Local government – Adoption – Expert reports - Placement orders – Children

Re B (children) sub nom (1) MJ (mother) (2) LB (father) v (1) Local Authority (2) CB, AB, MB (by their guardian EE) (2008): CA (Civ Div) (Lords Justice Thorpe, Wall, Lady Justice Arden): 17 July 2008

The appellant parents (M and F) appealed against care orders made in respect of their three children and against a placement order made in relation to the youngest child (X).

In May 2007, following an allegation that the two elder children had been physically assaulted by F, all three ­children were accommodated by the first respondent local authority and then, after care proceedings were issued, placed with local authority ­foster parents. In the care proceedings, directions were made for a ­psychologist (G) to assess M and F and for a retired consultant child and adolescent psychiatrist (B) to assess the children. The local authority’s final care plan was for the two older ­children to remain together and for X to be adopted on his own outside the family. On 16 January 2008, the adoption panel met and recommended that X be placed for adoption. The reports of G and B were not made available to the panel. On the following day, the local authority’s director of social services endorsed the panel’s decision and the local authority applied straightaway for a placement order in respect of X. Hearing the case six weeks later, the recorder made care orders in respect of all three children and granted the placement order in relation to X. He acknowledged that there were deficiencies in the panel’s decision, but concluded that they had been rectified by the hearing before him, at which G and B had given evidence. He rejected a request to adjourn the hearing and to remit the panel’s recommendation to it for reconsideration, referring to the delay that would ensue. M and F argued that the decision-making process had been flawed, in that the local authority’s failure to provide the panel with G and B’s reports, or a proper summary of them, meant the panel had been given inaccurate information on material issues. Further, the panel’s recommendation had merely been rubber-stamped by the local authority in a brief, unminuted meeting at which there had been no proper discussion or sharing of information.

Held: (1) Care orders were inevitable. (2) The recorder should not have made the placement order and should not have refused to order a remission to the panel. The statutory framework laid down by Parliament in the Adoption and Children Act 2002 and the Adoption Agencies (Wales) Regulations 2005 could not be bypassed or short-circuited. The careful process set out therein had to be respected and scrupulously ­implemented. An application for a placement order could not properly be made by an adoption agency unless the agency decision-maker was ­satisfied that the child in question should be placed for adoption, and Parliament had laid down that the decision-maker could not be so ­satisfied unless he or she had properly considered the recommendation of the adoption panel. It had to follow that if the panel’s decision was flawed in any material respect, the decision-maker could not properly consider the recommendation, and thus could not be satisfied, in accordance with the process laid down by Parliament, that the child should be placed for adoption, P-B (A Child) (Placement Order), Re [2006] EWCA Civ 1016, [2007] 1 FLR 1106 followed. In the instant case, M and F’s criticisms of the information provided to the panel and of the local authority’s response to the panel’s recommendation were well-founded and serious errors had been made. The recorder should have remitted the panel’s recommendation for adoption to the panel for urgent reconsideration. Had he taken that course, the delay would have been minimal and the statutory framework would have been followed. In the circumstances, the only proper course was to set aside the placement order.

(3) In future, panel members should be made fully and properly aware of all the available material that was ­relevant to its decision. Further, the relevant local authority had to ensure that such material was accurate. It was also important that the local authority’s decision to proceed to apply for a placement order was ­properly made and minuted.

Appeal allowed in part.

Stephen Cobb QC, Graham Jones (solicitor-advocate) (instructed by Smith Llewellyn and T Llewellyn-Jones) for the appellants; Ruth Henke QC, Matthew Rees (instructed by in-house solicitor) for the first respondent; Michael Keehan QC, David Prosser (solicitor-advocate) (instructed by David Prosser Solicitors) for the second respondent.