The Implications Of The Recent Somerset Case
In her latest Timms Blog, Family Law Solicitor Melissa Knight discusses the implications of the recent Somerset case…
The matter of Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor [2021] EHWC 3004 was heard before the Family Division of the High Court in September 2021. Whereby Mrs Justice Roberts was asked to determine the lawfulness of a placement order granted under the Adoption and Children Act 2022. This involved a group of ten cases whereby the placement orders were granted between 2017 and 2021.
The Case
This case emphasised the ramifications for local authorities acting as adoption agencies if there is non-compliance with Adoption Regulations 2005. In particular, it became apparent that there were local authority failings due to the flawed procedures around the request for medical information within the children’s adoption process.
It was discovered that the local authority’s Agency Decision Maker was not requesting the necessary children’s medical information from the Adoption Medical Advisor in order to inform their decision-making about whether a plan of adoption should be ratified. A failure of the Agency Decision Maker to consider a child’s medical information is a non-compliance with regulation 15 and 17 of the Adoption Agencies Regulations 2005. Somerset County Council sought declarations under Part 18 of the Family Procedure Rules 2010 as to the lawfulness of the placement orders.
Whilst, Mrs Justice Roberts found grave procedural failings. She did not consider that any of the placement orders granted were unlawful. In her judgment, Mrs Justice Roberts stated that” nothing of this sort” could be allowed to happen again. A spokesman for Somerset County Council has offered a direct apology to the children and their families in response to these failings.
The Judgment
The judgment which was handed down in November 2021 stated:
“ The court has been made aware that it’s (Somerset County Council) long-standing failure over a considerable period to comply with specific aspects of the statutory framework laid down by the Adoption Agency Regulations, which underpin its primary obligations under the Adoption and Children Act 2022, has raised issues in relation to a significant number of other placement and adoption orders…… the wider cohort of children could number as many as 300.”
Somerset County Council accepted the Court’s findings and have been directed to complete a complete and comprehensive review of their procedures. They have instructed CoramBAAF to carry out their review of all applications. CoramBaaF are a national agency whose expertise centres around adoption and fostering.
Announcement Made In Response To The Case
The President of the Family Division, Sir Andrew McFarlane has published an announcement on 28th January 2022 in response to this ruling. The announcement identifies that since the Somerset judgment was handed down, it has become apparent that a number of other local authorities acting as adoption agencies have also identified non-compliance of a similar regard. However, the exact number of authorities at this time remains unclear.
In addition, the President has announced that in March 2022 he will consider legal arguments to consider cases of this nature moving forward. This will include consideration of an approach that does not require a judicial determination in relation to each individual child. The Judgment will be made available in order to provide guidance to local authorities, CAFCASS and the courts.
Local Authorities have been encouraged to review internally which children have been impacted by non-compliance. However, they have been asked to halt any further applications under Part 8 FPR 2010 until the judgment has been delivered. If, however, the Local Authority considers that waiting for the judgment would cause significant damage to that individual child then a Part 18 FPR 2010 application can be made in these circumstances to be considered by the local Designated Family Judge. The President has identified the following children who would fall under this category: –
- A child who is at risk of losing an adoptive placement for which they have already been matched or they are about to be matched
- A child who is already in an adoptive placement which may break down if a pending adoption application is delayed
What Happens In These Circumstances?
In these circumstances, the birth parents should be sent a letter explaining that a legal issue has arisen and asking them to contact the local authority solicitor for further information. In addition, birth parents should be offered free legal advice to be funded by the local authority.
The ruling in this case could have serious implications for ongoing care proceedings whereby the Local Authority has applied for a placement order. Some local authorities have decided to respond to this situation by applying for leave to withdraw the placement application with a request that their Agency Decision Making re-takes their decision regarding adoption. This may have a knock-on impact on the Court timetable if this approach is taken and cause delay to the proceedings.
A link to the judgment can be found here.
How Can We Help?
If you require any further information in respect of this issue or are a parent whereby this issue has arisen then do not hesitate to contact me on 01283 56531. Alternatively, you can email at m.knight@timms-law.com.
February 2022