohort children, it seems reasonable to assume that these reports were provided to her before 13 August 2020.  Given the options at that time, it appears that these children were either looking at long-term foster care or an adoptive placement.  There were no other options given the fact that neither parent had engaged in the proceedings for the purposes of the final hearing and there was no offer of an alternative from members of the extended family.

215.     In these circumstances, I do not find Ms Winter’s welfare evaluation, conducted holistically as it was, to be undermined by the admitted breaches of regulations 15 and 17 in the case of these two children.  I find it unlikely given the evidence which was available at the time that Dr Smith, in her capacity as agency medical adviser, would have requested a further examination and report in relation to either of these children given the information which was then available to Ms Winter.  I further find that it is unlikely that Dr Smith would have expressed an opinion in any regulation 17(1)(b) health summary which would have undermined the decision to place either of HP or MP for adoption.  I am satisfied that, notwithstanding these admitted breaches, the decision which Ms Winter took on 13 August 2020 and the placement orders made in respect of each child on 26 January 2021 were lawfully made and SCC is entitled to the declaratory relief which it seeks.

216.     I am told that family finding is well advanced in this case.  An adoptive match for these two children has been made.  They can be placed together and work had been commenced to prepare the children for a move to their new carers when these issues came to light.  For reasons I have already expressed, I say no more about the next steps which are outwith the remit of this judgment save that there is no further legal impediment for either child in terms of the next steps towards permanence.

(ix) and (x) Specific findings:  SR and ZR

217.     This sibling group is the last of the primary cohort children.  SR was born on 5 August 2014.  He is now 7 years old.  His sister, ZR, was born on 17 October 2018.  She is now 3 years old.  Ms Winter was the agency decision maker in this case.  Her decision to place these children for adoption was made on 8 October 2020.  Formal applications for placement orders followed on 22 October 2020.  Care and placement orders followed on 9 November 2020.  Neither of the birth parents engaged in the court proceedings.  The mother has been served with notice of these proceedings and has chosen not to respond and/or make any representations.  The whereabouts of the children’s father are unknown.  He disengaged from the care proceedings at a very early stage.  I made separate disclosure orders against the Department of Work and Pensions in order to ascertain whether there was any official record of his current address.  That has produced a nil return and thus he has not been given notice of these Part 18 proceedings.  To the best of my knowledge, the mother has no contact with the father and cannot assist in this respect.  Despite the lack of service on this particular father, I have given leave for the Part 18 application in respect of these two children to proceed since their cases as members of the primary cohort require urgent resolution.

218.     In March 2020 both children moved to live with their maternal grandmother.  She applied within the care proceedings for a special guardianship order but withdrew that application in advance of the final hearing, recognising that it was in the children’s best interests to pursue the option of a settled and secure adoptive placement.  Her daughter, the children’s maternal aunt, had also applied for a special guardianship order but the court rejected that option following a negative assessment of her capacity to care for them.  The mother herself disengaged more or less completely once the children were removed from her care and she has not had any contact with either child since February this year.

219.     There are no health concerns in relation to either of these children.  That much is clear from the reports which were available to Ms Winter on 8 October 2020.  Dr M confirmed that SR was well and thriving in his report dated 13 May 2020.  At the time of her decision, and in addition to Dr M’s medical report, Ms Winter had a very full panoply of evidence from a number of professionals including parenting assessments, drug reports, viability assessments and a special guardianship assessment of the maternal aunt.  The only concerns to emerge from the medical report in relation to SR was a failure by the mother to ensure that he was up to date with his immunisations and a poor dental health record.  The CPR which was available to Ms Winter at the time of her decision records this information from the social worker who prepared the report:-

“[SR] is fit and healthy.  He has some tooth decay and has had several baby teeth removed to manage this.  He has outstanding childhood immunisations.”

220.     Dr M prepared a separate report dated 13 May 2021 for ZR.  That report confirmed that she had no past or current medical issues and that she was a perfectly healthy child.  The child permanence report dated 28 August 2020 (just weeks before the ADM decision) confirmed that she was “in good health and meeting all of her developmental milestones” although she had not yet had any childhood immunisations.

221.     The child permanence reports confirmed that neither child had an ongoing relationship with their father and that neither the mother nor the father was in a position to provide for their children going forward.  The parenting assessments of both the maternal grandmother and aunt were negative and carried significant risk of breakdown in respect of both potential placements.  Thus the options which confronted Ms Winter in this case were either long term foster care or placement for adoption.  For reasons which she gave in her written decision, she favoured giving both of these children the opportunity for security and permanence in the context of an adoptive placement as a sibling group.

222.     In these circumstances I do not find Ms Winter’s welfare evaluation, conducted holistically as it was, to be undermined by the admitted breaches of regulations 15 and 17 in the case of these two children.  In the light of the evidence which was available at the time that both children were in good health and thriving in their foster placement, I find it unlikely on the balance of probabilities that Dr Smith, in her capacity as agency medical adviser, would have requested a further examination and report in relation to either of these children given the information which was then available to Ms Winter.  I further find that it is unlikely that Dr Smith would have expressed an opinion in any regulation 17(1)(b) health summary which would have undermined the decision to place either of HP or MP for adoption.  There was no material error in her decision-making in respect of these two children.  I am satisfied that, notwithstanding the admitted breaches of regulations 15 and 17, the decision which Ms Winter took on 8 October 2020 and the placement orders made in respect of each child on 9 November 2020 were lawfully made and SCC is entitled to the declaratory relief which it seeks.

223.     One potential adoptive placement for these children has already been lost.  I am told that a new set of adopters has been identified.  I say no more about these decisions save that there is now no legal impediment in the path of permanence for these two children.

224.     That concludes my analysis of the position for each of the primary cohort children.

N.         Concluding remarks

225.     This is already a lengthy judgment.  The circumstances in which these Part 18 applications come before the court required that it be so.  Despite the fact that I am only dealing here with ten of the primary cohort children affected by SCC’s failures, I realise that there is the wider cohort whose cases will need to be considered in due course.  That exercise is likely to be materially different from this in that many of those children have been placed with permanent families on the basis of post-matching adoption orders.  The majority are living in happy and settled homes where they have achieved permanence and, I hope, happiness and security after what will have been a very difficult start in their lives.

226.     The fundamental message which must flow from this judgment is that nothing which I have said, and nothing which emerges from my findings in relation to the legality of these ten placement orders, absolves SCC from significant censure for its systemic failures.  On the final day of this hearing, Mr Goodwin QC produced a lengthy statement from Ms Winter which purports to address some of the steps which have now been put in place to address these failures. Because counsel did not have an opportunity to read this statement, far less address its contents, I do not propose to say any more about it in this judgment.  There may well be issues which need to be addressed going forward and, as I have indicated, I intend that there should be an early case management hearing within the next three weeks to consider what happens next.

227.     For completeness, from the foot of the analysis of the individual cases which I have set out in paragraphs 141 to 224 above, I do not consider that Ms Winter or either of the two other ADMs who were involved in decisions for the primary cohort children had a specific policy or agenda to avoid their specific statutory responsibilities to consider all options for these children. It is clear to me from the particular factual matrices and the analysis of the options which were potentially available and viable for each of these primary cohort children that the judgments reached by Ms Winter and her fellow ADMs were both considered and based on an evaluation of the totality of the evidence available at the time.  To the extent that it is permissible for this court to look backwards with the benefit of hindsight at those decisions from the perspective of the much fuller evidence which was available to the court for the purposes of subsequent judicial decision making, I am satisfied that each of the decisions taken in relation to the primary cohort children was reached from the foot of an evidence base which was sufficient in terms of its material compliance in substance, if not in form, with Parliament’s expressed intentions as reflected in the AAR.

228.     Nothing of this sort can be allowed to happen again.  SCC must conduct a complete and comprehensive overview of its compliance procedures.  If this exercise requires the allocation of financial and other resources, then so be it.  The next steps will be determined at the forthcoming case management hearing.

Order accordingly