Case No. FD21P00367

41.For SCC, Mr Goodwin has understandably referred to Re B (Placement Order) [2008] EWCA 835 as being an example of the Court of Appeal [Thorpe, Arden and Wall LJJ] setting aside a placement order on the basis of an adoption agency’s failure to follow the requirement under AAR 2005, as it was then, for all of the relevant papers to be referred to its adoption panel prior to the decision to apply for a placement order.42.Relying on Re B, Mr Goodwin submits that placement orders made where there has been an earlier non-compliance with the AAR 2005 will remain susceptible to challenge and such a challenge might result in a conclusion that the agency decision making was flawed. In turn, it is submitted, such a conclusion ‘might compel the court to set aside the resulting placement order’. 43.There can be no doubt about the great emphasis that Wall LJ placed upon procedural propriety in the context of adoption in Re B. In his skeleton argument, Mr Goodwin extracted the following quotation from Wall LJ’s judgment:“I do not think that the framework laid down by Parliament can be by-passed or short-circuited. … An application for a placement order cannot properly be made by an adoption agency unless the agency decision maker is satisfied that the child in question should be placed for adoption, and Parliament has laid down that the decision maker cannot be so satisfied unless he or she has properly considered the recommendation of the [agency adoption panel]. It must follow, in my judgment, that if the decision of the [panel] is flawed in any material respect then the decision maker cannot properly consider the recommendation, and thus cannot be satisfied – in accordance with the process laid down by Parliament – that the child in question should be placed for adoption.”44.Whilst those are undoubtedly Wall LJ’s words, and he clearly, and rightly, placed significant importance upon adherence to the statutory scheme with respect to adoption, it is also important to understand the particular context of Re B before making any conclusions as to the general applicability of that decision to every case where a breach of the regulations may have occurred and a placement order has been made. Three particular points fall to be made about the context:a)the regulatory breach in failing to brief the adoption panel properly had been expressly made known to the court and the appeal was therefore against the judge’s (a recorder in that case) decision, nevertheless, to make a placement order;b)the placement order was made in February 2008 and the appeal was heard just over 4 months later in July 2008, at a time when the children had not yet been placed for adoption;c)Re B followed relatively closely after Re P-B (Placement Order) [2006] EWCA Civ 1016 in which the Court of Appeal [Thorpe, Arden and Wilson LJJ] had also considered the adoption panel process, albeit in a different context. In Re P-B the court had expressly left open the question of the consequences of a court proceeding to make a placement order whilst ignorant of a regulatory breach by the adoption agency which might only come to light some time later.I propose to expand each of these points briefly in turn.45.The central focus of the appeal in Re B was that the recorder had made placement orders despite it being known that the adoption agency had failed to provide its adoption panel with the expert reports, or even an adequate summary of these reports and, further, that the social worker’s summary wrongly ascribed views to one of the experts (as to splitting the siblings) which he had not expressed. Before the recorder, the local authority had conceded that there had been ‘a serious error’ in the agency’s decision making process. Nevertheless, the court had proceeded to make placement orders, rather than adjourning the case for the decision to be retaken in accordance with the regulations. As with any appeal, the appeal was against the recorder’s decision; it was not against the adoption agency’s decision.46.Dealing with point (b), whilst incurring a delay which was plainly most unwelcome to the court, the appeal in Re B was heard at a time and at a stage in the children’s move through the care system at which it was possible to set aside the placement order and return the case for re-determination. That will not, as night follows day, be the situation in every case where a breach of the regulations has occurred. There are, therefore, dangers in holding that the decision in Re B has universal application.47.Turning to the third point, the caveat contained in the judgment of Arden LJ in Re P-B (who, along with Thorpe LJ, was also part of the constitution in Re B) is important when considering the situation presented to this court. There is a clear distinction between a placement order, or an adoption order, made by a court with its eyes wide open to the fact that there has been a serious breach of the regulations, and, on the other hand, orders that are made where the court is in ignorance of any such breach. In this regard the characterisation of ‘first actor’ and ‘second actor’ is of relevance. On this point the following was said by Arden LJ in Re P-B at paragraph 37:“I say nothing about the case where the local authority commences proceedings without, for whatever reason, fulfilling or properly fulfilling their statutory obligations under this regulation. Indeed, the position about that might not come to light for some time and the court might have proceeded to make an order. The resolution of that situation will have to await until it arises.”48.In Re B, the recorder had directly quoted the obiter observations of Arden LJ in Re P-B as providing some support for there being jurisdiction for a court to make a placement order despite knowing of ‘procedural difficulties’ during the agency decision making process. In her judgment in Re B, Arden LJ dealt firmly with the point:“[102] The last sentence of this paragraph of the judgment of the Recorder speculates about whether my judgment in P-B (a Child) which he quotes, indicated that there was a residual jurisdiction in the court to approve an adoption in a case where there have been “procedural difficulties” (depending on their severity).[103] The position with which I was dealing was a situation where those involved in an adoption did not discover that there had been a failure by the local authority to fulfil its statutory obligation until a much later date and after the date when the court had in fact proceeded to make the order. That presupposes that the court that made the order was in ignorance of this failure at the time that it made its order. That is an altogether different situation from that contemplated by the Recorder, which was that the court, knowing of procedural difficulties, would nonetheless decide to continue with the proceedings. The passage that the Recorder cited from my judgment gave no support for proceeding in that situation.”49.Drawing these three strands together, it can be seen that the decision in Re B, important though it is in emphasising the priority that must attach to the scheme which Parliament has established for adoption agency decision making, should not be taken as being of universal application. Further, it is not authority for the proposition that in every case the court will be compelled to set aside an otherwise valid placement order on the grounds of internal procedural error by the agency. In fact a fuller reading of the opening sentences of the paragraph in Wall LJ’s judgment quoted by Mr Goodwin makes this clear:“