Case No. FD21P00367

1.In May 2021, in the course of proceedings before the Court of Appeal (Re N (Children) [2021] EWCA Civ 785), it became clear that there had been a breach of the Adoption Agencies Regulations 2005 [‘AAR 2005’] with respect to a decision made by a local authority, acting as an adoption agency, to apply for an order authorising a child’s placement for adoption. The local authority was Somerset County Council [‘SCC’]. The breach involved a failure to obtain a report on the child’s health, or have advice from the agency medical adviser that such a report was unnecessary, as required by AAR 2005, reg 15. In addition the ‘child permanence report’ did not include a medical summary written by the agency medical adviser, as required by AAR 2005, r 17(1)(b). Once it was understood that these breaches had occurred it became apparent that, rather than being a one-off, the circumstances in Re N were, in fact, indicative of a systemic failure by SCC to adhere to the medical requirements of the AAR 2005 over the course of some years and involving adoption decisions made with respect to many children.2.Following an extensive internal review, SCC identified some 12 children, who were each the subject of a placement for adoption order made under the Adoption and Children Act 2002, s 21 [‘ACA 2002’], but whose further progress towards full adoption had been placed on hold pending clarification of their position, as a matter of law, because of an acknowledged breach of the medical elements of AAR 2005. SCC applied to the Family Division under Part 18 of the Family Procedure Rules 2010 [‘FPR 2010’] seeking a declaration that ‘the placement order made with respect to’ each child ‘was lawfully made’. The application was heard by Mrs Justice Roberts, who, following an extensive judgment handed down on 10 November 2021 [[2021] EWHC 3004 (Fam)], granted the declarations that were sought with respect to ten of the children (two children having been removed from this ‘primary cohort’ prior to the hearing due to the failure of their prospective adoptive placement). In addition to the primary cohort, SCC had identified some 200 to 300 other children (‘the wider cohort’), where similar breaches of the AAR 2005 had occurred, and where the children were either at an earlier stage in the adoption process, prior to the making of a placement order, or had actually been adopted. Again, SCC intended to use the procedure under FPR 2010, Part 18 to seek a declaration from the court concerning the validity either of its internal decisions as to the child’s suitability for adoption or, where adoption had already occurred, of the relevant adoption order.3.Publication of Roberts J’s judgment had, however, caused other local authorities to review their own position with the result that a number identified the same, or similar, breaches of the medical elements of the AAR 2005. Whilst the prospect of the court, in the person of Roberts J, reviewing individual decisions made in up to 300 SCC cases was itself a daunting one, the idea that this process might now need to be undertaken in courts up and down England and Wales for a large number of children, many of whom will have been in their adoptive homes for some years, led to the case being transferred to me, as President of the Family Division, for further consideration.4.The proceedings before the court remain those issued by SCC, who are represented by Mr Nicholas Goodwin QC. The other parties are the Clinical Commissioning Group [‘CCG’] for Somerset, represented by Mr Damian Garrido QC, the various children’s guardians who had been appointed in the substantive proceedings relating to the primary cohort, represented by Ms Cleo Perry QC and Ms Elizabeth Willsteed, and CAFCASS Legal acting as an Advocate to the Court, represented by Ms Alev Giz and Mr Jamie Niven-Phillips. At an early directions hearing the court invited the Secretary of State for Education to intervene, and I am most grateful that this invitation has been taken up and that the Secretary of State [‘S of S’] has been represented by Ms Hannah Slarks. Finally, the court has been assisted by written and oral submissions on behalf of CoramBAAF, by Ms Alexandra Conroy Harris.5.By the time of the final hearing before this court on 4 March 2022, it had become clear that many, if not a majority, of local authorities in England had realised that they, too, were likely to have been acting in breach of some aspect of the medical requirements of AAR 2005. The number of children that are potentially affected by this unfortunate situation is therefore likely to be very significant indeed.