The President of the Family Division yesterday (13^th April, 2022) made the final ruling in the Somerset case, confirming that despite breaches in procedure by Somerset County Council in preparing for children’s Permanence Reports, any existing placement orders or existing adoption orders made by a court are fully valid. The applications made by Somerset County Council seeking confirmation of the validity of existing placement orders were therefore dismissed as not required. This ruling will apply to cases by other local authorities identifying similar breaches and will be a huge relief to many families whose adoption process have been paused whilst the legal proceedings were in process.

Setting out the rationale, President of the Family Division Sir Andrew McFarlane drew a clear distinction between local authority actions and the subsequent decision of a court to grant a placement order or an adoption order. He further emphasised that an appeal against a court’s decision to make a permanence order in this circumstance was highly unlikely to be granted “in the absence of some very significant evidence as to a child's health, which was not otherwise known to the court”. This follows the established principle that an adoption order, once made, will ‘only be subsequently set aside or revoked in 'wholly' or 'highly' exceptional circumstances’.

Despite the ruling, the President was clear that the breaching of Adoption Agency Regulations 2005 by local authorities with regards a child’s permanence report is an important matter; and raised questions about the role of Ofsted – who are responsible for inspecting agencies. He further emphasised that courts are likely to be highly vigilant in future, so that they can be satisfied the medical requirements of the regulations have been properly followed.

The President set out next steps for local authorities which may have breached regulations, and what will happen depending on the stage in the adoption process. The following is an extract from his verdict:

 

• It is now a matter for each local authority and adoption agency to review its procedures and determine whether they have been operating in breach of the requirements of the Adoption Agency Regulations 2005.
• If breach of the regulations is identified in cases in which a decision to apply for a placement order has been made, but the application has not yet been made to the court, then the adoption agency will no doubt decide to retake the decision once the correct procedure has been undertaken.
• In cases where a breach is identified and an application for a placement order has been made but not determined, the local authority should consider itself under a duty to bring the breach to the notice of the court that is hearing the application. It will be for that court to make directions as to how matters should proceed, but, unless to do so would compromise the final hearing date, it is likely that the court will require the breach to be remedied before the final hearing so that all relevant information can be considered. Where a final hearing is imminent, it will be for the allocated judge to determine the way forward. In a case where no party, in particular the parents, is aware of any potential health issue that might conceivably impact upon the determination of the placement order application, it may be that the court will proceed with the final hearing but postpone making any final order pending receipt of the required medical information. I should stress that the decision in each case will be a matter for the individual judge, who will have the welfare of the child, the need to avoid delay and the need for a fair trial process fully in focus.
• Where a placement order has been made and remains in force, that order, for the reasons that I have given, remains valid unless and until it is either revoked under the statutory scheme in ACA 2002, s 24 or otherwise set aside on appeal. An adoption agency continues to be under a duty to comply with AAR 2005 and, in particular, before a decision is taken to place a child with prospective adopters both the agency's adoption panel and the agency decision maker must consider the child's permanence report. Where, by that stage, an earlier breach of the regulations has been identified, plainly the permanence report must be updated to include the required medical information.

 

See here for the full ruling.

 

Adoption UK welcomes the verdict, which will come as a big relief to the families whose adoption process has been paused because of the case, and to those families who have been understandably concerned that the failure of Somerset and other councils to follow regulations could have raised questions over the legality of adoptions. We will continue to update on this over the coming weeks, in the meantime should you wish to talk, please call our free Helpline:  0300 666 0006. You can also see our blog and advice page here: https://www.adoptionuk.org/the-implications-of-the-somerset-judgment