Case No. FD21P00367

67.The fact that these proceedings have concluded with the dismissal of the local authority’s application for declarations does not in any manner indicate that the problem which gave rise to that application has been resolved or is not important. 68.The problem remains and it is now apparent that there has been widespread ignorance of, and non-compliance with, the health assessment requirements in AAR 2005. The court has not engaged at all with OFSTED, which has the responsibility for inspecting adoption agencies, but the extent of the apparent failure to abide by the regulations suggests that this is not an issue which has been picked up on inspection, amongst the many different requirements that OFSTED is responsible for regulating.69.In her judgment, Roberts J described the framework of regulation and guidance relating to the medical assessment of children, family members and adopters [see paragraphs 29 to 33]. In addition to the AAR 2005, local authorities in England must act under the general guidance issued by the Department for Education under Local Authority Social Services Act 1970, s 7 in July 2013 [see Roberts J paragraphs 30 to 32]. Local authorities in Wales must follow the Adoption Agencies Regulations 2005 Statutory Guidance issued by the National Assembly for Wales in 2006.70.In addition to the paragraphs of guidance cited by Roberts J [2.15 to 2.17], paragraphs 2.54 to 2.61 are also relevant. The importance of obtaining medical information on the child, in particular, is stressed at paragraph 2.59 of the English guidance:“Where the agency is seeking to obtain the parent’s written consent, the agency should emphasise the importance of health information and the central role it plays in anticipating and providing for the child’s current and future health needs.”The validity of that statement is obvious. Long-term, indeed life-long, plans are being made when a child is being considered for adoption. It is plainly crucial, both for those doing the planning and, in time, for those who are put forward as adopters, to know what, if any, specific health care needs a child may have now or in the future. The same point is made earlier at paragraph 2.35:“It is important to explain to the parent why it will be necessary to ask them for information about themselves and the child, including health and family health information. The social worker should emphasise how important this knowledge will be to provide current health care, and to enable plans to be made for the child now and in the future, and to satisfy the child’s needs for information throughout their life.”So far as adopters are concerned, paragraph 3.35 states that:“Agencies have a duty to satisfy themselves that prospective adopters have a reasonable expectation of continuing to enjoy good health.”71.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 AAR 2005. 72.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.73.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. To do otherwise would risk falling into the error of the recorder in Re B. 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.74.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.75.In the light of the judgment of Roberts J and of this judgment, local authorities can, from now on, expect courts to be vigilant in order to be satisfied that the medical requirements of AAR 2005 have been complied with before any pending adoption application is decided.