Abstract
Medical adviser’s input into ADM decision: breach of regulations
Somerset County Council v NHS Somerset Clinical Commissioning Group & Anor
High Court of Justice (Family Division) Roberts J
10 November 2021 [2021] EWHC 3004 (Fam)
In April 2021 a case was heard in the Court of Appeal in which the applicant noticed that the local authority had applied for a placement order on the basis of an Agency Decision-Maker’s (ADM) decision that had not been made in accordance with the Adoption Agencies Regulations 2005. That case prompted a widespread review of cases where placement orders had been obtained by Somerset County Council and gave rise to an application in a group of cases in which children were in the process of being matched with prospective adopters. The application was for a declaration under Part 18 of the Family Procedure Rules 2010 that the placement orders had been lawfully made, notwithstanding the accepted breach of the Regulations.
The local authority agreed that they had breached Regulations 15 and 17. At the time of the ADM decision, the agency did not have a health report from the agency medical adviser, or advice that one was not required. In addition, the Child’s Permanence Report did not include a summary, written by the agency medical adviser, of the state of the child’s health.
The court found that the breaches of the Regulations were not merely matters of form which could be easily rectified, but potentially of substance. In each case, the court reviewed the medical reports that had been available to the ADM at the time of decision, and subsequent medical reports. In each case, the court came to the conclusion that the ADM had sufficient medical information before her at the time of making the decision, and that the medical adviser would have been unlikely to recommend further examination. The declarations were therefore made that the decisions and the subsequent placement orders were lawfully made.
The court also considered the appointment of the medical adviser, which is required by Regulation 9. There was no formal document setting out the terms of appointment, but the court was satisfied from correspondence made available that the medical adviser had been properly appointed and subject to appropriate supervision and training.
Comment
This hearing forms part of a series of cases in which the court are considering the position of up to as many as 500 children in placement order proceedings, subject to placement orders, or adopted after placement for adoption by Somerset County Council. The court were told in the course of argument that Somerset was not alone in breaching the Regulations in this or similar ways. This has subsequently proved to be the case and although numbers are not clear, there are many local authorities who have had to delay placement of children for adoption pending the outcome of further hearings and guidance from the Family Division about how these cases should be approached in the future. In this case, the placements of 10 children were delayed for over six months. Preparing for and obtaining the declarations occupied vast quantities of social work and court time, and to duplicate the efforts across all local authorities who may have similarly breached the Regulations would be extremely disruptive to the general work of the adoption agencies and the courts. In addition, it would cause significant disruption and delay to hundreds of children, with inevitable negative consequences for their attachment and the stability of their eventual adoptive placements.
The President of the Family Division is to hear a case from the next cohort of children affected – those who have been placed for adoption but not yet adopted – in March 2022 and expected to issue guidance to the courts on how these cases should be approached.
Adoption: unconventional family relationship
Re YP (Adoption of 18-year-old)
High Court of Justice Family Division, Arbuthnot J
26 November 2021 [2021] EWHC 3168 (Fam)
A is an 88-year-old Swiss man living in London. He was married to R, a Spanish woman who resides in Switzerland. After A and R divorced, she had a son, YP, with X. X never lived with R and YP, but he and his family had contact every month or two with YP. YP and R lived in Switzerland and from the age of about three, YP regarded A as his father figure; A visited him in Switzerland and YP spent holidays either in London with A, or travelling with him. R and A describe their relationship as being good friends, in a committed family relationship.
The day before YP turned 18, A issued an application to adopt YP, with the intention of having legal recognition of their relationship. A was habitually resident in England and is therefore entitled to make an application in the courts of England and Wales. He made the application as a ‘partner of a parent’ which is defined in section 144(7) of the Adoption and Children Act 2002 as ‘two people … living as partners in an enduring family relationship’. The court heard that A and R, although divorced, do not have other partners and spend time visiting each other in Switzerland and London; they have a mutually supportive relationship. They regard themselves and YP as a family unit despite living in different homes in different countries.
The court also had to consider whether YP had ‘had his home’ with A for the six months before the application for adoption, as required by section 42(3) of the Adoption and Children Act 2002. YP had his own bedroom in A’s flat in London but had not been able to travel to England in school holidays as he normally would have done because of Covid. A had spent four of those months in Switzerland, living in his own flat but seeing YP or being in touch constantly. Both A and YP (but not R) had obtained pre-settled status in the UK and the intention was for YP to move to London on finishing school. In the event, YP chose to attend university in Switzerland.
Held
The court were satisfied that R and A were living as ‘partners in an enduring family relationship’ which allowed A to apply for a ‘step-parent adoption’ under section 51(2). The court considered that the courts have applied a ‘wide and flexible’ definition of home and that there was no definition of home in the Act. The Act does not require that the child be continuously in the care of the proposed adopter, nor that the adopter and child have to share the same residence. The court found that ‘home’ will never be seen merely in a physical or geographical context: ‘“Home” is a place where there is an emotional connection.’ In the context of an 18-year-old who regards A as his father and has an emotional bond with him, it could be found that YP’s home is with A despite not living in the same country.
The court considered other issues relating to YP’s interest in remaining part of his paternal birth family and the effect of an adoption on A’s adult children, whom YP did not know, and decided that it was in YP’s best interests to make an adoption order.
Comment
This is the latest in a line of cases in which the courts have made some interesting and liberal interpretations of family relationships to allow the legal recognition by adoption of some unconventional family arrangements. Where the child’s welfare requires an adoption order, the courts are willing to stretch concepts of family, partners and home to enable orders to be made.